motion to dismiss for insufficient service of processmotion to dismiss for insufficient service of process

(1937) Rules 106112; English Rules Under the Judicature Act (The Annual Practice, 1937) O. A Motion to Dismiss is often filed with the court at the earliest stages of the lawsuit, typically before either party has conducted their discovery. Sally filed a complaint against George and process was served on Day 1. Special appearance was a term of art. Two years later, the defendant filed a motion to dismiss, alleging insufficient service of process of the lawsuit. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. Fed. In a diversity case, the motion to dismiss for lack of subject-matter jurisdiction can turn on whether a party acquired citizenship by moving to a new state, a matter that requires a finding of fact about the partys actions and intent. P. 12(a)(4)(A). Please try again. The Perks of Technology in Communication.pdf, INDT Tokens Pegged to the British Pound Sterling, No public clipboards found for this slide, Enjoy access to millions of presentations, documents, ebooks, audiobooks, magazines, and more. I. The codes provided a demurrer to handle both tasks. It was transferred to this District on March 17, 2021. 1944) 8 Fed.Rules Serv. The party may join all motions under Rule 12 into a single motion. Mere "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. . Ruling on a Motion to Dismiss PDF REPORTED OF MARYLAND September Term, 2013 CONWELL LAW LLC v. The defendant who returns the waiver is given additional time for answer in order to assure that it loses nothing by waiving service of process. Motions to dismiss are governed by Federal Rule of Civil Procedure 12 (b), and generally include dismissal on the following grounds: 12 (b) (1) - Lack of Subject Matter Jurisdiction A motion to dismiss is filed when a party believes that the complaint is legally invalid, which can be based on a variety of grounds. of demonstrating effective service, the court has discretion to either dismiss or retain the action. A preliminary motion raising one of the Rule 12(b) defenses postpones the time for filing the answer until after the court has ruled on the motion. MOTION TO DISMISS FOR INADEQUATE SERVICE OF PROCESS . (As amended Dec. 27, 1946, eff. Co. (C.C.A.8th, 1945) 150 F.(2d) 997, aff'g 62 F.Supp. P. 15(a)(1)(A) allows the complaint to be amended once as a matter of course before being served with a responsive pleading. While the answer is the responsive pleading to the complaint, no responsive pleading to the answer is usually permitted [unless the court orders a reply pursuant to Fed. First, Fed. This cookie is set by GDPR Cookie Consent plugin. Rule 12(b)(6), permitting a motion to dismiss for failure of the complaint to state a claim on which relief can be granted, is substantially the same as the old demurrer for failure of a pleading to state a cause of action. Note to Subdivisions (e) and (f). Defendants then moved to dismiss on the grounds of insufficient service of process under Federal Rule of Civil Procedure 12(b)(5), lack of personal jurisdiction under Federal Rule of . Enjoy access to millions of ebooks, audiobooks, magazines, and more from Scribd. As the courts are already dealing with cases in this way, the effect of this amendment is really only to define the practice carefully and apply the requirements of the summary judgment rule in the disposition of the motion. P. 12(b)(5) for Insufficient Service of Process. 1946) 9 Fed.Rules Serv. P. 12(b)(4)], and insufficient service of process [Fed. %PDF-1.6 % Be sure to take your Federal Rules rulebook with you to the computer. On Day 40, the trial court held a hearing on the Rule 12(b)(1) motion and ruled in favor of Sally. Q7(a). The decisions were divided. 440; United States v. Turner Milk Co. (N.D.Ill. Plaintiff . endstream endobj 184 0 obj <. With the exception of dismissal for failure to state a claim upon which relief can be granted, all of the grounds for dismissal are separable from the merits. Copyright 2023, Thomson Reuters. 1958); P. Beiersdorf & Co. v. Duke Laboratories, Inc., 10 F.R.D. When a defendant has a defense of improper venue or lack of jurisdiction, the court should rule on that defense before the parties develop the merits of the case, which may later be dismissed because it was brought in the wrong court. den. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion. R. Civ. (Remington, 1932) p. 160, Rule VI (e) and (f). R. Civ. Citing Tenn. R. Civ. Pretrial motions can resolve many important questions about your lawsuit. Notes of Advisory Committee on Rules1993 Amendment. This amendment conforms to the amendment of Rule 4(e). We do not discuss other possible preliminary motions, such as a motion for more definite statement or a motion to strike. (Return to text), [iv] A motion to dismiss for insufficient process is properly brought only when the form of the process is defective. 553 (2000); see also State v. Stone, 323 N.C. 447, 452 (1988) ("Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of They can subscribe to the author's weekly California and P. 7(a). Fed. 296; Eastman Kodak Co. v. McAuley (S.D.N.Y. Meeting with a lawyer can help you understand your options and how to best protect your rights. R. Civ. Yes, with minor qualifications. 643; Brown v. H. L. Green Co. (S.D.N.Y. . The string could continue through multiple preliminary motions. (e) Motion for a More Definite Statement. The defense of lack of subject-matter jurisdiction is considered nearsacred because it protects the division of powers between federal courts and state courts inherent in federalism. Unless the court sets a different time, serving a motion under this rule alters these periods as follows: (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or. Yes. P. 1.140 (b) has some defenses that can be raised in a motion to dismiss. The Ninth Circuit Court of Appeals has stated that, if the plaintiff is unable to satisfy its burden (3) United States Officers or Employees Sued in an Individual Capacity. 12e.231, Case 6; Pedersen v. Standard Accident Ins. P. 7(a)] and more than 20 days have passed since service of the answer [see Fed. 1. 72 (S.D.N.Y. Yes. EEOC v. Wedco, Inc. - Racial Harassment Lawsuit. 2. 3. 14; Clark, Code Pleading (1928) pp. P. 12(g)(1). (Return to text), [ii] If a party so moves, any defense listed in Rule 12(b)(1)-(7)whether made in a pleading or by motionand a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial. Fed. filed under the circumstances described in Rule 12(g)(2). Exercise Six - Joinder and Supplemental Jurisdiction, 9. If the ruling is on some incidental question . P. 12(h)(1)(B)(ii) allows a defense omitted from the answer to be saved by amendment of the pleading made as a matter of course. 9-11-12 (g). Stay up-to-date with how the law affects your life. (h) Waiving and Preserving Certain Defenses. Q7(b). So, you may wonder, do you have another option? This section contains questions for you to answer to test and strengthen your knowledge of waiver of Rule 12 defenses. (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. Is there a need to decide the seven defenses before the rest of the lawsuit because they raise especially important issues? A defendant who challenged jurisdiction and at the same time pleaded to the merits of the complaint obviously called on the power of the court; this was a general appearance. Thus, it's generally difficult to prevail on a motion to dismiss. All of this has been swept aside in practice in federal courts and in state court systems patterned after the Federal Rules. Thus if the defendant moves before answer to dismiss the complaint for failure to state a claim, he is barred from making a further motion presenting the defense of improper venue, if that defense was available to him when he made his original motion. George may amend the answer and save the venue defense. A defendant could also consent, or waive objection, to personal jurisdiction more subtly. Similarly, the defense of insufficient service of process can be raised successfully if the plaintiff served an employee of a corporation who was not an officer, managing or general agent, or process agent within the meaning of Rule 4(h)(1)(B). 79 0 obj <> endobj Co. v. Edward Katzinger Co. (C.C.A.7th, 1941) 123 F.(2d) 518; Louisiana Farmers Protective Union, Inc. v. Great Atlantic & Pacific Tea Co. of America, Inc. (C.C.A.8th, 1942) 131 F.(2d) 419; Publicity Bldg. Dec. 1, 2009. 12e.231, Case 7, 3 F.R.D. This type of motion may focus on the facts and allegations in the complaint and any documents - called "exhibits" - that are submitted in support of the complaint. P. 7(a)(7)], Fed. These include dismissals for: For more on motions to dismiss, see this American Bar Association article, this St John's Law Review article, and this Touro Law Review article. But a party may assert the following defenses by motion: (6) failure to state a claim upon which relief can be granted; and. the adoption of the rule was ill advised. 