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Old February 6th 10, 02:24 AM posted to rec.games.chess.politics
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First recorded activity by ChessBanter: Jun 2009
Posts: 406
Default Judge Martinez can kisss my ass, the Clerk of the Western District isFULL OF ****

See point #5

Peterson Steels, Inc. v. Seidmon, 7 Cir., 188 F.2d 193.


« up292 F.2d 140
Eugene M. FUHRER, Plaintiff-Appellant,
v.
Malcolm W. FUHRER, Defendant-Appellee.
No. 13267.
United States Court of Appeals Seventh Circuit.
June 28, 1961.
Isidor Kahn, Milford M. Miller, Harry P. Dees, William C. Welborn,
Evansville, Ind., for Plaintiff-appellant, Kahn, Dees, Donovan & Kahn,
Welborn & Miller, Evansville, Ind., of counsel.

Frederick P. Bamberger, Evansville, Ind., for appellee, Bamberger,
Foreman, Oswald & Hahn, Evansville, Ind., of counsel.

Before DUFFY and KNOCH, Circuit Judges, and PLATT, District Judge.

DUFFY, Circuit Judge.

1
On July 10, 1959, this suit was commenced by filing a complaint in ten
counts. It alleged a concealed fraud by defendant which led to and
induced the execution of a written settlement agreement between the
parties to this suit and a third person. On March 7, 1960, on motion
by defendant, seven counts of the complaint were dismissed for failure
to state a claim, and one count was ordered stricken from the file as
scandalous; all, however, with leave to plaintiff to move to amend
within fifteen days.

2
On March 21, 1960, plaintiff filed motions for leave to amend counts
1, 2, 3, 4, 5, 6, 7 and 9 by interlineation. On April 14, 1960, after
a pretrial conference, the Court denied these motions. On this same
date, plaintiff filed two additional motions, 1) to dismiss counts 8
and 10 of the original complaint without prejudice, and 2) for an
extension of thirty days in which to prepare motions to amend the
complaint. On May 17, 1960, the Court entered an order granting the
first motion and denying the second.

3
On June 13, 1960, plaintiff appealed from the May 17, 1960 order, but
this Court dismissed the appeal on the ground that the May 17th order
was not a final order or judgment. On October 12, 1960, plaintiff
employed new counsel, and on October 31, 1960, an amended complaint in
three counts was filed. On December 19, 1960, the District Court
sustained the defendant's motion to strike the amended complaint and
dismissed the plaintiff's action.

4
On January 11, 1960, the plaintiff, pursuant to Rule 60(b), Federal
Rules of Civil Procedure, 28 U.S.C.A. moved the District Court for an
order vacating and setting aside the December 19th judgment for the
purpose of permitting the filing of an amended complaint. On January
18, 1961, the Court denied the motion and the plaintiff here appeals
to this Court from both the December 19th and the January 18th orders.

5
The plaintiff contends that under Rule 15(a) of the Federal Rules of
Civil Procedure, he has the obsolute right to file an amended
complaint. Rule 15(a) provides that, 'A party may amend his pleading
once as a matter of course at any time before a responsive pleading is
served * * *'. A motion to dismiss is not a responsive pleading within
the meaning of this rule. Peterson Steels, Inc. v. Seidmon, 7 Cir.,
188 F.2d 193.

6
A literal reading of Rule 15(a) might suggest that a plaintiff would
be entitled as of right to one amendment to his complaint without any
limit of time, despite the filing of a motion to dismiss. This has led
some courts and commentators to interpret Rule 15(a) as subject to the
qualification that the plaintiff may not amend after the court has
dismissed the complaint except upon leave of the court. United States
v. Newbury Mfg. Co., 1 Cir., 123 F.2d 453; Kelly v. Delaware River
Joint Commission, 3 Cir., 187 F.2d 93; 3 Moore, Federal Practice
15.07, page 826 (2d ed. 1948).

