Search The Library's Lexicon
To make a change in a bill, a law, or a complaint or other court pleading or document.
Under Fed.R.Civ.Proc. 15(a), 'a party may amend his pleading once as a matter of course at any time before a responsive pleading is served.' This court has held that 'a motion to dismiss is not a `responsive pleading' within the meaning of the Rule. Neither the filing nor granting of such a motion before answer terminates the right to amend; an order of dismissal denying leave to amend at that stage is improper.' Schreiber Distributing v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.'86). 'It is of no consequence that no request to amend the pleading was made in the district court.' Id.
In dismissing for failure to state a claim, 'a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.' Cook, Perkiss & Liehe v. N. Cal. Collection Service, 911 F.2d 242, 247 (9th Cir.'90).
However, where redrafting could not cure the pleading, it is proper for the district court to dismiss the complaint without allowing the plaintiff to amend. Frigard v. United States, 862 F.2d 201, 204 (9th Cir.'88), cert. denied, 490 U.S. 1098 ('89).