42 F. Supp. 1001 | W.D.N.Y. | 1941
The defendant moves to withdraw its answer heretofore interposed and to dismiss the complaint for lack of jurisdiction.
The plaintiff has now amended his complaint to substitute as the party plaintiff a special guardian in place of the plaintiff.
The defendant has the right to answer the amended complaint and set up lack of jurisdiction or improper venue (either or both). Rule 12(b) Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The defendant has not waived its right to raise these questions (Rule'12(h) Rules of Civil Procedure), and it may raise them by answer or by motion. It has that right now after the amendment of the complaint.
The motion to dismiss the first alleged cause of action is granted. The motion to dismiss the second cause of action is denied.