Ninth Circuit overrules longstanding precedent, allows appeal of dismissed claims not realleged in an amended complaint

By Lori Irish Bauman
September 17, 2012

Buried in a lengthy Ninth Circuit opinion about a controversial Arizona sheriff is a procedural nugget of interest to federal court litigants:  Failure to reallege a dismissed claim in an amended complaint no longer constitutes a waiver of the right to appeal the dismissal of that claim. 

In Lacey v. Maricopa County, journalists asserted civil rights claims against Sheriff Joe Arpaio and others, claiming retaliation in violation of the First Amendment, false arrest, and selective prosecution.  An en banc panel of the Ninth Circuit last month denied defendants' motions to dismiss and determined that the claims can proceed against Arpaio and two county prosecutors.

While none of the parties briefed the issue, the court sua sponte addressed whether plaintiffs had waived their right to appeal the dismissal of claims against one of the prosecutors by failing to name him as a defendant in an amended complaint.  The court's longstanding rule, which it called the Forsyth rule, is that a plaintiff waives all claims alleged in a dismissed complaint which are not realleged in an amended complaint.  Criticized as harsh and overly formalistic, the rule has been rejected by other circuits. 

The court disclaimed the Forsyth rule and held that "for claims dismissed with prejudice and without leave to amend, we will not require that they be repled in a subsequent amended complaint to preserve them for appeal."  As to claims dismissed voluntarily, the court will continue to consider them waived if not repled.

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