Thirty days after a defendant properly files and serves a motion to dismiss for failure to state a claim, the plaintiff discovers additional facts that would cure the deficiencies in the original complaint. According to the Federal Rules of Civil Procedure, what is the plaintiff's proper course of action to incorporate these new facts into their case?
Request permission from the court to amend the initial pleading to incorporate the new facts.
Pursue a summary judgment based on the newly identified information.
Begin the discovery process to gather more evidence supporting the new facts.
Initiate a separate lawsuit with the additional factual information.
Under FRCP 15(a), a plaintiff has a right to amend their pleading once as a matter of course within 21 days of being served with a Rule 12(b) motion. Since 30 days have passed, this window has closed. Therefore, the plaintiff must seek the court's leave to amend the pleading under FRCP 15(a)(2). Courts generally grant such leave freely when justice so requires. Initiating a new lawsuit would be improper, and proceeding to discovery or moving for summary judgment is premature while the pleading is subject to a motion to dismiss.
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