Pleading - Amended Pleadings

Question 1

Amending Without Leave of the Court

Rule 15(a)

Answer 1

• A party can amend the original pleading once without the court’s permission within 21 days of serving it
• If a responsive pleading is required, a party can amend the original pleading within 21 days of when the responsive pleading was served
• If a party files a 12(b), 12(e), or 12(f) motion, the pleader may amend within 21 days of when the motion is served.

Question 2

When Considering Whether to Allow an Amendment, Courts Look at

Answer 2

• The reason for the amendment
• Any prejudice the amendment would cause the opposing party
• Whether the amendment is futile as a matter of law
• The parties’ prior amendments

Question 3

Beeck v. Aquaslide ‘N’ Dive Corp

Allowing the Diligent Defendant to Amend

Answer 3

It serves the interest of justice if the court allows a defendant to amend its answer just before trial if the defendant was diligent in its discovery and just got new information regarding its defense

Question 4

Rule 15(a)

Amendments Before Trial

Answer 4

• A party may amend its pleading once within 21 days after serving it or if it’s a pleading that must be responded to, 21 days after service of the responsive pleading or 21 days after service of a Rule 12(b), (e) or (f) motion, whatever is sooner
• In all other cases, the party needs the opposing party’s written consent or the court’s leave to amend
• A required response to an amended pleading must be made within the time remaining to respond to the original response or within 14 days, whatever’s longer

Question 5

Rule 15(b)

Amendments During and After Trial

Answer 5

• If a party at trial objects to evidence because it doesn’t relate to the issues in a pleading, the court may permit an amendment and should when it affects the merits of a case. The court may issue a continuance to allow the opposing party to meet the evidence
• When the parties consent to try an issue not in the pleading, a party may move to amend the pleading for consistency’s sake

Question 6

Rule 15(c)

Relation Back of Amendments

Answer 6

An amendment relates back to the date of the original pleading when

• The statute of limitations allows it
• The amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence set out in the original pleading
• The amendment changes the party or name of the party against whom the claim is made, with conditions

If the US or a US officer or agency is added as a defendant in an amendment, service under Rule 15(c)(1)(C) is met if process was delivered or mailed the US attorney or designee, the Attorney General, or the officer or agency in the appropriate time

Question 7

Rule 15(d)

Supplemental Pleading

Answer 7

On motion and reasonable notice, the court may allow a party to serve supplemental pleadings for transactions, occurrences or events that happened after the date of the pleading to be supplemented, even if the original pleading is defective.

Question 8

Rule 5(a)

When Required to Serve and File

Answer 8

• Lists the types of papers that must be served
• If a party is in default for not appearing, service is not required unless the non-defaulting part asserts a new claim against the defaulting party
• If the action began by seizing property and no defendant is named, the last known person who possessed the property before its seizure must be served

Question 9

Rule 5(b)

How to Serve and File

Answer 9

If a party is represented, the attorney must be served

A paper is served by

• Handing it to the person
• Leaving it at the person’s office with someone in charge or somewhere obvious
• Leaving at the person’s house with someone appropriate
• Mailing to the person’s last known address
• Leaving with a court clerk
• Filing with the court’s electric filing system or through email – must have consent in writing for this and it’s not effective if the serving party finds out the other party didn’t get it
• Delivering it by other means the person consented to