No, you have to ask to update your original lawsuit. The judge said that filing a 'special reply' is an old-fashioned method that is no longer used. The correct way is to ask the judge for permission to 'amend' (change) your initial complaint. The judge explained that if you use the old method, the court will completely ignore your new arguments, and you'll lose the chance to prove them. In this case, the lawyer's paperwork also failed to disagree with some important points the other side made, which is like automatically agreeing with them and would cause them to lose the case.

No, the person suing shouldn't move forward with their current reply because it doesn't disagree with some key things the defense said. If they keep going without fixing the reply, the court will assume they agree with the things they didn't say 'no' to, which would really hurt their case.

Special replies aren't used much anymore. When someone suing needs to bring up new info, they should ask the court to let them change their original complaint, not just put it in their reply. Even though a reply can have new info along with saying 'no' to parts of the answer, the court will ignore that new info if the answer doesn't also say 'no' to it.

So, I think the person suing should take back this problematic reply. Then, they should either file a simple reply that properly says 'no' to the important parts of the answer or ask the court for permission to change their original complaint to include the new info they need to add.

<opinion type="majority"> <author id="b113-12">WASHINGTON, Circuit Justice.</author> <p id="Aib">Special replications are quite out of use, and have long been so. If the plaintiff discovers from •the answers, that it will be necessary for him to set forth new matter, in order to •oblige the defendants to answer it, and to afford himself an opportunity of proving ■such new matter, the practice is to apply to ■the court for leave to amend the bill. Nevertheless, if the replication contains the essential qualities of a general replication, being ■a denial of such parts of the answer as are not intended to be admitted, and also new matter; the court will consider such new matter as mere surplusage, if the parties go ■on to a hearing; in which case, the plaintiff will lose the benefit of it, although it should be supported by proof. If it be material to the plaintiff, he should move to amend his bill, and to state it therein. In this case, the replication does not deny some material ■allegations in the answer, and consequently if the plaintiff insists upon the hearing in the present state of the pleadings, the court will consider those allegations as admitted, which must be fatal to the plaintiff’s case, il should, therefore, advise the plaintiff to withdraw this replication, and either to file ■a general replication, or to ask leave to ••amend his bill.</p> <p id="b113-13">The plaintiff adopted this advice, and the •cause was continued.</p> </opinion>

No. A special replication is an improper and obsolete procedural tool for a plaintiff to introduce new matter. The correct practice is to apply to the court for leave to amend the bill. The court reasoned that special replications have long been out of use in favor of a more streamlined process. If a plaintiff files a special replication containing new matter, the court will treat that new matter as 'mere surplusage,' and the plaintiff will lose the opportunity to prove it at a hearing. Furthermore, the replication in this specific case was deficient because it failed to deny material allegations in the defendant's answer, which the court would therefore treat as admitted, a result that would be 'fatal to the plaintiff's case.'

No, the plaintiff should not proceed with the current replication because it does not deny material allegations in the answer. If the plaintiff insists on proceeding to a hearing without amending the replication, the court will consider those undenied allegations as admitted, which would be fatal to the plaintiff's case. 

Special replications have long been out of use. The proper practice when a plaintiff needs to address new matter is to amend the bill itself, not to include it in a replication. While a replication may contain new matter in addition to denying parts of the answer, such new matter will be treated as mere surplusage at a hearing if it is not also denied in the answer. 

Therefore, I advise the plaintiff to withdraw this defective replication. The plaintiff should then either file a general replication that properly denies the material parts of the answer, or seek leave from the court to amend the bill to include the necessary new matter.

Durand v. Hollins

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