Goals

1
Goals

• Understand what the limitations on allowing
  amendment of pleadings mean, and why they exist.
• Understand the relation back doctrine, and when
  it is important.

2
Amendments to Pleadings

• Or
• Getting it Right the Second
• (or Third, or Fourth, or) Time

3
Why any limit?

• Rule 15(a) imposes limits on amending pleadings.
• Doesnt that make pleading the focus, and not
  merits? The federal rules supposedly want to
  focus on the merits, so why do we limit any
  aspect of amending pleadings?

4
Amendments Two 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
• (c) If not, what determines whether the court
  will exercise its discretion to grant leave to
  amend?

• (2)If the amendment is allowed and it adds a
  claim, will it relate back to the date the
  original pleading was filed? FRCP 15(c)
• Relation back only matters if the complaint
  was filed before limitations ran on the
  claim-being-added, but ran on it before the
  amendment was served.

5
(1) Will amendment of the pleading be allowed?

• Is there a right to amend? 15(a)
• Will the opponent agree to allow 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.

• (c) If not (and the opponent refuses to agree)
  what determines whether the court will grant
  leave to amend? 15(a) (b)

6
The 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?
• Is a responsive pleading to an answer permitted?
• What is a responsive pleading to an answer
  called?
• Is it permitted?

7
Rule 15(a)

• A pleading to which a responsive pleading is not
  permitted may be amended once as a matter of
  right within 20 days of its service, unless the
  case is set for trial.

• A pleading to which a responsive pleading is
  permitted may be amended once until the
  responsive pleading is served.
• Served
• What if defendant serves the answer on day 18
  can plaintiff amend on day 19?
• What if the defendant files the answer on Day 18
  plaintiff files the amendment on Day 19 and
  defendant mails the answer on Day 20, and
  plaintiff receives it on 21?
• What if the defendant files and mails the answer
  on day 18 plaintiff amends on 19 plaintiff
  receives the answer on 20? See FRCP 5(b)(2)(B)

8
If no Right to Amend, then Party Seeking to Amend
Must Move for Leave to Amend

• The standards governing whether the court will
  grant amendment change depending on whether the
  amendment is offered before, or at, trial.

9
Prior to Trial 15(a)

• a party may amend the partys pleading only by
  leave of court or by written consent of the
  adverse party and leave shall be freely given
  when justice so requires.

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

10
At Trial 15(b)

• If no objection, trial by consent
• If objection, opposing party must prove
  prejudice
• Prejudice would turn on
• Did movant only deny when it should have pled an
  affirmative defense?
• Layman?
• Did nonmovant have other discovery where it could
  have learned the facts?
• Did movant fail to disclose facts? If prejudice,
  court can grant continuance if needed.
• If prejudice, deny amendment.
• If no prejudice, court will overrule objection
  and allow movant to amend pleading to conform.

11
Beeck (394)

• What facts lead to suit?
• What was the plaintiffs investigation?
• What was defendants investigation?
• What is the proposed amendment?
• What is the alleged prejudice to Plaintiff?
• What did the district court do? Appellate?
• What would you have argued as the defendant?
  Plaintiff?
• Why did the appellate court find no abuse of
  discretion?
• What would trial be like if amendment had been
  denied?
• What if plaintiff had shown that the defendant
  had known people were counterfeiting its slides?

12
If amendment allowed

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

13
Relation Back Only matters when statute of
limitations runs after original claim filed.

• Plaintiff files a suit before limitations runs
• After limitations runs on some other claim,
  plaintiff seeks to amend to include it
• We could
• Treat the amendment as filed when it is filed
• Treat the amendment as filed when the underlying
  pleading had been filed
• Or do what we do

14
Relation Back FRCP 15(c)

• 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 or
• the claim or defense asserted in the amended
  pleading arose out of the conduct, transaction,
  or occurrence set forth or attempted to be set
  forth in the original pleading or
• 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.

15
(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 2
• 15(c) uses or

16
(2) An amendment of a pleading relates back to
the date of the original pleading when the claim
or defense asserted in the amended pleading 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.

17
(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.

• In addition to meeting 2, 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

18
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)?

19
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)?