Commercial Litigation and Arbitration

Statements in Superseded Pleadings: Evidentiary vs. Judicial Admissions

From In re Initial Public Offering Secs. Litig., 544 F.Supp.2d 277 (S.D.N.Y. 2008):

Defendants argue that plaintiffs should be bound by their earlier pleadings. However, statements in superseded pleadings are not conclusive admissions (though they are still admissions for evidentiary purposes). See United States v. McKeon, 738 F.2d 26, 31 (2d Cir.1984). See also Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, 32 F.2d 195, 198 (2d Cir.1929) (“When a pleading is amended or withdrawn, the superseded portion ceases to be a conclusive judicial admission; but it still remains as a statement once seriously made by an authorized agent, and as such it is competent evidence of the facts stated, though controvertible, like any other extrajudicial admission made by a party or his agent.”). Compare Tho Dinh Tran v. Alphonse Hotel Corp., 281 F.3d 23, 32 (2d Cir.2002) (affirming the district court's finding that the plaintiff worked sixty-three hours per week despite the original complaint's allegations that the plaintiff worked one hundred and sixteen hours per week and the first amended complaint's allegations that he worked fifty-four hours per week), overruled on other grounds, Slayton v. American Exp. Co., 460 F.3d 215 (2d Cir.2006), with Austin v. Ford Models, Inc., 149 F.3d 148, 155 (2d Cir.1998) (affirming the district court's refusal to permit a plaintiff to amend her complaint to omit certain admissions), abrogated on other grounds, Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).

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