Amended Complaint Filed Too Late

Deborah Elkins//July 18, 2011

Amended Complaint Filed Too Late

Deborah Elkins//July 18, 2011

Although a Loudoun County Circuit Court gave plaintiff leave to amend its complaint after the court sustained one defendant’s demurrer and the parties agreed among themselves that plaintiff could file a global amended complaint against all defendants, plaintiff did not file its amended complaint within the time specified by the court, and the court dismisses the case against the defendant.

On Nov. 12, 2010, plaintiffs filed a complaint against defendants. On March 4, 2011, this court sustained defendants limited partnership’s demurrer and gave plaintiffs leave to amend their complaint against the partnership on or before April 18, 2011. This court was to hear a second and third demurrer for other parties to this suit on April 4, 2011, postponed to April 19. Prior to the April 4 hearing, the parties agreed out of court that plaintiffs would submit a global amended complaint after the court heard all three demurrers, rather than submitting two separate amended complaints.

On May 3, 2010, plaintiffs filed their global amended complaint as to all defendants. Defendant partnership moves to dismiss itself from the amended complaint on grounds that the court sustained the partnership’s demurrer and plaintiffs failed to file an amended complaint by the date required in the March 4, 2011 order.
This court sustained the partnership’s demurrer dismissing the case against them. However, this court gave plaintiffs leave to amend within 21 days, an option they failed to exercise within the ordered time. Plaintiffs failed to meet the conditions of the March 4, 2011 order, which allowed plaintiffs to file an amended complaint by April 18, 2011. Plaintiffs ultimately filed the amended complaint on May 3, 2011. By filing it past the date it was conditioned on, plaintiffs no longer had leave by the court to file it.

Plaintiffs alternatively argue that, in light of the counselor’s out-of-court agreement to file a global amended complaint, the court ought to modify the March 4, 2011, order sustaining defendants’ demurrer nunc pro tunc. Such an order cannot create a fiction that an act not yet performed has already occurred. It is well-established that an extension to a filing date must be granted before the deadline occurs.

To enter an order nunc pro tunc with a later filing date would be to create a fiction that the plaintiff had timely filed for a leave to extend the original filing date. Such an order would be beyond the scope of the powers of this court and will not be entered.

Once the hearing date for the other demurrers was moved to April 19, 2011, it was the responsibility of plaintiffs to file separate amended complaints or to request an extension.

Given no demonstrable extenuating circumstances, plaintiffs’ failure to file their amended complaint on time or request an extension must be dispositive.

Bates v. Merritt (Horne) Law No. 64554, June 29, 2011; Loudoun County Cir.Ct.; R. Peyton Mahaffey, Andrew J. Terrell, Wayne F. Cyron for the parties. VLW 011-8-130, 4 pp.

VLW 011-8-130

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