7
This Court has taken a more liberal view of Rule 15(a). In the
Peterson Steels case, supra, the action was for breach of contract.
The District Court sustained the motion to dismiss. Plaintiff
thereafter filed a motion for leave to file an amended complaint. The
District Court denied the motion saying the proposed complaint was
essentially the same as the one originally filed. This Court said, at
page 194 of 188 F.2d, 'As defendants had not served a responsive
pleading, plaintiff was entitled to file his amended complaint as a
matter of course and was not required to ask leave of court; it was
error, however, to deny such leave when the request was made.'

8
In Peckham v. Scanlon, 241 F.2d 761, 764, this Court approved a
liberal interpretation of Rule 15(a), and at page 764 said, 'This
court in Peterson Steels, Inc. v. Seidmon, 7 Cir., 188 F.2d 193, 194,
recognized the rule as conferring an absolute right to amend.'

9
When plaintiff filed his motions on March 21, 1960, they were for
leave to amend certain counts of the complaint by interlineation.
Plaintiff did not seek to amend as a matter of right, and the District
Court refused to grant him permission to amend. No attempt was made to
file an amendment as of course and without asking permission of the
court until October 31, 1960, when plaintiff's new counsel filed the
amended complaint containing three counts. No responsive pleading had
been filed up to that date. At least two of the grounds relied on by
the Court to strike this complaint were that plaintiff had not sought
leave of the Court under Rule 15, and that he failed to obtain leave
of the Court or written consent of the defendant for the filing of an
amended complaint.

10
We think plaintiff was entitled to file the amended complaint
containing three counts as of course. Leave of the Court was not
necessary.

11
The District Court properly considered the amended complaint upon the
merits. This complaint did not refer to or adopt the original
complaint or any part thereof. The counts were based on a theory of
damages for concealed fraud in the violation of a confidential and
trust relationship, both as to an express trust and a constructive
trust in Fuhrer Ford Milling Company stock, its earnings and
dividends. Also, for misrepresentation by the defendant while acting
in a fiduciary and trust relationship.

12
The motion to dismiss the counts of the original ten-count complaint
were sustained primarily on three grounds, 1) failure to allege facts
that that the plaintiff had any interest in the property in question;
2) the original conveyance to the defendant was in violation of the
Indiana criminal statute forbidding defrauding of creditors; and 3)
the Indiana statute of limitations. The motion to amend by
interlineation was denied on the ground that none of the proposed
amendments cured the fatal defects in the original complaint.

13
Rule 15(a) of the Federal Rules of Civil Procedure relied upon by the
trial court explicitly provides that leave of court to amend 'shall be
freely given when justice so requires.' The Federal Rules respecting
amendments to pleadings should be given a liberal construction so that
cases are decided on the merits rather than on bare pleadings. McHenry
v. Ford Motor Co., 6 Cir., 269 F.2d 18. Leave to amend should be
freely given unless it appears to a certainty that plaintiff would not
be entitled to any relief under any state of facts which could be
proved in support of his claim. Kingwood Oil Co. v. Bell, 7 Cir., 204
F.2d 8, 13. In Kingwood, we stated, at page 13, 'No matter how likely
it may seem that a plaintiff may be unable to prove his case, he is
entitled, upon averring a claim, to an opportunity to prove it.'

14
As hereinbefore stated, the District Court should have permitted the
filing of the October 31 three-count complaint. It contained the clear
and specific allegations that defendant had breached his fiduciary and
confidential relationship to the plaintiff, and that by means of false
and fraudulent representations, defendant had induced plaintiff to
settle his interest in the trust res for a fraction of its actual
worth.

15
Running through the several opinions and decisions of the District
Court herein is the conclusion that the allegation in the original
complaint that the transfer of property to the defendant by his father
was a complete and absolute bar to the recovery in this suit by
plaintiff, a nonresident of Indiana. After alleging that the father of
plaintiff and defendant was a man of substantial means, holding
important positions such as bank president and president of the Fuhrer
Ford Milling Company, the original complaint stated the father had
endorsed notes of customers and conceived he might be required to make
good thereon; that on May 4, 1925, the father transferred to defendant
for safe keeping, 171 3/4 shares of the 271 3/4 shares owned by him of
the milling company stock. Apparently, the father's fears were
unfounded as the record discloses he satisfied this liability by
paying a nominal sum.

