Rule 25.Effect of Proceeding After Motion or Amendment

Rule 25 answers a worry that could otherwise chill how parties respond to a ruling on a motion: does amending a pleading, or moving the case forward after losing a motion, give up the right to keep contesting that issue? The rule says no, across three situations.

Section A covers what happens when a court grants a motion to dismiss, a motion to strike an entire pleading, or a motion for judgment on the pleadings under Rule 21: the court may allow the losing party to amend the pleading. Where only part of a pleading was ordered stricken, the amendment follows the procedure in Rule 23D. Either way, amending the pleading does not waive the amending party’s right to challenge the correctness of the court’s ruling later in the case or on appeal.

Sections B and C protect the other side of the same coin. Section B says that once a party has filed a motion against an earlier version of a pleading and received a ruling on it, the party does not waive the defenses or objections raised in that motion by failing to reassert them against an amended pleading — whether the amendment came under Rule 23, under Rule 25A, or under some other rule or statute. Section C covers a motion that was denied outright: filing a responsive pleading afterward, or not repeating the objection or defense in that responsive pleading, or otherwise proceeding with the case, does not waive the objection or defense the motion raised.