1. A party waives any defense listed in Rule 12(b)(2)(5) by: (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or, (i) make it by motion under this rule; or. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. The addition of the phrase relating to indispensable parties is one of necessity. The words or to prepare for trialeliminated by the proposed amendmenthave sometimes been seized upon as grounds for compulsory statement in the opposing pleading of all the details which the movant would have to meet at the trial. Some common grounds for filing a motion to dismiss include: For other possible grounds for filing a motion to dismiss, remember to check the rules of civil or criminal procedure in the state where the lawsuit was filed. the insufficiency of service before filing any answer to a complaint. You also have the option to opt-out of these cookies. P. 12(b). The next day, George filed a motion under Rule 12(b)(2) to dismiss for lack of personal jurisdiction. For example, a defendant made a general appearance by such actions as opposing plaintiffs motion to amend the complaint, engaging in discovery, challenging the legal sufficiency of the complaint, or possibly even informing the court that it chose not to appear. (2) Limitation on Further Motions. The other party then has the opportunity to respond to the motion, usually within a couple of weeks. If you enjoy this tell others about it. has demonstrated not only that the office of the bill of particulars is fast becoming obsolete . 134; Urquhart v. American-La France Foamite Corp. (App.D.C. U.S.C., Title 28, [former] 45, substantially continued by this rule, provides: No replication need be filed to the answer, and objections to the sufficiency of the petition or answer as not setting forth a cause of action or defense must be taken at the final hearing or by motion to dismiss the petition based on said grounds, which motion may be made at any time before answer is filed. Compare Calif.Code Civ.Proc. Due process is not met where a Defendant is unable to read, speak or comprehend the language in which notice to the Defendant is provided. Rule 12(h)(1)(B) provides that the venue defense is waived if it is omitted from a Rule 12 motion, or no motion having been made, if it is omitted from a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. Here the amendment is permitted as a matter of course because no responsive pleading is normally permitted to an answer [see Fed. 12(b)(5)]. Activate your 30 day free trialto continue reading. These cookies ensure basic functionalities and security features of the website, anonymously. A motion to dismiss can be filed by either party in a case at any time during the proceedings, but it's usually filed by a defendant at the beginning of a lawsuit. Description - Motion To Dismiss For Insufficient Service Of Process. plaintiff bears the burden of establishing the validity of service as governed by Rule 4. 643; Teiger v. Stephan Oderwald, Inc. (S.D.N.Y. A defendant who brings a preliminary motion to dismiss that asserts fewer than all of the defenses and later attempts to assert an additional Rule 12(b) defense for the first time in the answer will in most instances waive it, as discussed in I.A.3, infra. Federal Rule 12(b) has abolished the special appearance: No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.. Further, "The person . hb```aB ?60$64> %%pK\B33*3p1~-sEc\{]`s O 96 0 obj <>stream Due process prohibits a Defendant from . Some courts have held that as the rule by its terms refers to statements in the complaint, extraneous matter on affidavits, depositions or otherwise, may not be introduced in support of the motion, or to resist it. The questions in the written exercise and the computer-assisted lesson examine these rules and statutes, consider the reasons for special treatment of Rule 12 defenses, and analyze the waiver provisions of the rule. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. . It will also be observed that if a motion under Rule 12(b)(6) is thus converted into a summary judgment motion, the amendment insures that both parties shall be given a reasonable opportunity to submit affidavits and extraneous proofs to avoid taking a party by surprise through the conversion of the motion into a motion for summary judgment. Sample complaint for rescission of contract in California. Therefore, under Rule 12(h)(1)(B), the defense of lack of personal jurisdiction has been waived. R. Civ. Q8. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 12e.244, Case 9. (Remington, 1932) p. 160, Rule VI (e). On the other hand, in many cases the district courts have permitted the introduction of such material. Note to Subdivision (h). Should defendant choose that course of defense, and the motion prove unsuccessful, defendant is allowed 10 days after service of the court's unfavorable decision on the motion to answer. An action against a former officer or employee of the United States is covered by subparagraph (3)(B) in the same way as an action against a present officer or employee. Opposing waiver, see Phillips v. Baker, 121 F.2d 752 (9th Cir. Q5. Instead of answering within that 20-day period, defendant may choose to make a preliminary Rule 12(b) motion to dismiss. 678; Yale Transport Corp. v. Yellow Truck & Coach Mfg. All 7 sub-sections of 12(b) may be used as grounds for a motion for dismissal. In this manner and to this extent the amendment regularizes the practice above described. The other party then has the opportunity to respond to the motion, usually within a couple of weeks. A Motion to Quash Service of Summons challenges Plaintiff's improper Service of Summons and Complaint. [iv] .These defenses must be consolidated into any preliminary motion brought under rule 12 [Fed. Watt, 643 F.2d 618, 624 (9th Cir.1981)). CA Service Laws - Process Server Institute Option one is to raise any and all of the defenses in the answer. On Day 10, George made a Rule 26(c) motion for a protective order, claiming that the interrogatories were burdensome and vexatious. Sally filed and served a complaint against George on Day 1. Attorneys or parties in civil litigation in United States District Court who wish to view a sample 399, the failure to join an indispensable party was raised under Rule 12(c). And it has been urged from the bench that the phrase be stricken. This cookie is set by GDPR Cookie Consent plugin. For example, if neither party has an issue with venue where the case was filed, the court may still dismiss the case for improper venue. Has George waived his venue defense? NEW ENGLAND COMPOUNDING PROOF OF CLAIMS DUE 1/15/14, 06/27/11: Response to DOJ Motion Opposing Amicus Brief, Mandamus actions in immigration avoiding dismissal and proving the case. They are presented for illustration purposes only. Insufficient service of process means that the summons was not properly served. Mar. The answer is the responsive pleading required to the complaint. Nat'l Bank, 538 F.2d 1387, 1389 (9th Cir. R. Civ. Fed. Will this amendment save the personal jurisdiction defense? Subject matter jurisdiction is granted by constitution and statutes, not by action of the parties. Under the original rule defenses which could be raised by motion were divided into two groups which could be the subjects of two successive motions. R. Civ. 21; Schenley Distillers Corp. v. Renken (E.D.S.C. The alteration of the except clause requires that other than provided in subdivision (h) a party who resorts to a motion to raise defenses specified in the rule, must include in one motion all that are then available to him. The defense of personal jurisdiction was waived by failure to join it in the Rule 12 motion. 12e.244, Case 10 (The courts have never favored that portion of the rules which undertook to justify a motion of this kind for the purpose of aiding counsel in preparing his case for trial.). (Doc. Q9. Under Rule 12(h)(1), the defense of insufficiency of service is waived if omitted from a motion Rule 12(b) provides a party may assert the following defenses by motion. The defendant has two options: 1) raise the defenses in a preliminary motion, or 2) raise the defenses in the answer, provided that they have not been waived by omission from a preliminary motion. Instant access to millions of ebooks, audiobooks, magazines, podcasts and more. 68 of International Association of Machinists v. Forrestal (N.D.Cal. The amendments are technical. Federal Rules of Civil Procedure (FRCP) The Federal Rules of Civil Procedure contains the guidelines for the motion to dismiss. The law is also settled that once a defendant challenges the sufficiency of service on them, the In his answer, George responded to the allegations in Sallys complaint and also raised the defenses of failure to state a claim upon which relief could be granted, lack of personal jurisdiction, expiration of the statute of limitations, res judicata, and improper venue. Otherwise, you are left to challenge the process . This is done when the defendant believes a claim in the lawsuit is legally invalid, or there are legitimate grounds for throwing the case out of court. process and failure to state a claim in a single motion, see also Am. 467 (E.D.Wis. P. 12(b)(1)] cannot be waived. Amended subdivision (g) is to the same effect. Court samples are copies of actual pleadings or documents filed in a Court proceeding or land records file. Sally filed a complaint against George and process was served on Day 1. Mississippi Motion to Dismiss for Insufficiency of Service of Process The cookie is used to store the user consent for the cookies in the category "Performance". Now customize the name of a clipboard to store your clips. 