16
We hold that the allegation just described fails to show such fraud on
the part of the father or such a violation of the Indiana criminal
code which would, in itself, constitute a fatal admission against
interest and which was incurable by amendment. The effect which the
allegation may have as an admission against interest would depend on a
number of factors including the financial condition of the father and
his intent at the time of the transfer. Assuming, but not deciding,
that a valid affirmative defense might be made on this ground, on a
motion to dismiss, the facts alleged must be viewed in a light most
favorable to the plaintiff.

17
In any event, the amended complaint in no way refers to or adopts the
allegations of the original complaint. The averment which the District
Court found objectionable was not repeated in the amended complaint.

18
In Nisbet v. Van Tuyl, 7 Cir., 224 F.2d 66, 71, the District Court
sustained defendant's motion for summary judgment against the
plaintiffs on an amended complaint. On appeal, in support of the
District Court's action, the defendant argued that the original
complaint contained admissions which estop plaintiffs from maintaining
their alleged action set forth in the amended complaint, and that it
was proper for the Court to consider the unexplained admissions. This
Court disagreed, and held at page 71:

19
'Upon a motion for summary judgment the court, in considering the
pleadings upon which the motion is in part based, considers amended
pleadings rather than prior pleadings superseded by the amended
pleadings. An amended pleading ordinarily supersedes the prior
pleading. The prior pleading is in effect withdrawn as to all matters
not restated in the amended pleading, and becomes functus officio. 71
C.J.S., Pleading, 321, p. 717. Therefore the argument of defendants in
this regard is untenable. Upon a trial of the issues raised by the
pleadings, including the amended complaint, a complaint superseded
thereby might well be offered in evidence by the defense if it
contains material admissions by the plaintiffs named in the amended
complaint. Such evidence would be admissible in order to enable the
court to determine the facts upon the issues being tried. Conversely,
upon the trial, plaintiffs would be permitted to show by evidence the
explanation, if any there be, as to why the facts relied on by
defendants as admissions were stated in the amended complaint
differently than the way in which they were stated in the original
complaint.'

20
The relief asked for in the amended complaint is not barred by the
statute of limitations. The complaint alleges a concealed fraud. The
proof on this point at the trial may well establish the defense of the
statute of limitations is not available.

21
Reversed and remanded.

CC∅ | Transformed by Public
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Old February 6th 10, 03:10 AM posted to rec.games.chess.politics
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First recorded activity by ChessBanter: Jun 2009
Posts: 406
Default Judge Martinez can kisss my ass, the Clerk of the WesternDistrict is FULL OF ****

On Feb 5, 7:24*pm, NONE wrote:
See point #5

Peterson Steels, Inc. v. Seidmon, 7 Cir., 188 F.2d 193.

« up292 F.2d 140
Eugene M. FUHRER, Plaintiff-Appellant,
v.
Malcolm W. FUHRER, Defendant-Appellee.
No. 13267.
United States Court of Appeals Seventh Circuit.
June 28, 1961.
Isidor Kahn, Milford M. Miller, Harry P. Dees, William C. Welborn,
Evansville, Ind., for Plaintiff-appellant, Kahn, Dees, Donovan & Kahn,
Welborn & Miller, Evansville, Ind., of counsel.

Frederick P. Bamberger, Evansville, Ind., for appellee, Bamberger,
Foreman, Oswald & Hahn, Evansville, Ind., of counsel.

Before DUFFY and KNOCH, Circuit Judges, and PLATT, District Judge.

DUFFY, Circuit Judge.

1
On July 10, 1959, this suit was commenced by filing a complaint in ten
counts. It alleged a concealed fraud by defendant which led to and
induced the execution of a written settlement agreement between the
parties to this suit and a third person. On March 7, 1960, on motion
by defendant, seven counts of the complaint were dismissed for failure
to state a claim, and one count was ordered stricken from the file as
scandalous; all, however, with leave to plaintiff to move to amend
within fifteen days.

