Kim King and Kent Norman v. Victor Atiyeh

Status

1,167 later cases cite Kim King and Kent Norman v. Victor Atiyeh; 445 of those citations sat close to treatment language and were flagged for reading, and all of them have been read. Citations that did not sit near treatment language were not flagged and were not read one by one, so a court that weakened this case without using any of that language would not appear here.

Treatments

Overruled in part

• The en banc Ninth Circuit overruled King's rule requiring plaintiffs to replead claims dismissed with prejudice and without leave to amend to preserve them for appeal, while retaining waiver for voluntarily dismissed claims.

  Lacey v. Maricopa County · Ninth Circuit (en banc) · filed August 29, 2012

  We have long proclaimed that “[i]t is the law of this circuit that a plaintiff waives all claims alleged in a dismissed complaint which are not realleged in an amended complaint.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.1997); see N.Y. City Emps.’ Ret. Sys. v. Jobs, 593 F.3d 1018, 1025 (9th Cir.2010); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987); ... We therefore join our sister circuits and overrule in part the rule found in Forsyth and other cases “that a plaintiff waives all claims alleged in a dismissed complaint which are not realleged in an amended complaint.” Forsyth, 114 F.3d at 1474. 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. But for any claims voluntarily dismissed, we will consider those claims to be waived if not repled.

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Declined to follow

• The Tenth Circuit declined King's rule requiring a plaintiff to replead a conclusively dismissed claim in an amended complaint to preserve it for appeal.

  Davis v. TXO Production Corp. · Tenth Circuit · filed April 11, 1991

  Although we are aware that at least one circuit clings to the formalistic rule advanced by this circuit in Aetna and Leggett, see King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987); London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.1981), another has adhered to the rule set forth in Blazer. ... We believe that a rule requiring plaintiffs who file amended complaints to replead claims previously dismissed on their merits in order to preserve those claims merely sets a trap for unsuspecting plaintiffs with no concomitant benefit to the opposing party.

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• The Third Circuit declined King's formalistic waiver rule and held that a dismissed claim omitted from an amended complaint remains reviewable when repleading would be futile.

  United States ex rel. Atkinson v. Pennsylvania Shipbuilding Co. · Third Circuit · filed January 12, 2007

  The Ninth Circuit, which we decline to follow, has articulated the most formalistic approach in these circumstances. ... Holding fast to the general rule that "an amended complaint ordinarily supersedes the original and renders it of no legal effect,” International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.1977), the Ninth Circuit has held that "all causes of action alleged in an original complaint which are not alleged in an amended complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987).

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