Asked in Intellectual Property for California

Q: Can I change my cause of action?

I sued, served the documents, removed to federal, now pending Motion to dismiss hearing.

I sued for Intellectual Property.

Originally theft, however, now I am realizing it is right of publicity (California). They used my likeness in multiple publications. Can I change the cause of action?

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2 Lawyer Answers
James L. Arrasmith
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  • Sacramento, CA
  • Licensed in California

A: In California, a plaintiff has the ability to amend their complaint, which would allow you to change or add causes of action. Typically, you have the right to amend your complaint once without leave (permission) from the court, as long as it's done before the defendant files a responsive pleading. However, given that you mentioned a pending motion to dismiss, this suggests that a responsive pleading has already been filed. Therefore, you'd need to seek the court's permission to amend by filing a motion for leave to amend. It's important to articulate good cause for the amendment. If the court grants your motion, you can then amend your complaint to include the right of publicity claim. Nonetheless, given the procedural complexities of federal court and the nuances of intellectual property law, it would be prudent to consult with an attorney familiar with these matters to ensure the proper steps are taken.

A: Federal Rule of Civil Procedure 15(a) explains that a party may amend its pleading once as a matter of course if done so within 21 days after the service of a responsive pleading or Rule 12(b) motion to dismiss. If the motion to dismiss is the only filing the other party has made, you can amend your complaint as a matter of course by filing an amended complaint with the Court. You should also check your local rules and the rules of your presiding judge to ensure you don't run afoul of those.

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