2
On March 21, 1960, plaintiff filed motions for leave to amend counts
1, 2, 3, 4, 5, 6, 7 and 9 by interlineation. On April 14, 1960, after
a pretrial conference, the Court denied these motions. On this same
date, plaintiff filed two additional motions, 1) to dismiss counts 8
and 10 of the original complaint without prejudice, and 2) for an
extension of thirty days in which to prepare motions to amend the
complaint. On May 17, 1960, the Court entered an order granting the
first motion and denying the second.

3
On June 13, 1960, plaintiff appealed from the May 17, 1960 order, but
this Court dismissed the appeal on the ground that the May 17th order
was not a final order or judgment. On October 12, 1960, plaintiff
employed new counsel, and on October 31, 1960, an amended complaint in
three counts was filed. On December 19, 1960, the District Court
sustained the defendant's motion to strike the amended complaint and
dismissed the plaintiff's action.

4
On January 11, 1960, the plaintiff, pursuant to Rule 60(b), Federal
Rules of Civil Procedure, 28 U.S.C.A. moved the District Court for an
order vacating and setting aside the December 19th judgment for the
purpose of permitting the filing of an amended complaint. On January
18, 1961, the Court denied the motion and the plaintiff here appeals
to this Court from both the December 19th and the January 18th orders.

5
The plaintiff contends that under Rule 15(a) of the Federal Rules of
Civil Procedure, he has the obsolute right to file an amended
complaint. Rule 15(a) provides that, 'A party may amend his pleading
once as a matter of course at any time before a responsive pleading is
served * * *'. A motion to dismiss is not a responsive pleading within
the meaning of this rule. Peterson Steels, Inc. v. Seidmon, 7 Cir.,
188 F.2d 193.

6
A literal reading of Rule 15(a) might suggest that a plaintiff would
be entitled as of right to one amendment to his complaint without any
limit of time, despite the filing of a motion to dismiss. This has led
some courts and commentators to interpret Rule 15(a) as subject to the
qualification that the plaintiff may not amend after the court has
dismissed the complaint except upon leave of the court. United States
v. Newbury Mfg. Co., 1 Cir., 123 F.2d 453; Kelly v. Delaware River
Joint Commission, 3 Cir., 187 F.2d 93; 3 Moore, Federal Practice
15.07, page 826 (2d ed. 1948).

7
This Court has taken a more liberal view of Rule 15(a). In the
Peterson Steels case, supra, the action was for breach of contract.
The District Court sustained the motion to dismiss. Plaintiff
thereafter filed a motion for leave to file an amended complaint. The
District Court denied the motion saying the proposed complaint was
essentially the same as the one originally filed. This Court said, at
page 194 of 188 F.2d, 'As defendants had not served a responsive
pleading, plaintiff was entitled to file his amended complaint as a
matter of course and was not required to ask leave of court; it was
error, however, to deny such leave when the request was made.'

8
In Peckham v. Scanlon, 241 F.2d 761, 764, this Court approved a
liberal interpretation of Rule 15(a), and at page 764 said, 'This
court in Peterson Steels, Inc. v. Seidmon, 7 Cir., 188 F.2d 193, 194,
recognized the rule as conferring an absolute right to amend.'

9
When plaintiff filed his motions on March 21, 1960, they were for
leave to amend certain counts of the complaint by interlineation.
Plaintiff did not seek to amend as a matter of right, and the District
Court refused to grant him permission to amend. No attempt was made to
file an amendment as of course and without asking permission of the
court until October 31, 1960, when plaintiff's new counsel filed the
amended complaint containing three counts. No responsive pleading had
been filed up to that date. At least two of the grounds relied on by
the Court to strike this complaint were that plaintiff had not sought
leave of the Court under Rule 15, and that he failed to obtain leave
of the Court or written consent of the defendant for the filing of an
amended complaint.

10
We think plaintiff was entitled to file the amended complaint
containing three counts as of course. Leave of the Court was not
necessary.

