FA`ANUNUMI ENE PIPILI, Plaintiff,
v.
JOHN AH SUE and TALO AH SUE, Defendants.
Trial
Division
CA
No. 163-96
May 2,
1997
[1] T.C.R.C.P. Rule 15(a) allows a party to
amend his pleadings once, as a matter of course, any time before a permitted
responsive pleading is served.
[2] A T.C.R.C.P. Rule
12(b) motion to dismiss is not a responsive pleading for the purposes of
T.C.R.C.P. Rule 15(a).
[3] Failure to allege
the jurisdictional amount in the complaint does not subject it to dismissal
where the complaint is amended to include this allegation prior to the filing
of a responsive pleading by the defendant.
Before
Counsel: For Plaintiffs, Marie A. Lafaele
For Defendants, Afoa L. Su`esu`e Lutu
ORDER DENYING MOTION TO
DISMISS
Defendants move to dismiss the plaintiff's original complaint for lack of
jurisdiction and for failure to state a claim pursuant to T.C.R.C.P. Rule
12(b). [1ASR3d64]
Defendants argue that the High Court lacks
jurisdiction in this matter due to plaintiff's initial failure to plead the
jurisdictional amount. Plaintiff,
however, has since filed an amended complaint pleading the jurisdictional
amount. The amended complaint was
filed after the motion to dismiss but before the defendant's answer.
[1-3] T.C.R.C.P. Rule 15(a) allows a party to amend
his pleadings once, as a matter of course, any time before a permitted
responsive pleading is served. A
Rule 12(b) motion to dismiss, such as the one now before us, is not a
responsive pleading for purposes of Rule 15(a). See Wright, Miller & Kane,
Federal Practice & Procedure, Civil 2d ' 1483. Defendants' argument regarding
plaintiff's initial failure to state the jurisdictional amount is therefore
moot. Further, we do not find that
the amendment is made in bad faith.
Defendants also argue that the complaint fails to
state a claim upon which relief can be granted. However, we find that the plaintiff's
amended complaint sufficiently states a claim.
For the reasons set forth above defendants’
motion to dismiss is denied.
It is so Ordered.
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