Amending the pleading

Question 1

Can you amend at all?

Answer 1

1. As a matter of course per 15(a)(1)(A)-(B); within 21 days
2. With consent of the opposing party’s written consent per 15(a)(2)
3. With leave of court per 15(a)(2)

Question 2

What are the Foman Factors?

Answer 2

1. Undue delay
2. Bad faith or dilatory motive
3. Repeated failure to cure deficiencies in prior amendments;
4. Undue prejudice to opposing party
5. Futility; or
   other unnamed factors

Question 3

When does a party need relation back of an amendment?

Answer 3

When the statute of limitations on the claim has run

Question 4

When does an amendment relate back? (A)

Answer 4

15(c)(1)
(A) The law that provides the SOL allows relation back
(B) Amendment asserts claim or defense from same conduct, transaction, or occurrence as original pleading
(C)

Question 5

When does an amendment relate back? (B)

Answer 5

When the amendment asserts a claim or defense from the same conduct, transaction, or occurrence as original pleading (See Asarco).

Question 6

When does an amendment relate back? (C)

Answer 6

1. The amendment changes the party or naming of party;
2. claim is of same c/t/o;
3. The new party:
   a. received notice within 4(m) period and
   b. knew or should have known action would be brought, but for a mistake of identity.

Question 7

Rule from Brown v. Cuyahoga Cty

Answer 7

Not knowing someone’s identity is not the same as “mistake of identity” for purposes of relating an amendment back.