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Accordingly, we affirm the trial court’s ruling without prejudice.

The trial court gave the plaintiff thirty days from its September 25, 2023, notice of decision within which to seek to amend the complaint to cure the deficiencies it had identified, noting that any motion to reconsider would not toll the thirty-day deadline.

id.; ERG, Inc. v. Barnes, 137 N.H. 186, 190 (1993) (“The court will not, however, assume the truth or accuracy of any allegations which are not well-pleaded, including the statement of conclusions of fact and principles of law.”).

A plaintiff must be given leave to amend his complaint to correct perceived deficiencies before a dismissal for failure to state a claim has preclusive effect.

ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993) (construing dismissal for failure to state a cause of action as “on the merits,” because such a dismissal “does not rest upon a purely procedural ground, but rather upon the conclusion of the trial judge that the cause alleged is without substantive merit” (quotation omitted)).

The general rule in New Hampshire is that plaintiffs must be given leave to amend a complaint “to correct technical defects,” Keshishian v. CMC Radiologists, 142 N.H. 168, 175 (1997), “before an adverse judgment has preclusive effect,” ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993); see Super.

Accordingly, we further conclude that the trial court did not err in denying the motion to amend.

ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993) (stating that a plaintiff must be given leave “to correct perceived deficiencies [in the complaint] before an adverse judgment has preclusive effect”).

Even if the trial court had been required to consider the statements in the pleadings, however, we note that it would not have been required to credit the mere conclusory assertion, without more, that the defendants “knew about the duress.” See ERG, Inc. v. Barnes, 137 N.H. 186, 190 (1993) (stating that on a motion to dismiss for failure to state a claim, the trial court will not assume the truth of allegations that are not well-pleaded, including conclusions of fact and principles of law).

The plaintiff relies upon ERG, Inc. v. Barnes, 137 N.H. 186 (1993), which addressed amendment of a complaint following a dismissal for failure to state a cause of action.

The plaintiffs next argue, with respect to that claim, that the trial court “erred when it denied [their] request to amend the complaint even though the case was still pending and no final judgment had been made.” They contend that ERG, Inc. v. Barnes, 137 N.H. 186 (1993), “requires that a trial court allow plaintiffs at least one opportunity to amend a writ prior to dismissal for failure to state a claim,” and note that, with respect to their claim for enforcement of the Stipulated Agreement, t

4 G. J. MacDonald, Wiebusch on New Hampshire Civil Practice and Procedure § 22.03, at 22-6 to 22-7 (4th ed. 2014) (listing purposes of discovery, including to: facilitate preparation for trial through access to information, narrow the issues that must be tried, thereby shortening trial, avoid surprise at trial, and improve chances of settlement); cf. ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993) (stating that plaintiff must be given leave to amend “to correct perceived deficiencies [in the compl

n corporation; (4) not granting him leave to re-serve the defendants; and (5) declining to consider additional allegations in his objection to Shute’s motion to dismiss and in a purported affidavit in support of that objection on grounds that the “affidavit” was not properly sworn and the plaintiff would not otherwise have been entitled to file another revised complaint under ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993).

After affording the plaintiff an opportunity to amend his complaint to cure its deficiencies, see ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993), the trial court dismissed it for failure to state a claim.

Additionally, the plaintiffs would have been entitled to assert additional facts in an amended complaint.

v. Smith, 163 N.H. 751 (2012), one of two prior actions identified in the complaint, see ERG, Inc. v. Barnes, 137 N.H. 186, 190 (1993) (stating elements of malicious prosecution); (2) even if the defendant had instituted Smith, she had probable cause, see id.; and (3) the plaintiff conceded that any relief he seeks in connection with Hilton & Lake Kanasatka Assoc.

ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993) (relating to pre-trial dismissal of claim).

Plaintiffs must be given leave to amend their writs to correct perceived deficiencies before a dismissal for failure to state a claim has preclusive effect.

