Amended pleadings (civ pro II) Flashcards
Rule for amended pleadings
15
basic principles 15(a)
Is a complaint a pleading that requires a response?
review
yes.
if dont file win 21 days then you default
Does an answer require a response?
Not necessarily. an answer does not count as a pleading that requires a response.
do an answere an affirmative defense do you have to respond?
No. will be an issue argued
How many days do you have to fiel an amended complaint?
21 days, even if an answer was filed
What do you have to do to amend a complaint?
File it then serve it.
resets timeline for answer
What if the other party thinks you had no right to amend?
other party files a motion to strike the amended complaint
Can you amend again and again?
15 (a) (1) a party may amend its pleading “once” as a matter of course (right)
Old timeline rule for amendments?
before def. responds
15 (a)(1)(B) amended in 2009 -before was a race to the courthouse
other amendments?
15(a)(2)- in other cases a party may amend its pleading w/opposing party’s written consent or the court’s leave.
When might go to party for consent? 15(a)(2)
- if not prejudicial to them
- u narrowing your claim, they liable for less
When not gonna bother going to other party for consent?
if seek to add a claim, you may just go to court
When will court grant the amendment?
15(a)(2) “when justice so requires”
What will courts look at ?
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
Who has burden to show unde delay or bad faith?
Opposing party
variance? 15(b)
the presentation of evidence on a point not covered in pleading Rule 15 (b) -amendments During and After Trial
Amendments based on an objection at trial- Rule 15(b)(1)
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)
If party does not object (during & after trial)- when an issue not raised in pleadings is tried by the parites …
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)
Can plaintiff amend to include a new claim on which SOL has run ?
Only if it relates back to the original claim. If it does then counted as if filed in original 15(c)
When does new claim relate back?
15(c)(1)
(B)
- same conduct, transaction or occurrence as gave rise to the original claim
Marsh v. Coleman
“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”
Why we have SOL?
1) know can close book on matter eventually w/out hanging over heads
2) evidence fresh/not lost
Relates back language in Marsh v. Coleman company
” 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
If SOL runs out can amend if “ justice so requires.” Same language as what?
Supplemental jurisdiction