11
The District Court properly considered the amended complaint upon the
merits. This complaint did not refer to or adopt the original
complaint or any part thereof. The counts were based on a theory of
damages for concealed fraud in the violation of a confidential and
trust relationship, both as to an express trust and a constructive
trust in Fuhrer Ford Milling Company stock, its earnings and
dividends. Also, for misrepresentation by the defendant while acting
in a fiduciary and trust relationship.

12
The motion to dismiss the counts of the original ten-count complaint
were sustained primarily on three grounds, 1) failure to allege facts
that that the plaintiff had any interest in the property in question;
2) the original conveyance to the defendant was in violation of the
Indiana criminal statute forbidding defrauding of creditors; and 3)
the Indiana statute of limitations. The motion to amend by
interlineation was denied on the ground that none of the proposed
amendments cured the fatal defects in the original complaint.

13
Rule 15(a) of the Federal Rules of Civil Procedure relied upon by the
trial court explicitly provides that leave of court to amend 'shall be
freely given when justice so requires.' The Federal Rules respecting
amendments to pleadings should be given a liberal construction so that
cases are decided on the merits rather than on bare pleadings. McHenry
v. Ford Motor Co., 6 Cir., 269 F.2d 18. Leave to amend should be
freely given unless it appears to a certainty that plaintiff would not
be entitled to any relief under any state of facts which could be
proved in support of his claim. Kingwood Oil Co. v. Bell, 7 Cir., 204
F.2d 8, 13. In Kingwood, we stated, at page 13, 'No matter how likely
it may seem that a plaintiff may be unable to prove his case, he is
entitled, upon averring a claim, to an opportunity to prove it.'

14
As hereinbefore stated, the District Court should have permitted the
filing of the October 31 three-count complaint. It contained the clear
and specific allegations that defendant had breached his fiduciary and
confidential relationship to the plaintiff, and that by means of false
and fraudulent representations, defendant had induced plaintiff to
settle his interest in the trust res for a fraction of its actual
worth.

15
Running through the several opinions and decisions of the District
Court herein is the conclusion that the allegation in the original
complaint that the transfer of property to the defendant by his father
was a complete and absolute bar to the recovery in this suit by
plaintiff, a nonresident of Indiana. After alleging that the father of
plaintiff and defendant was a man of substantial means, holding
important positions such as bank president and president of the Fuhrer
Ford Milling Company, the original complaint stated the father had
endorsed notes of customers and conceived he might be required to make
good thereon; that on May 4, 1925, the father transferred to defendant
for safe keeping, 171 3/4 shares of the 271 3/4 shares owned by him of
the milling company stock. Apparently, the father's fears were
unfounded as the record discloses he satisfied this liability by
paying a nominal sum.

16
We hold that the allegation just described fails to show such fraud on
the part of the father or such a violation of the Indiana criminal
code which would, in itself, constitute a fatal admission against
interest and which was incurable by amendment. The effect which the
allegation may have as an admission against interest would depend on a
number of factors including the financial condition of the father and
his intent at the time of the transfer. Assuming, but not deciding,
that a valid affirmative defense might be made on this ground, on a
motion to dismiss, the facts alleged must be viewed in a light most
favorable to the plaintiff.

17
In any event, the amended complaint in no way refers to or adopts the
allegations of the original complaint. The averment which the District
Court found objectionable was not repeated in the amended complaint.

18
In Nisbet v. Van Tuyl, 7 Cir., 224 F.2d 66, 71, the District Court
sustained defendant's motion for summary judgment against the
plaintiffs on an amended complaint. On appeal, in support of the
District Court's action, the defendant argued that the original
complaint contained admissions which estop plaintiffs from maintaining
their alleged action set forth in the amended complaint, and that it
was proper for the Court to consider the unexplained admissions. This
Court disagreed, and held at page 71:

