Amended pleadings (civ pro II)

Question 1

Rule for amended pleadings

Answer 1

15

basic principles 15(a)

Question 2

Is a complaint a pleading that requires a response?

review

Answer 2

yes.

if dont file win 21 days then you default

Question 3

Does an answer require a response?

Answer 3

Not necessarily. an answer does not count as a pleading that requires a response.

Question 4

do an answere an affirmative defense do you have to respond?

Answer 4

No. will be an issue argued

Question 5

How many days do you have to fiel an amended complaint?

Answer 5

21 days, even if an answer was filed

Question 6

What do you have to do to amend a complaint?

Answer 6

File it then serve it.

resets timeline for answer

Question 7

What if the other party thinks you had no right to amend?

Answer 7

other party files a motion to strike the amended complaint

Question 8

Can you amend again and again?

Answer 8

15 (a) (1) a party may amend its pleading “once” as a matter of course (right)

Question 9

Old timeline rule for amendments?

Answer 9

before def. responds

15 (a)(1)(B) amended in 2009 -before was a race to the courthouse

Question 10

other amendments?

Answer 10

15(a)(2)- in other cases a party may amend its pleading w/opposing party’s written consent or the court’s leave.

Question 11

When might go to party for consent? 15(a)(2)

Answer 11

• if not prejudicial to them

- u narrowing your claim, they liable for less

Question 12

When not gonna bother going to other party for consent?

Answer 12

if seek to add a claim, you may just go to court

Question 13

When will court grant the amendment?

Answer 13

15(a)(2) “when justice so requires”

Question 14

What will courts look at ?

Answer 14

in absence of this list, will be “freely given”:

• undue delay
• bad faith
• if amended before, failure to cure deficiencies
• if frivolous, legally insufficient
• undue prejudice to party opposing amendment

Question 15

Who has burden to show unde delay or bad faith?

Answer 15

Opposing party

Question 16

variance? 15(b)

Answer 16

the presentation of evidence on a point not covered in pleading
Rule 15 (b) -amendments During and After Trial

Question 17

Amendments based on an objection at trial- Rule 15(b)(1)

Answer 17

court will allow amd. pleading if will aid in presenting merits and the objecting party fails to show they would be prejudiced
(up to objecting party to show this-prejudiced)

Question 18

If party does not object (during & after trial)- when an issue not raised in pleadings is tried by the parites …

Answer 18

then express or impliedly consents & treated as if w/in scope of pleading and party may amend pleading to confrom to evidence at any time.
15(b)(2)

Question 19

Can plaintiff amend to include a new claim on which SOL has run ?

Answer 19

Only if it relates back to the original claim. If it does then counted as if filed in original 15(c)

Question 20

When does new claim relate back?

Answer 20

15(c)(1)
(B)
- same conduct, transaction or occurrence as gave rise to the original claim

Question 21

Marsh v. Coleman

Answer 21

“Relates back” tested
Laid off after told wouldn’t
Orig claim was age discrim & breach of contract
Wanted to amend a fraud claim.
Defense says barred by SOL & doesn’t relate back
Ct: initial allegations 1988, new ones 1985, defend didn’t know to keep records, not on notice. Substantially different in “kind & type”

Question 22

Why we have SOL?

Answer 22

1) know can close book on matter eventually w/out hanging over heads
2) evidence fresh/not lost

Question 23

Relates back language in Marsh v. Coleman company

Answer 23

” Amendments will relate back if they only flesh out the factual details, change the legal theory, or add another claim arising out of the same transaction, occur acne or conduct. Relation back is denied those amendments which are based on entirely diff facts, transactions and occurrences.” Holmes v. Greyhound. Pg 344

Question 24

If SOL runs out can amend if “ justice so requires.” Same language as what?

Answer 24

Supplemental jurisdiction

Question 25

When would u want to amend to add a different party?

Answer 25

When don’t want a new claim, but a new party. 15(c)(1)(c)

Question 26

When adding a party what u have to satisfy first?

Answer 26

15(c)(1)(b)- whether relates back & then
Whether new person knew or should have known so jot prejudiced.
About:- fairness - notice - lack of prejudice.
Ex) put wrong name of party

Question 27

Why should we add amendments liberally?

Answer 27

Goal in litigation ideally is to resolve disputes on their merits not technicalities.

Question 28

Why stricter when SOL RUNS.

Answer 28

Can make stronger arguments when SOL run

Knew- standards & arguments ?? Notes?

Question 29

When can u amend a pleading on own? 15(a)(1)

Answer 29

W/in 21 days after complaint.
Or 21 days after service of respons
15 (a)(1)

Question 30

New claim, same defendant and SOL has run out??

Relates back of it arises out of same ___,___or ____.

Answer 30

Conduct, transaction, or occurrence.

May be different claim, but same occurrence that gave rise to original claim (cuz it’s about notice)
If new PARTY….same test & also whether should have known