Barney Alert: Amending Fraud Claims

What do you call someone who’s geeky? In junior high we were Barneys. Now this was Southern California, which is generally batty in a variety of ways but especially when it comes to the lingo. Today gives us an opportunity to inaugurate another irregular feature: the Barney Alert. Barney Alerts are for those of us who are geeky about civil procedure.

United States ex rel. Rost v. Pfizer, Inc., No. 06-2627, addresses an oft-forgotten aspect of moving to dismiss a complaint early in a case under Rule 12(b)(6). Plaintiffs regularly forget to ask the Court to allow them to try to fix a complaint that does not state a claim. When the request is made, it will usually be granted. In this case, the trial court never ruled on the plaintiff’s request to amend a fraud claim that it ultimately decided to dismiss. The First Circuit vacated the dismissal and sent the case back to the trial court. The lesson: always ask and make the record clear that you’ve done so.