Why any limit

1
Why any limit?

• Rule 15(a) imposes limits on amending pleadings.
• Rule 16 will often override (more soon!)
• Rule 16 Final PTO will override
• The federal rules supposedly want to focus on the
  merits, so why do we limit any aspect of amending
  pleadings?

2
Amendments Two Related Issues

• Will amendment be allowed?
• Is there a right to amend?
• Will the other party agree to allow amendment?
• Often opponents agree because the rules
  favor allowing an amendment
• If not, what determines whether the court will
  exercise its discretion to grant leave to amend?
• Futility, etc.

• (2)If amendment is allowed and it adds one or
  more claims, will each claim relate back to
  date original pleading was filed? FRCP 15(c)
• Relation back matters only if the pleading to
  be amended was filed before limitations ran on
  the claim-being-added, but ran on it before the
  amendment was served.
• If it wont relate back, then it would be
  futile to allow amendment

3
(1) Will amendment of pleading be allowed?

• Is there a right to amend? 15(a)
• Note If so, R12(b) defense be added to a
  pleading.
• Will opponent agree to allow leave to file
  amendment?
• Often permission granted because the standards
  under (c) favor amendment (so we focus on the
  merits). Plus parties can agree to do almost
  anything differently than the FRCP require.
• If not a or b, R12 cant be added by motion

• (c) If not (and opponent refuses to agree) what
  determines whether court will grant leave to
  amend?

4
Right to Amend Ends at Different Times, Depending
on Whether a Responsive Pleading to the Pleading
Which is the Subject of the Amendment is
Permitted.

• Is a responsive pleading to a complaint
  permitted?
• Whats it called? Is it permitted?
• Is a responsive pleading to an answer permitted?
• What is a pleading responsive to an answer
  called?
• Is it permitted?

5
Rule 15(a)

• A pleading to which a responsive pleading is not
  permitted may be amended once as a matter of
  right within ____ days of its service, unless the
  case is _________.

• A pleading to which a responsive pleading is
  permitted may be amended once until the
  responsive pleading is ______.
• What if defendant serves the answer on day 18
  can plaintiff amend on day 19?
• What if defendant files answer on Day 18
  plaintiff files amendment on Day 19 and
  defendant mails answer on Day 20 and plaintiff
  receives it on Day 21?
• What if defendant files and mails answer on day
  18 plaintiff amends on 19 plaintiff receives it
  on 20? See R5(b)(2)(C)

6
If no Right to Amend, then Party Seeking to Amend
Must Get Agreement to or Move for Leave

• Opponents often agree, but not always.
• Why?
• The standards governing whether a court must
  grant amendment change depending on whether the
  amendment is offered before, or at, trial.
• Keep in mind that R16 scheduling order and
  pretrial order will add to this requirement!

7
Prior to Trial 15(a)

• a party may amend its pleading only with the
  opposing partys written consent or the courts
  leave. The court should freely give leave when
  justice so requires.

• When does Beeck say courts should deny leave to
  amend?
• 1
• 2
• 3
• 4
• 5
• 6

8
At Trial 15(b)

• If no objection?
• If objection, opposing party must prove
• How might that be shown?
• If shown, court can either
• (1)
  or
• (2)
• If not shown, court

9
Beeck (394)

• What facts lead to suit?
• What was plaintiffs investigation?
• What was defendants investigation?
• What pleading is proposed to be amended?
  Substance of it?
• What is alleged prejudice to Plaintiff?
• What would you have argued as defendant?
  Plaintiff?
• What did D.Ct. do?
• What is SoR?
• What why did appellate court do?
• What would trial be like if amendment had been
  denied?
• What if plaintiff had shown that defendant had
  known people were counterfeiting its slides?

