Finish Amendments

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Finish Amendments

• Hypotheticals to Review

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(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

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(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.

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(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

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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)?

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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)?

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Hypos Governing Law

• Statute of limitations for torts is 2 years
  contract is 4.
• No statute says whether a claim relates back, or
  not.

• Statute of frauds requires all Ks involving
  transfer of real property, and all other
  contracts involving consideration of more than
  500 to be in writing.

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Hypo 1

• Bob represents plaintiff against defendant. Bob
  has filed a motion for summary judgment. 21 days
  after filing it but before defendant has filed
  its opposition, Bob realizes his motion contains
  typographical errors and omits an important
  exhibit. May he amend it without leave of court?

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Hypo 2

• P files complaint. D files a rule 12(b)(6)
  motion. After briefing, the court denies that
  motion.
• May D include in its answer a defense that the
  court lacks SMJ? PJ? That venue is improper?
• May D move for more definite statement or move to
  strike scandalous material?
• Is it proper, after court denies the motion, for
  P to file an amended complaint w/out court or Ds
  permission.
• Suppose 11 days after the court denies the
  motion, D has not filed anything. What could P
  do?

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Hypo 3

• Ps original complaint includes only a strict
  liability tort claim that Mangia Pizza (MP) sold
  him a pizza that had been made with sauce that
  had been defectively manufactured without
  preservatives, and so had become spoiled.
• P sues only MP.

• After D files its answer and after the SoL on the
  claim has run, P wants to amend its complaint to
  add a negligence claim based on the same sale of
  the pizza. If D objects, should the court allow
  it?
• Suppose instead that after D files its answer and
  after SoL on the claim has run, P wants to move
  to amend its complaint to switch D from MP to
  Grocer Supply Co., which was the ultimate
  manufacturer of the sauce. If GSC objects, what
  would P and GSC focus on in their briefs?
• If GSC knew w/in 120 days that P had sued MP, but
  not it, why should the amendment arguably still
  be denied?

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Hypo 4

• Suppose today P files suit against D, alleging
  that D has violated 1985(2) by firing P from his
  at will job. Should D file a 12(b)(6) motion?
• If D does file a 12(b)(6) motion, what should P
  do? How should court rule?
• If the court denies the motion, does that mean
  that plaintiff wins money? What does it mean?
• If court denies 12(b)(6) motion, what must D then
  do? By when?
• Can D still move to dismiss for lack of SMJ?

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Hypo 5

• Make up a hypo that would give a court reason to
  deny an amendment of a complaint for prejudice.

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Hypo 6

• How could defendant attack these allegations
• 13. On or about September 5, 2006, agents of
  Mangia Pizza Inc., told defendant that the pizza
  sauce was made only of the finest Italian
  tomatoes. In fact, this statement was false,
  and the agents knew it was false at that time.
  Plaintiff reasonably relied upon those statements
  to its detriment and was damaged thereby.
• 14. The foregoing statements constituted fraud.