My question involves court procedures for the state of: Mississippi.
Hypothetically, if a case was dismissed three years ago for lack of subject matter jurisdiction-- a 12 (b) 1 ruling without prejudice, nor on merits --and then affirmed on appeal by a U.S. Circuit Court, and denial of cert. in Nov 2016. Would that decision still allow the option to be amended by grant of leave after the ultimate affirmation of dismissal, by petitioning the court for leave on an excusable delay to amend? Hypothetically, the original attorney handling the case negligently chose to appeal, rather than choosing to amend a repairable claim before an opposing motion was made by defense. The attorney subsequently abandoned the case after the denial of cert.
The other question concerns this same hypothetical complaint dismissed on a 12 (b) 1, lack of subject matter jurisdiction. This ruling again, is not on the merits, therefore not barred by Res Judicata, collateral estoppel, nor issue or claim preclusion. If a new set of facts were available that involved the same parties, but a different claim, or cause of action that occurred at a different period in time. e.g. post–military discharge tort ( NOT FERES Doctrine barred ), as opposed to a pre- military discharge tort ( Feres Doctrine barred ), would the filing of the second claim be tolled/paused by the Miss. Saving Statute, or Related Back to the first claim’s date, while the first cause of action was pending in the appellate ladder before final affirmation of dismissal not on merits. The Miss. Savings Statute gives one year to re-file a case that has been improperly filed in order to provide the opportunity for it to be refiled in proper venue ( State Circuit Court ) as Common Law Tort.
The idea is to re-file this case involving the second tort that occurred after the original tort, which was FERES barred from trial on the 12 (b) 1. In my understanding, that ruling simply means the Federal Court does not have jurisdiction to entertain the claim. To avoid the statue of limitations, what is the best option? (1).To amend to the dismissed claim or (2) re-file a second claim using the second cause of action, and avoid a statute of limitations bar, which is the ultimate goal.
Hypothetically, if a case was dismissed three years ago for lack of subject matter jurisdiction-- a 12 (b) 1 ruling without prejudice, nor on merits --and then affirmed on appeal by a U.S. Circuit Court, and denial of cert. in Nov 2016. Would that decision still allow the option to be amended by grant of leave after the ultimate affirmation of dismissal, by petitioning the court for leave on an excusable delay to amend? Hypothetically, the original attorney handling the case negligently chose to appeal, rather than choosing to amend a repairable claim before an opposing motion was made by defense. The attorney subsequently abandoned the case after the denial of cert.
The other question concerns this same hypothetical complaint dismissed on a 12 (b) 1, lack of subject matter jurisdiction. This ruling again, is not on the merits, therefore not barred by Res Judicata, collateral estoppel, nor issue or claim preclusion. If a new set of facts were available that involved the same parties, but a different claim, or cause of action that occurred at a different period in time. e.g. post–military discharge tort ( NOT FERES Doctrine barred ), as opposed to a pre- military discharge tort ( Feres Doctrine barred ), would the filing of the second claim be tolled/paused by the Miss. Saving Statute, or Related Back to the first claim’s date, while the first cause of action was pending in the appellate ladder before final affirmation of dismissal not on merits. The Miss. Savings Statute gives one year to re-file a case that has been improperly filed in order to provide the opportunity for it to be refiled in proper venue ( State Circuit Court ) as Common Law Tort.
The idea is to re-file this case involving the second tort that occurred after the original tort, which was FERES barred from trial on the 12 (b) 1. In my understanding, that ruling simply means the Federal Court does not have jurisdiction to entertain the claim. To avoid the statue of limitations, what is the best option? (1).To amend to the dismissed claim or (2) re-file a second claim using the second cause of action, and avoid a statute of limitations bar, which is the ultimate goal.
Motions: I Have a Question of Procedure As Far As Amending and Re-Filing After a 12(B) 1
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