19
'Upon a motion for summary judgment the court, in considering the
pleadings upon which the motion is in part based, considers amended
pleadings rather than prior pleadings superseded by the amended
pleadings. An amended pleading ordinarily supersedes the prior
pleading. The prior pleading is in effect withdrawn as to all matters
not restated in the amended pleading, and becomes functus officio. 71
C.J.S., Pleading, 321, p. 717. Therefore the argument of defendants in
this regard is untenable. Upon a trial of the issues raised by the
pleadings, including the amended complaint, a complaint superseded
thereby might well be offered in evidence by the defense if it
contains material admissions by the plaintiffs named in the amended
complaint. Such evidence would be admissible in order to enable the
court to determine the facts upon the issues being tried. Conversely,
upon the trial, plaintiffs would be permitted to show by evidence the
explanation, if any there be, as to why the facts relied on by
defendants as admissions were stated in the amended complaint
differently than the way in which they were stated in the original
complaint.'

20
The relief asked for in the amended complaint is not barred by the
statute of limitations. The complaint alleges a concealed fraud. The
proof on this point at the trial may well establish the defense of the
statute of limitations is not available.

21
Reversed and remanded.

CC∅ | Transformed by Public


Comments to my father about corrupt attornies...

The real power struggle is for the Western District Federal Bar to
keep power disputes in State court. These lawyers do not want a
federal court to have original jurdicition in power disputes. My case
will be common law, anyone who is denied power hookup can sue in
federal court. It costs attorneys legal fees. Who wants to hire an
attorney when they can just type up documents and sue in federal court
for less than 1,000 dollars?

With this common law, my case will make anyone in the Western District
eligible for a quick hookup or hearing.


The entire case starts over with my amendments. Everything the
defendants have said is meaningless, legally.

The lawyers don’t want a common law precedent to give access to
federal courts. They will lie, cheat, and steal to block my case of
damages.

I beat all of them.

The US Supreme Court will probably have to resolve this issue of a 15a
amendment, if the Circuit Court in New Orleans denies me a First
amendment complaint.




Peterson Steels, Inc. v. Seidmon, 7 Cir., 188 F.2d 193.

5
The plaintiff contends that under Rule 15(a) of the Federal Rules of
Civil Procedure, he has the obsolute right to file an amended
complaint. Rule 15(a) provides that, 'A party may amend his pleading
once as a matter of course at any time before a responsive pleading is
served * * *'. A motion to dismiss is not a responsive pleading within
the meaning of this rule. Peterson Steels, Inc. v. Seidmon, 7 Cir.,
188 F.2d 193.
10
We think plaintiff was entitled to file the amended complaint
containing three counts as of course. Leave of the Court was not
necessary.

  #3   Report Post  
Old February 6th 10, 06:49 AM posted to rec.games.chess.politics
external usenet poster
 
First recorded activity by ChessBanter: Oct 2009
Posts: 112
Default Judge Martinez of the Western District is WHOOPING MARCUS ROBERTS'ASS!

On Feb 5, 9:24*pm, NONE wrote:
See point #5

Peterson Steels, Inc. v. Seidmon, 7 Cir., 188 F.2d 193.

up292 F.2d 140
Eugene M. FUHRER, Plaintiff-Appellant,
v.
Malcolm W. FUHRER, Defendant-Appellee.
No. 13267.
United States Court of Appeals Seventh Circuit.
June 28, 1961.
Isidor Kahn, Milford M. Miller, Harry P. Dees, William C. Welborn,
Evansville, Ind., for Plaintiff-appellant, Kahn, Dees, Donovan & Kahn,
Welborn & Miller, Evansville, Ind., of counsel.

Frederick P. Bamberger, Evansville, Ind., for appellee, Bamberger,
Foreman, Oswald & Hahn, Evansville, Ind., of counsel.

Before DUFFY and KNOCH, Circuit Judges, and PLATT, District Judge.

DUFFY, Circuit Judge.

1
On July 10, 1959, this suit was commenced by filing a complaint in ten
counts. It alleged a concealed fraud by defendant which led to and
induced the execution of a written settlement agreement between the
parties to this suit and a third person. On March 7, 1960, on motion
by defendant, seven counts of the complaint were dismissed for failure
to state a claim, and one count was ordered stricken from the file as
scandalous; all, however, with leave to plaintiff to move to amend
within fifteen days.

