A fun case illustrating amending your complaint early
- Peter Schneider
- Sep 21, 2025
- 5 min read
Updated: Sep 25, 2025
TCPA plaintiffs commonly find themselves in federal court after the defendant removes the case from state court.
May of the pro se plaintiffs know that generally they get a 'free' amendment of their complaint as governed by FRCP 15 (check your local rules!):
Amending as a Matter of Course. A party may amend its pleading once as a matter of course no later than:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required (so the complaint), 21 days after service of a responsive pleading (the Answer) or 21 days after service of a motion under Rule 12(b) , (e) , or (f) , whichever is earlier.
The lawsuit in Simon v. GM Fin., 2025 U.S. Dist. LEXIS 184265, 2025 LX 415376 brought up an interesting situation because the plaintiff had already amended the complaint once in state court before it was removed, and then amended again shortly after the lawsuit hit federal court. It is unclear if the defendants objected, or if the court just jumped in with an opinion, but the court let the amendment stand.
. . . where defendants challenge the pleadings on the merits after a case has been removed to federal court, plaintiffs should be permitted leave to amend their complaint in order to conform to the federal pleading standard." . . . (GMF asserting as an affirmative defense that Simon "has failed to state a claim upon which relief may be granted") . . . And that "logic makes good sense: a plaintiff should not be penalized for adhering to the pleading standards of the jurisdiction in which the case was originally brought. Otherwise, where there are potentially diverse parties, plaintiffs would essentially have to plead the federal pleading standard in state court for fear of having their claims against non-diverse parties thrown out upon reaching federal courts for failing to comply with the demands of [Federal Rule of Civil Procedure] 12(b)(6)."
The defendant's challenge to the pleadings was in an affirmative defense, and that in combination with the pro-set status of the plaintiff was justification in the court's eyes to allow the amendment.
There are a number of different theories as to amending the complaint before or after the defendant files an Answer or 12(b) motion.
In the amend-before camp:
Perhaps the plaintiff realizes there is a significant flaw in the pleadings and doesn't want the court to focus attention on it
The plaintiff may think that beefing up the complaint will entirely head off a motion to dismiss
The plaintiff may think that not only is a 12(b)(6) motion inevitable, a 12(b)(6) motion against the amended complaint is inevitable so a pre-amendment will give the best chance at surviving.
The plaintiff might think the defendant is teetering on settlement and a strong amendment might push them over the edge.
In the amend-after camp:
A plaintiff might have a reasonable fear that two amendments won't be allowed, so better to see the 12(b) argument before amending at all
A plaintiff might think that the expected 12(b)(6) is going to be pretty weak, so wait to see it, and wait for the ruling which would almost certainly allow for an amendment, and handle it there.
Usually if a court grants a motion to dismiss on the first go around it will allow an amendment to cure the deficiencies unless in the court's opinion it would be futile. IF the amended complaint doesn't pass muster, some courts will allow one more amendment and case Traore v. TransUnion LLC, 2025 U.S. Dist. LEXIS 184641, 2025 LX 428369 illustrates.
Malick-Fardy B. Traore sued several credit bureaus and financial institutions for alleged violations of the Fair Credit Reporting Act, Pennsylvania Unfair Trade Practices and Consumer Protection Law, and Fair Debt Collection Practices Act. Capital One previously moved to dismiss all counts for failure to state a claim. The Court granted the motion but permitted Traore to amend his federal claims. Traore returned with an Amended Complaint. He sued the same credit bureaus and financial institutions alleging an array of federal and state claims. Capital One, Avant and Equifax now move to dismiss the Amended Complaint on the grounds that Traore fails to state claims against them. The Court grants the motions but will allow Traore to amend some of his claims again.
The Traore case also has some of the funny side of law.
Traore next claims Capital One furnished false "late payments" and "delinquencies." To support this argument, he claims he sent Capital One a "negotiable instrument" to settle his debt; Capital One rejected this "lawful payment"; and Capital One furnished information about this event to consumer reporting agencies. Traore, however, never sent Capital One any actual money to discharge his debt. He sent Capital One a signed piece of paper saying the amount due, $3,408.16, was "enclosed." Traore apparently thinks this piece of paper—which resembles a "promissory note[]"—is "the equivalent of money" because he signed it. But saying a piece of paper is worth §3,408.16 does not make it so. See, e.g., Harp v. Police & Fire Fed. Credit Union, No. 23-2577, 2023 WL 5152625, (E.D. Pa. Aug. 10, 2023) (explaining that a consumer did not pass off to a creditor "valid legal tender" when she wrote a bunch of "financial buzzwords on her credit card statement"). Because Traore never actually discharged his debt with money, Capital One accurately reported that he still owed $3,408.16.
But back to the point of the article, even Mr. Traore got one more bite at the apple:
A court should grant a plaintiff leave to amend a complaint "when justice so requires." Fed. R. Civ. P. 15(a)(2). This rule expresses "a preference for liberally granting leave to amend" unless "amendment would cause undue delay or prejudice, or that amendment would be futile." Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000). Amendment is futile when "the complaint, as amended, would fail to state a claim upon which relief could be granted." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). The decision whether to grant or deny leave to amend is within the sound discretion of the district court. Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 272 (3d Cir. 2001). Traore may amend some of his claims consistent with the accompanying Order if he can allege facts which could overcome the shortcomings identified in this Memorandum.
Whichever you choose, I notice that few lawyers take the time to make the complaint detailed enough to take advantage of the fact that (if you survive the motion to dismiss), the defendant has to admit, deny, or claim they can't do either on all of the factual allegations in the complaint.
Of course the defendant will do its best to avoid admitting anything damaging, but sometimes they don't know what will be damaging, and if the plaintiff can make useful facts undeniable, it is basically getting free admissions up front that once the deadline for amending pleadings passes, are harder to get rid of than regular admissions.
If you know you are going to war, I suggest you consider including key undisputable facts in the complaint.
Got a Case Like This?
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Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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