Wangler v. Lerol11/13/2003
ative on the issues of Lerol's fault or Pine Ridge's damages. See Campione, 661 N.E.2d at 663. Wangler, as the assignee, will have to prove his negligence action against Lerol in full. See Kobbeman, 574 N.W.2d at 636-37.
C.
[ ] Lerol and Farmers Union argue Wangler's respondeat superior claim against Farmers Union is not properly before us because Wangler failed to re-allege it after the trial court dismissed the claim in the August 2001 partial summary judgment and allowed Wangler to amend the complaint.
[ ] Lerol and Farmers Union rely on State Bank of Kenmare v. Lindberg, 471 N.W.2d 470, 475 (N.D. 1991), in which this Court quoted Dahl v. Winter-Truesdell-Diercks Co., 62 N.D. 351, 355, 243 N.W. 812, 813 (1932), for the general proposition that "an amended pleading, `which is complete in itself and does not refer to, or adopt, the prior pleading, supersedes it, and the original pleading ceases to be a part of the record, being in effect abandoned, or withdrawn. . . .'" Although in Lindberg, at 475, we noted the Dahl holding was "consistent with current thought under modern pleading," we nevertheless reviewed the merits of the appellants' argument contained in their original counterclaim even though it was not raised in their amended counterclaim.
[ ] Many of the federal courts of appeals refuse to require a plaintiff to replead dismissed claims to preserve the right to appeal the dismissal. See Young v. City of Mount Ranier, 238 F.3d 567, 572-73 (4th Cir. 2001); In re Crysen/Montenay Energy Co., 226 F.3d 160, 162 (2d Cir. 2000); Dunn v. Air Line Pilots Ass'n, 193 F.3d 1185, 1191 n.5 (11th Cir. 1999); Parrino v. FHP, Inc., 146 F.3d 699, 704 (9th Cir. 1998); USS-Posco Indus. v. Contra Costa County Bldg. & Constr. Trades Council, 31 F.3d 800, 811-12 (9th Cir. 1994); Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517-18 (10th Cir. 1991); Wilson v. First Houston Inv. Corp., 566 F.2d 1235, 1238 (5th Cir. 1978), vacated on other grounds, 444 U.S. 959 (1979); Blazer v. Black, 196 F.2d 139, 143-44 (10th Cir. 1952) (dicta); see also 35A C.J.S. Federal Civil Procedure § 445 (2003). These courts have reasoned it is "needlessly formalistic" to require a plaintiff to replead claims already dismissed. Young, 238 F.3d at 572; see also 6 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1477, at pp. 560-61 (1990) (criticizing the general rule). The "futily exception" to the general rule, In re Crysen/Montenay Energy Co., 226 F.3d at 162, has arisen because, " y dismissing the claims . . . , the district court has quite clearly given its view of the viability of the claims, a view not made any clearer or more final by requiring the plaintiff to re-allege the already rejected claims." Young, 238 F.3d at 572; see also Dunn, 193 F.3d at 1191 n.5. 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." Davis, 929 F.2d at 1518 (footnote omitted). Courts have also reasoned, " f the plaintiff were required to reallege claims dismissed on summary judgment to avoid waiving them, plaintiff's counsel would be forced to bear the risk of sanctions to preserve his client's right to appeal." Parrino, 146 F.3d at 704; see also USS-Posco Indus., 31 F.3d at 812. One court further reasoned, "such an approach spawns piecemeal appeals." Wilson, 566 F.2d at 1238.
[ ] We agree with the reasoning of these courts and conclude a plaintiff need not replead dismissed claims in an amended complaint to preserve the right to appeal the dismissal. To the extent Dahl is inconsistent with our conclusio
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