1986) In federal proceedings, a motion to dismiss the case is proper when the court lacks subject matter or personal jurisdiction, when venue is improper, when process (the summons) or service of process is insufficient, when the complaint fails to state a claim upon which relief can be granted, or when a necessary party has P. 12(h)(2) provides that the defenses of failure to state a claim [Fed. R. Civ. See 6 Tenn.Code Ann. R. Civ. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. Fed. P. 12(h): (1) When Some Are Waived. Motion to dismiss a complaint for insufficient service of process under Rule 12(b)(5) of the Federal Rules of Civil Procedure is the topic of this document. (Deering, 1937) 434; 2 Minn.Stat. I can advise you this service - www.HelpWriting.net Bought essay here. Learn more about FindLaws newsletters, including our terms of use and privacy policy. P. 12(a)(4)(A). Sally filed a complaint against George and process was served on Day 1. Co. (W.D.Mo. Subdivision (g). A motion to dismiss can be filed on a variety of grounds, which are based on legal deficiencies. (9th Cir.1982). 1958). Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. Consequently, this exercise is narrower than Exercise Three. See Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. Q4. Q6. Do the seven defenses involve matters that can be severed for separate determination because they do not go to the merits of the lawsuit? Q1(c). On Day 35, George attempted to amend his answer to assert the defense of lack of personal jurisdiction. 1391(a) [venue] and 1404(a) [transfer of venue]. endstream endobj startxref Subdivision (e). Nos. For example: If you are suing someone in small claims court over a civil case, every state has different rules about how that complaint is to be presented to the other party. See also the Advisory Committee's Note to amended Rule 4(b). http://www.scribd.com/doc/137724076/Sample-Motion-to-Dismiss-Under-Rule-12-b-5-in- The operative language is in Rule 12(g)(2), which requires consolidation when a motion has been made under this rule, i.e., under Rule 12. Note: for those who file a federal claim in the federal courts, there is an independent and distinct "service of process" procedure to follow under federal law. Fed. Doing so allows a movant (defendant) to determine the exact facts relied upon by the process server, in order to confront those facts head on. R. Civ. The addition at the end of subdivision (b) makes it clear that on a motion under Rule 12(b)(6) extraneous material may not be considered if the court excludes it, but that if the court does not exclude such material the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. 371381. Without filing any preliminary motions, George filed an answer on Day 10 in which, in addition to responding to allegations in Sallys complaint, he raised the defenses of lack of personal jurisdiction, lack of subject-matter jurisdiction, failure to state a claim upon which relief could be granted, improper venue, and expiration of the statute of limitations. To serve the United States, a party must serve: (1) the U.S. Attorney's Office by 3. R. Civ. These cookies track visitors across websites and collect information to provide customized ads. And see Indemnity Ins. 282 (S.D.N.Y. [A defendant waiving service is allowed a response time of 60 days (90 days if defendant was addressed outside any federal judicial district). Process was served on Day 1. That motion was granted. When the special appearance was successful, the case was dismissed and defendant went home happy. The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional". Will this amendment save the venue defense? Click here to review the details. P. 12(h)(1) are waived if omitted from a preliminary motion to dismiss made under this rule. These four waivable defenses are lack of personal jurisdiction [Fed. Answer the question, then scroll down to compare your answer to the authors answer. 