2
On March 21, 1960, plaintiff filed motions for leave to amend counts
1, 2, 3, 4, 5, 6, 7 and 9 by interlineation. On April 14, 1960, after
a pretrial conference, the Court denied these motions. On this same
date, plaintiff filed two additional motions, 1) to dismiss counts 8
and 10 of the original complaint without prejudice, and 2) for an
extension of thirty days in which to prepare motions to amend the
complaint. On May 17, 1960, the Court entered an order granting the
first motion and denying the second.

3
On June 13, 1960, plaintiff appealed from the May 17, 1960 order, but
this Court dismissed the appeal on the ground that the May 17th order
was not a final order or judgment. On October 12, 1960, plaintiff
employed new counsel, and on October 31, 1960, an amended complaint in
three counts was filed. On December 19, 1960, the District Court
sustained the defendant's motion to strike the amended complaint and
dismissed the plaintiff's action.

4
On January 11, 1960, the plaintiff, pursuant to Rule 60(b), Federal
Rules of Civil Procedure, 28 U.S.C.A. moved the District Court for an
order vacating and setting aside the December 19th judgment for the
purpose of permitting the filing of an amended complaint. On January
18, 1961, the Court denied the motion and the plaintiff here appeals
to this Court from both the December 19th and the January 18th orders.

5
The plaintiff contends that under Rule 15(a) of the Federal Rules of
Civil Procedure, he has the obsolute right to file an amended
complaint. Rule 15(a) provides that, 'A party may amend his pleading
once as a matter of course at any time before a responsive pleading is
served * * *'. A motion to dismiss is not a responsive pleading within
the meaning of this rule. Peterson Steels, Inc. v. Seidmon, 7 Cir.,
188 F.2d 193.

6
A literal reading of Rule 15(a) might suggest that a plaintiff would
be entitled as of right to one amendment to his complaint without any
limit of time, despite the filing of a motion to dismiss. This has led
some courts and commentators to interpret Rule 15(a) as subject to the
qualification that the plaintiff may not amend after the court has
dismissed the complaint except upon leave of the court. United States
v. Newbury Mfg. Co., 1 Cir., 123 F.2d 453; Kelly v. Delaware River
Joint Commission, 3 Cir., 187 F.2d 93; 3 Moore, Federal Practice
15.07, page 826 (2d ed. 1948).

7
This Court has taken a more liberal view of Rule 15(a). In the
Peterson Steels case, supra, the action was for breach of contract.
The District Court sustained the motion to dismiss. Plaintiff
thereafter filed a motion for leave to file an amended complaint. The
District Court denied the motion saying the proposed complaint was
essentially the same as the one originally filed. This Court said, at
page 194 of 188 F.2d, 'As defendants had not served a responsive
pleading, plaintiff was entitled to file his amended complaint as a
matter of course and was not required to ask leave of court; it was
error, however, to deny such leave when the request was made.'

8
In Peckham v. Scanlon, 241 F.2d 761, 764, this Court approved a
liberal interpretation of Rule 15(a), and at page 764 said, 'This
court in Peterson Steels, Inc. v. Seidmon, 7 Cir., 188 F.2d 193, 194,
recognized the rule as conferring an absolute right to amend.'

9
When plaintiff filed his motions on March 21, 1960, they were for
leave to amend certain counts of the complaint by interlineation.
Plaintiff did not seek to amend as a matter of right, and the District
Court refused to grant him permission to amend. No attempt was made to
file an amendment as of course and without asking permission of the
court until October 31, 1960, when plaintiff's new counsel filed the
amended complaint containing three counts. No responsive pleading had
been filed up to that date. At least two of the grounds relied on by
the Court to strike this complaint were that plaintiff had not sought
leave of the Court under Rule 15, and that he failed to obtain leave
of the Court or written consent of the defendant for the filing of an
amended complaint.

10
We think plaintiff was entitled to file the amended complaint
containing three counts as of course. Leave of the Court was not
necessary.