The plaintiff asserts that the trial court erred by dismissing her original complaint and by not giving her the opportunity to amend her complaint to correct the perceived deficiencies.

Citing ERG, Inc. v. Barnes, 137 N.H. 186 (1993), the plaintiffs argue that they had an absolute right to amend their writ.

Citing ERG, Inc. v. Barnes, 137 N.H. 186, 624 A.2d 555 (1993), the plaintiffs argue that they had an absolute right to amend their writ.

In order to prevail on a civil malicious prosecution claim, the plaintiff must prove: (1) that he was subjected to a civil proceeding instituted by the defendant; (2) without probable cause; (3) with malice; and (4) that the proceedings terminated in the plaintiff’s favor.

A second action will be precluded where the amended complaint fails to cure the deficiency.

A dismissal of a writ for failure to state a cause of action is a dismissal on the merits.

The defendants moved to dismiss the second writ claiming, among other things, that it was procedurally barred by ERG, Inc. v. Barnes, 137 N.H. 186 (1993).

We recite, however, only the relevant facts pled in the plaintiff’s writ, see ERG, Inc. v. Barnes, 137 N.H. 186, 190, 624 A.2d 555, 558 (1993), or provided in the record on the motion to produce.

The trial court’s dismissal of the plaintiff’s claims for wrongful termination for failure to state a cause of action was a final judgment on the merits.

Generally, before a case is dismissed, a party is given one meaningful opportunity to amend the writ.

We will not, however, “assume the truth or accuracy of any allegations which are not well-pleaded, including the statement of conclusions of fact and principles of law.” ERG, Inc. v. Barnes, 137 N.H. 186, 190, 624 A.2d 555, 558 (1993).

Relying primarily on ERG, Inc. v. Barnes, 137 N.H. 186, 624 A.2d 555 (1993), the defendant argues that the trial court erred in denying him leave to amend his expert witness report to provide evidence of causation.

ERG, Inc. v. Barnes, 137 N.H. 186, 190, 624 A.2d 555, 558 (1993); cf. Restatement (Second) of torts § 674 (1976).

assume the truth or accuracy of any allegations which are not well-pleaded, including the statement of conclusions of fact and principles of law.” ERG, Inc. v. Barnes, 137 N.H. 186, 190, 624 A.2d 555, 558 (1993).

The law is well settled that a party may not sue for malicious prosecution until after the underlying proceeding has terminated in its favor.1 See ERG, Inc. v. Barnes, 137 N.H. 186, 190, 624 A.2d 555, 558 (1993).!

In ruling on a motion to dismiss, the trial court must assume as fact all well-pleaded allegations and all reasonable inferences drawn therefrom as construed most favorably to the plaintiff, ERG, Inc. v. Barnes, 137 N.H. 186, 190, 624 A.2d 555, 558 (1993), and decide whether the “allegations are reasonably susceptible of a construction that would permit recovery.” Jaswell Drill Corp. v. General Motors Corp., 129 N.H. 341, 346, 529 A.2d 875, 878 (1987).

Assuming that RSA 508:10 applied in this case, but see ERG, Inc. v. Barnes, 137 N.H. 186, 189, 624 A.2d 555, 557-58 (1993), the plaintiffs mistakenly contend that their motion was sufficient to institute such an action.

Compare ERG, Inc. v. Barnes, 137 N.H. 186, 189, 624 A.2d 555, 557 (1993) (“To assure that the opportunity for amendment [of one’s pleadings] has practical meaning.

“In determining whether a motion to dismiss should be granted, the court assumes all factual allegations to be true, and the reasonable inferences that can be drawn from those facts are construed in the plaintiffs favor.” NRG, Inc. v. Barnes, 137 N.H. 186, 190, 624 A.2d 555, 558 (1993).

The plaintiff cannot now, by varying the form of the action, escape the operation of the principle that one and the same cause of action should not be litigated twice.

A plaintiff should generally be given the opportunity to amend the writ to correct perceived deficiencies before a motion to dismiss is granted.