1940) 34 F.Supp. Insufficient Service Of Process: More Than A Technical Defense Time is needed for the United States to determine whether to provide representation to the defendant officer or employee. 1945) 8 Fed.Rules Serv. Rule 12(h)(3) provides that the defense of subject-matter jurisdiction may be raised at any time. It may also be raised by the court on its own motion. (1943) 317 U.S. 695; Gallup v. Caldwell (C.C.A.3d, 1941) 120 F.(2d) 90; Central Mexico Light & Power Co. v. Munch (C.C.A.2d, 1940) 116 F.(2d) 85; National Labor Relations Board v. Montgomery Ward & Co. (App.D.C. 1976). Changes Made After Publication and Comment. Former Rule 12(a)(4)(A) referred to an order that postpones disposition of a motion until the trial on the merits. Rule 12(a)(4) now refers to postponing disposition until trial. The new expression avoids the ambiguity that inheres in trial on the merits, which may become confusing when there is a separate trial of a single issue or another event different from a single all-encompassing trial. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. For example, the summons and complaint were not properly provided to the defendant. (i) Hearing Before Trial. 1941) 36 F.Supp. Firms, federal rules of civil or criminal procedure. As previously mentioned, the procedure for filing a motion to dismiss will depend on the jurisdiction in which the lawsuit is filed. 1945) 164 P.2d 380 (construing New Mexico rule identical with Rule 12(b)(6); F. E. Myers & Bros. Co. v. Gould Pumps, Inc. (W.D.N.Y. Subdivision (a) is divided into paragraphs for greater clarity, and paragraph (1)(B) is added to reflect amendments to Rule 4. U.S.C., Title 28, 763 [now 547] (Petition in action against United States; service; appearance by district attorney) provides that the United States as a defendant shall have 60 days within which to answer or otherwise defend. (C.C.A.8th, 1940) 108 F.(2d) 302; Rossiter v. Vogel (C.C.A.2d, 1943) 134 F.(2d) 908, compare s. c. (C.C.A.2d, 1945) 148 F.(2d) 292; Karl Kiefer Machine Co. v. United States Bottlers Machinery Co. (C.C.A.7th, 1940) 113 F.(2d) 356; Chicago Metallic Mfg. den. The failure to do so can have a negative impact on your case. Not all of the issues are important. Q2. Has George waived his personal jurisdiction defense? REPORT AND RECOMMENDATIONS re 26 MOTION to Dismiss for Insufficient Instructions. If it's granted, the case can be dismissed "without prejudice" or "with prejudice." With the exception of the motion to dismiss for failure to state a claim [Rule 12(b)(6)], all of the listed defenses require findings of fact if the factual basis for them is contested. R. Civ. Q7(d). 1943) 8 Fed.Rules Serv. These changes are intended to be stylistic only. P. 12(b)(2)],[iii] . If the plaintiff fails to obtain proper service upon the defendant, the lawsuit must be dismissed due to the court's lack of jurisdiction. . The next day, George filed a motion under Rule 12(b)(3) to dismiss for improper venue. See Charles A. Wright & Mary Kay Kane, The Law of Federal Courts 7 (6th ed. Here, the period during which the answer could be amended as a matter of course has elapsed, since no responsive pleading is normally permitted to an answer [see Fed. R. Civ. R. Civ. See the Advisory Committee's Note to Rule 19, as amended, especially the third paragraph therein before the caption Subdivision (c).. Search, Browse Law For example, defendant could move to dismiss for insufficient service of process; following denial of that motion, defendant could move to dismiss for improper venue. With the exceptions of dismissal for failure to join a Rule 19 party and failure to state a claim, all of the grounds for dismissal render the court powerless to act in the case because of a defect in jurisdiction, venue, or service of process. See Rule 15(a) for time within which to plead to an amended pleading. Has George waived the defense of failure to state a claim upon which relief could be granted? Fed. assert the following defenses by motion: (5) insufficient service of process. The common law provided a plea in abatement to attack jurisdiction and a demurrer to attack the legal sufficiency of a complaint. vii [105408] (1934); Wash.Gen.Rules of the Superior Courts, 1 Wash.Rev.Stat.Ann. R. Civ. A motion to dismiss is a formal request for a court to dismiss a case. R. Civ. FRCP41(a)allows for voluntary dismissal, whichcan be filed by the plaintiffwith and without a court order.
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