A lot of things could happen between the time a complaint is filed and trial occurs. As such, there are rules that allow the parties to amend their pleadings. The purpose of this rule is to allow the case to be resolved efficiently but still provide the opposition to prepare arguments. The rule governing amendment of pleadings are in Rule 15.
Rule 15(a) outlines two types of amendments. First, amendments with permission of the court. Second, amendments without permission of the court. Further, this section outlines how the amendment process works before trial.
Rule 15(b) discusses the more stringent standard of amending pleadings during trial (not discussed in this article).
Rule 15(c) focuses on how an amendment can occur after the statute of limitations has run.
Additional Notes
Rule 15 is pretty much a single “do over” during your pleadings. Which needs to happen during the 21 days. 15(c) are where the most complicated ones discussing “related back.”
A motion is a request made of the judge where you are asking them to make some kind of action. Note the difference between a motion and Rule 7 which lists the different kinds of pleadings. Significantly, motions often appear in the pleadings phase.
Amendments automatically render the previous pleading “null and void.” In other words, it simply replaces the previous pleading.
If a party amends their pleading, the opposition has another 21 days to amend their previous pleading.
Amending Without Leave of Court
The parties can make amendments without the permission of the court in three instances:
- First, the original pleading can be amended within 21 days of serving the original pleading.
- Second, the original pleading can be amended within 21 days of serving a responsive (e.g. responding to a counterclaim. See Rule 7(a)) pleading.
- Third, if the opposition files a 12(b)(6), 12(e), or 12(f), the amendment can be made within 21 days of the motion.
Although these three options are available, only one of them is allowed to be used and only for one time.
This process is called “amending as a matter of course.”
Amending Before Trial with Leave of Court
Outside of the rules above, if a party wishes to amend, they must make a motion for leave to amend.
Rule 15(a)(2) states:
“In all other cases, a party may amend its pleading only with the opposing party’s written consent of the Court’s leave. The court should freely give leave when justice so requires.”
That means that the judges must freely give leave as long as it is justified (good faith).
Judges consider a variety of factors to determine if these amendments are appropriate.
- Stage of litigation
- Reason for the amendment
- Viability of amended claim or defense
- Why it was not included in the original pleading.
Ultimately, a party will need permission if it is likely to prejudice the opposition by not providing enough time to build a defense.
Beeck v. Aquaslide ‘N’ Dive Corp.
562 F.2d 537 (8th Cir. 1977).
Beeck is the plaintiff, lost and appealed.
Question
Whether the trial court errored in allowing the defendant to amend the answer.
Rule
“Leave shall be freely given when justice so requires.” Burden is on the party opposing the amendment to show that it would prejudice them.
Holding
The trial court did not abuse its discretion. Affirmed.
Facts
Beeck was injured on a waterslide at a social gathering. Aquaslide was informed that the slide was theirs and that the accident had occurred. 1 year later, the complaint was filed. The investigation of 3 insurance companies determined that the slide was Aquaslide’s and the defendant accepted those findings in the answer. However, another year later, while preparing for a deposition (after the statute of limitations had run), the defendant’s owner visited the slide and determined that it was not created by Aquaslide. As a result, the defendant sought leave from the court to amend the answer to deny manufacture of the slide.
Analysis
The person who opposes the amendment must show that it is prejudicial against them. Here, there was no evidence to indicate that the mistake in the original answer was made by bad faith on the part of the defendant. Additionally, the allowance of leave does not end the litigation because it must be determined at that point whether the defendant was the manufacturer or not. Finally, not allowing the amendment would cause prejudice against the defendant.
Additional Notes
To determine if it would be injustice to allow the amendment, the court sees if the request was done in bad faith, prejudice, and undue delay.
In addition to amending the answer, the defendant also made a motion for a separate trial. One for the manufacture identity, and another to determine the liability. The purpose of the first trial would be to save the court a lot of expenses. However, the most important reason is to avoid prejudice against Aquaslide (removes an extremely sympathetic plaintiff from being seen).
The main takeaway from this case is how liberally the courts grant leave to amend. Even though it took 2 and a half years to figure out that the slide was not theirs (relying on previous findings), the court still granted leave to amend. Why? Because there was absence of bad faith, prejudice, and undue delay.
Amending After Limitations Period
The default rule is that if the statute of limitations has run, there is no remedy. However, Rule 15(c) governs “relation back” of amendments to pleadings that have passed the statute of limitations. In other words, this motion is asking the judge to waive the statute of limitations (as long as the amended claim relates to the original date of the pleading because the new complaint arises from the same transactions or occurrence in the original pleading).
Amending Claims and Defenses
Rule 15(c)(1)(B)
Bonerb v. Richard J. Caron Foundation
159 F.R.D. 16 (W.D.N.Y. 1994).
Bonerb is the plaintiff. He filed a motion to amend his complaint.
Question
Can the plaintiff add a claim after the statute of limitations has already run?
Rule
An amendment may be added, even though the statute of limitations has already run, if if claim “relates back” to the original pleading.
“In determining whether a claim relates back, courts look to the ‘operational facts’ set forth in the original complaint to determine whether the defendant was put on notice of the claim that the plaintiff later seeks to add.”
Holding
The separate theories of law both and be derived from the common nucleus of operative facts. The amendment may be added.
Facts
The plaintiff was injured at the defendant’s facility in a required activity. He sued for simple negligence. Later, after changing counsel, he wanted to amend the complaint to include counsel malpractice (on the facility). The statute of limitations had already run and the defendant opposed the motion.