11
The District Court properly considered the amended complaint upon the
merits. This complaint did not refer to or adopt the original
complaint or any part thereof. The counts were based on a theory of
damages for concealed fraud in the violation of a confidential and
trust relationship, both as to an express trust and a constructive
trust in Fuhrer Ford Milling Company stock, its earnings and
dividends. Also, for misrepresentation by the defendant while acting
in a fiduciary and trust relationship.

12
The motion to dismiss the counts of the original ten-count complaint
were sustained primarily on three grounds, 1) failure to allege facts
that that the plaintiff had any interest in the property in question;
2) the original conveyance to the defendant was in violation of the
Indiana criminal statute forbidding defrauding of creditors; and 3)
the Indiana statute of limitations. The motion to amend by
interlineation was denied on the ground that none of the proposed
amendments cured the fatal defects in the original complaint.

13
Rule 15(a) of the Federal Rules of Civil Procedure relied upon by the
trial court explicitly provides that leave of court to amend 'shall be
freely given when justice so requires.' The Federal Rules respecting
amendments to pleadings should be given a liberal construction so that
cases are decided on the merits rather than on bare pleadings. McHenry
v. Ford Motor Co., 6 Cir., 269 F.2d 18. Leave to amend should be
freely given unless it appears to a certainty that plaintiff would not
be entitled to any relief under any state of facts which could be
proved in support of his claim. Kingwood Oil Co. v. Bell, 7 Cir., 204
F.2d 8, 13. In Kingwood, we stated, at page 13, 'No matter how likely
it may seem that a plaintiff may be unable to prove his case, he is
entitled, upon averring a claim, to an opportunity to prove it.'

14
As hereinbefore stated, the District Court should have permitted the
filing of the October 31 three-count complaint. It contained the clear
and specific allegations that defendant had breached his fiduciary and
confidential relationship to the plaintiff, and that by means of false
and fraudulent representations, defendant had induced plaintiff to
settle his interest in the trust res for a fraction of its actual
worth.

15
Running through the several opinions and decisions of the District
Court herein is the conclusion that the allegation in the original
complaint that the transfer of property to the defendant by his father
was a complete and absolute bar to the recovery in this suit by
plaintiff, a nonresident of Indiana. After alleging that the father of
plaintiff and defendant was a man of substantial means, holding
important positions such as bank president and president of the Fuhrer
Ford Milling Company, the original complaint stated the father had
endorsed notes of customers and conceived he might be required to make
good thereon; that on May 4, 1925, the father transferred to defendant
for safe keeping, 171 3/4 shares of the 271 3/4 shares owned by him of
the milling company stock. Apparently, the father's fears were
unfounded as the record discloses he satisfied this liability by
paying a nominal sum.

16
We hold that the allegation just described fails to show such fraud on
the part of the father or such a violation of the Indiana criminal
code which would, in itself, constitute a fatal admission against
interest and which was incurable by amendment. The effect which the
allegation may have as an admission against interest would depend on a
number of factors including the financial condition of the father and
his intent at the time of the transfer. Assuming, but not deciding,
that a valid affirmative defense might be made on this ground, on a
motion to dismiss, the facts alleged must be viewed in a light most
favorable to the plaintiff.

17
In any event, the amended complaint in no way refers to or adopts the
allegations of the original complaint. The averment which the District
Court found objectionable was not repeated in the amended complaint.

18
In Nisbet v. Van Tuyl, 7 Cir., 224 F.2d 66, 71, the District Court
sustained defendant's motion for summary judgment against the
plaintiffs on an amended complaint. On appeal, in support of the
District Court's action, the defendant argued that the original
complaint contained admissions which estop plaintiffs from maintaining
their alleged action set forth in the amended complaint, and that it
was proper for the Court to consider the unexplained admissions. This
Court disagreed, and held at page 71:

19
'Upon a motion ...

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Just read Crazy Mark-Bob's posts....he's foaming at the mouth. That
Judge Martinez is CLOWNING ol' Mark-Bob.

Funny thing is, only a complete imbecile would advertise it. Thank
God there are morons out there to provide comic relief.
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