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  1. #1
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    Question Handling Ongoing Harm Related to the Same Cause of Action

    I have a general question about pleadings, discovery and damages. Say I have a complaint for Defamation, and in the core complaint it's due to somebody publishing a defamatory magazine article in April. The complaint is filed in May and the defendant is served by the end of May. In the beginning of June, the Defendant files a Motion to Dismiss, and later that month, the same person (defendant) publishes another defamatory article in another magazine, and then in July, another. And finally in August, the court comes back and denies the Defendants Motion to Dismiss stating the April article was defamatory and it survives dismissal.

    Since the Court gave the green light for the Defamation cause of action (i.e. it survives dismissal), how do I handle integrating the June and July publications into the case so I can seek damages for them as well? Do I need to amend the Complaint in order to do this, or because the Defamation cause of action was given a green light, is this done during Discovery, or during trial, or with additional declarations?

    I'm confused on how to integrate ongoing and new "acts" by the same defendant that fall within a same core cause of action within a complaint that take place while the Court is processing the case.

  2. #2
    Join Date
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    2,350

    Default Re: Handling Ongoing Harm Related to the Same Cause of Action

    Most states, including Florida here, allows you as a matter of right to amend your civil complaint once without leave of the court.

    As the new defamations are just that, not just continued use of the original article, you need to amend your complaint. You could do that now, but there really is no rush. Do not be hasty.

    Most states do not allow a claim for punitive damages in the complaint, so if that is your state too, then file a motion to amend for punitive damages.

    Sometimes I file a complaint and the defendants discover something I did not, but any good attorney and the bad ones too are not going to file an answer, they are going to file a motion to dismiss or if the complaint is really poor, a summary judgment motion.

    After that motion is filed (and I do multiple party cases) or all the defendants have filed their motions and scheduled them for hearing, a week before the hearing I file an amended complaint fixing the problems and making it stronger. That makes all the motions filed moot, and then they have to file new motions for the new complaint, or answer it. Judges like saving the time though they will say I should play nice while the other lawyers go steaming away.

    No, you can't wait until discovery, you will be screwing yourself. Nor can you do it during trial, that would be impossible. We don't use declarations in Florida so no idea what that is?

    An ongoing act is just one tort, it is the single publication rule. If it is in print and online, that is a single publication.

    Many states have press retraction laws where you have to give the media formal notice to allow a retraction before you file suit. Make sure you follow the law. If you didn't do it, your case could be dismissed, but as there already was a motion to dismiss denied that doesn't sound like it applies. But if it does, make sure serve retraction notices on the new defamation before you file suit.

  3. #3
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    Default Re: Handling Ongoing Harm Related to the Same Cause of Action

    Depending upon the rules of procedure for whatever state is involved, the full facts and damages, you might file a new lawsuit over the new actions and seek to consolidate, or amend your complaint (which would likely require a stipulation by the defense or leave from the court) to include the new acts in your ongoing lawsuit. Amendment is normally done as early in the case as possible, as the court typically won't want to reopen (and may not want to extend) discovery.

  4. #4
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    Default Re: Handling Ongoing Harm Related to the Same Cause of Action

    So, to follow-up on the original thought process, in order to seek damages for the June and July defamatory posts, the only way to pursue damages for those posts is to Amend the original complaint?

    One issue I see here is when does it stop? i.e. if the person engages in defamatory behavior on a monthly basis, how does one keep up with that? I figured if the core cause of action (i.e. defamation) survived dismissal that the additional acts of defamation made AFTER filing the complaint could be expanded via discovery rather than amendment since they qualify as defamation.

  5. #5
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    Default Re: Handling Ongoing Harm Related to the Same Cause of Action

    At risk of repeating myself, depending upon the rules of procedure for whatever state is involved, the full facts and damages, you might file a new lawsuit over the new actions and seek to consolidate, or amend your complaint (which would likely require a stipulation by the defense or leave from the court) to include the new acts in your ongoing lawsuit.

    If you believe you have grounds for injunctive relief, seek injunctive relief.

    (Laws and court procedures have not stopped being different in each state since you were first instructed to identify the state involved.)

    Assuming this is Superior Court in Washington,
    Quote Quoting Rule CR 15(a). Amended and Supplemental Pleadings.
    (a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise, a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. If a party moves to amend a pleading, a copy of the proposed amended pleading, denominated "proposed" and unsigned, shall be attached to the motion. If a motion to amend is granted, the moving party shall thereafter file the amended pleading and, pursuant to rule 5, serve a copy thereof on all other parties. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

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