Analysis
As long as the claim relates back to the common nucleus of operative fact, it can be allowed (if it does not prejudice the opposition). Here, the facts align. The plaintiff could have sued for either negligence or counsel malpractice. As such, the defendant was put on notice of either possibility. Further, there is no evidence that the amendment was untimely or that it prejudices the defendant (there is still plenty of time to discovery and develop an argument).
Therefore, the amendment is fine.
Notice the two part system here:
- The claim must “relate back” to give the opposition notice.
- The party must obtain leave from the court.
One final thing to note. If, at the time of filing, the desired amendment had already had the statute of limitations run (e.g. 2 year statute and the original complaint was filed 3 years later), the amendment cannot be added even if it relates back.
Additional Notes
Even if the court grants a leave to amend, there is more that needs to be done to overcome the affirmative defense. So, there are two parts:
- The claim must relate back to the original pleading
- The claim must obtain leave to amend.
To show that the claim relates back, the person requesting amendment must show that both claims arise from a common nucleus of operative fact.
Important fact here, the facility was a rehab center that Bonerb was admitted to. So, this was a mandatory activity as part of the counseling program. The injury arose from negligence but it could have also have arisen from counsel malpractice.
The request for amendment came at the beginning of discovery. However, in the next case, you can see how an amendment at the end of discovery looks like bad faith. Ultimately, timing is a huge part of determining whether there is good faith.
Additionally, if the statute of limitations has run before the original pleading was filed, then the amendment cannot be related back.
Moore v. Baker
989 F.2d 1129 (11th Cir. 1993).
Moore is the plaintiff. Her case was dismissed in the trial court and her motion for amendment was denied. She appeals.
Question
Did the trial court error in denying the motion for amendment and providing summary judgment?
Rule
Here is the following procedure.
- A justifying reason must be provided to deny amendment.
- Statute of limitations renders a claim futile and is a valid reason to deny.
- To allow an amendment, the court must find that the claim asserted relates back to the original pleading.
- A claim relates back when it “arose out of the conduct, transaction, or occurrence” in the original pleading (facts).
Holding
The claims did not relate back and thus it is denied. Affirmed
Facts
The plaintiff underwent an operation and was injured in the process. The plaintiff sued on the last day available within the statute of limitations for lack of informed consent. She argues that the doctor should have informed her of another method.
When the court granted summary judgment, the plaintiff made a motion for leave to amend the complaint. This request was initially granted, but later denied rendering her claims useless. The proposed amended claim (for negligent surgery) was after the statute of limitations had expired and the only way to pass was to bring it up in the amended complaint.
Analysis
Here, the facts do not relate back to the original complaint. The original complaint focuses entirely on informed consent, something that happens before surgery. The amended complaint focused on the surgery, completely separated from the informed consent discussions. As such, the defendant would have had no notice of the new complaint and several of the facts could be gone. Consequently, the amendment cannot take place.
Additional Notes
Moore and Bonerb may seem inconsistent but ultimately they are reconciled.
Here, the plaintiff sued first for lack of informed consent. This occurs before surgery. Second, the amended complaint wanted to include malpractice during the surgery.
The court did not provide leave for two reasons:
- The facts are not related enough (the informed consent and the surgery occur at different times). These case presented adjacent facts, not related facts.
- Second, the request for leave to amend came at the end of discovery (after a request from the defendant for summary judgment).
Amending Parties
Rule 15(c)(1)(C)
Krupski v. Costa Crociere S.P.A.
560 U.S. 538 (2010).
Krupski is the plaintiff. Case was dismissed in trial and at appeal. The Supreme Court then took this case.
Question
Did Costa Crociere have proper notice of the original lawsuit? In other words, can the amendment occur?
Rule
When a party seeks to amend to include or change another party, they must relate back to the original complaint. For it to relate back, the party brought in by the amendment must:
- Receive notice so it would not be prejudiced against.
- Be aware that the action would have been brought against them but for a mistake about the identity.
- Receive proper notice within the limitations directed by Rule 4(m) (typically 90 days).
Holding
All the elements were met, reversed.
Facts
Krupski was injured on a cruise line. The ticket directed that any suits should be directed to the carrier. So, Krupski sued Costa Cruise Lines. Costa Cruise denied that they were the carrier. So, Krupski dismissed that case, obtained leave to amend and named Costa Crociere as the defendant. This was successful, but Costa Crociere moved for summary judgment saying that the case was futile because the statute of limitations had passed. The trial court accepted this argument.
Analysis
The cruise line is making the argument that the elements were not met. Specifically, they were not provided notice and that they did not need to prepare a defense because the plaintiff had chosen to sue the other cruise line.
The court refutes those arguments. The defendant had received notice because the agent was served who passed notice along to the attorneys (who served as counsel for both lines). As a result, the other party should have known that but for the mistake, they would have been sued instead. The fact that there was a delay in the amendment does not matter because the plaintiff still provided notice within the limitations directed by Rule 4(m).
Additionally, there was a mistake by the part of the plaintiff. In this instance, the mistake was nominal, relating to the conduct and names of the companies. The mistake was not deliberate (the delay does not prove that it was deliberate).
In summary, the company had notice, was aware that they could be sued if there was not mistake, and was provided said notice within the limitation deadlines.
Additional Notes
Rule 4(m) requires service of the summons and complaint within 90 days of filing.
So, picture the wrong party was sued. However, if the party who really caused the injury, received notice and knew that the suit should have been against them, then they can still be sued.
Here, the plaintiffs are allowed to amend although the statute of limitations had run. Why? Because the key is about what the defendant, not the plaintiff, knew. Here, the defendant know about the mistake right away (counsel covers both companies). Finally, the reason why the reason why the wrong party was sued was because of a mistake, not a deliberate choice.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
