The U.S. government's attorneys argue, "A dismissal for want of adequate allegations is generally without prejudice, and a party is customarily permitted to amend its complaint at least once to cure deficiencies." "The court denied the motion to file the amended complaint out of hand without addressing any of its new allegations" raised by the proposed amended complaint.
Federal lawyers add,
Even following dismissal, leave to amend should be freely given, and “an outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). The First Amended Complaint specifically addressed the deficiencies cited by the district court in the original complaint, and the court abused its discretion in summarily rejecting the filing without considering its allegations.The attorneys complain that the "district court denied the United States’ repeated requests for leave to file an amended complaint, without evaluating the legal sufficiency of the substantial new allegations in the proffered amended complaint that sought to cure the deficiencies the district court identified in the initial complaint."
The government's lawyers cite Federal Rule of Civil Procedure 15(a)(2)'s recommendation that "[t]he court should freely give leave [to amend a pleading] when justice so requires." They want the district court to assess their allegations that an archaeologist excavated the mask in 1952 in Saqqara, Egypt; it remained under the custody, control, and ownership of Egypt; the mask was discovered missing in 1973; and there was no authorization that it could be sold or transferred, so SLAM could not have acquired valid title to the Ka Nefer Nefer mask when it purchased it in 1998 from Phoenix Ancient Art, S.A.
SLAM is expected to file a reply brief in the near future.
Photo credit: creationc
This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com