10
If amendment allowed

• Amended pleading is filed and served.
• The other party has the time remaining to respond
  to the original pleading, or 10 days, whichever
  is longer. 15(a)(3).
• That other party
• may have to file a responsive pleading or 12(b)
  motion.
• If the amendment includes any new claims, address
  12(b) to extent it raises defenses not then
  available.
• E.g., suppose Haddle had originally sued for age
  discrimination then added 1985 claim by
  amendment.

11
Relation Back

• Plaintiff files suit before limitations runs
• After limitations runs on a claim that was not
  pled, plaintiff seeks to amend to include it.
• E.g., sues in contract 20 months after incident
  25 months after, seeks to amend to add tort
  claim. Tort SoL is 2 yrs.
• We could
• Treat amendment as filed when it is filed
• What result above?
• Treat amendment as filed when the underlying
  pleading had been filed
• What result above?
• Or do what we do

12
Relation Back FRCP 15(c)

• An amendment of a pleading relates back to the
  date of the original pleading when
• (A) The law providing the SoL allows relation
  back or
• (B) The amendment asserts a claim/defense that
  arose out of the conduct, transaction or
  occurrence in the original pleading or
• (C) the amendment changes the party or the naming
  of the party against whom a claim is asserted if
  (B) is satisfied and, within the period provided
  by Rule 4(m) for service of the summons and
  complaint, the party to be brought in by
  amendment (i) received notice of the suit so it
  will not be prejudiced in defending on the merits
  and (ii) it knew or should have known that but
  for a mistake concerning its identity, it would
  have been sued.

13
(1) An amendment of a pleading relates back to
the date of the original pleading when relation
back is permitted by the law that provides the
statute of limitations applicable to the action

• If a claim with a state law statute of
  limitations is added, look at state law to see if
  it would allow relation back.
• If a claim with a federal statute of limitations
  is added, look for federal law.
• If not related back, look at (B)
• 15(c) uses or

14
(B) An amendment relates back when the claim or
defense added by the amendment arose out of the
conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading

• Moore (400)
• What was original claim? Amendment?
• Why was amendment denied? Right result? Why?
• What about Azarbal?
• Bonerb (402)
• What was original claim? Amendment?
• Why was amendment allowed?
• An amendment which changes the legal theory is
  appropriate if the factual situation upon which
  the action depends remains the same and has been
  brought to the defendants attention by the
  original pleading.

15
(C) Changing Parties

• In addition to meeting (B), must show both
• (A) other party had notice w/in 120 days of suit
  in way not prejudiced and
• (B) other party at least should have known
  mistake caused plaintiff to sue other party and
  not it.

• Gives you four months to fix mistakes, like
• Misspelled names
• Wrong affiliated corporation
• Wrong capacity

16
Zielinski?

• (3) An amendment of a pleading relates back to
  the date of the original pleading when the
  amendment changes the party or the naming of the
  party against whom a claim is asserted if the
  foregoing provision (2) is satisfied and, within
  the period provided by Rule 4(m) for service of
  the summons and complaint, the party to be
  brought in by amendment (A) has received such
  notice of the institution of the action that the
  party will not be prejudiced in maintaining a
  defense on the merits, and (B) knew or should
  have known that, but for a mistake concerning the
  identity of the proper party, the action would
  have been brought against the party.

• The insurance company knew within 120 days that
  PPI had been sued by mistake.
• The insurance company knew that Carload
  Contractors should have been sued.
• Result under (c)(3)?

17
Beeck

• (3) An amendment of a pleading relates back to
  the date of the original pleading when the
  amendment changes the party or the naming of the
  party against whom a claim is asserted if the
  foregoing provision (2) is satisfied and, within
  the period provided by Rule 4(m) for service of
  the summons and complaint, the party to be
  brought in by amendment (A) has received such
  notice of the institution of the action that the
  party will not be prejudiced in maintaining a
  defense on the merits, and (B) knew or should
  have known that, but for a mistake concerning the
  identity of the proper party, the action would
  have been brought against the party.

• What do you need know to know how Beeck would
  come out under (c)(3)?