Amendments To The Pleadings

Before Trial A party may amend its pleading ONCE as a

matter of course:
At Trial (A) 21 days after serving it, or
(B) if the pleading is one to which a responsive
pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a
(1) Based on an Objection at Trial. If, at trial, a
motion under Rule 12(b), (e), or (f), whichever is
party objects that evidence is not within the
earlier.
issues raised in the pleadings, the court may
permit the pleadings to be In amended.
all otherThe cases
courtthe pleading may be
amended:when doing
should freely permit an amendment
so will aid in presenting •the with opposing
merits and the party’s written consent, or
• withthe
objecting party fails to satisfy the court’s
court leave. The court should grant
that the
evidence would prejudice leave freelyaction
that party's whenorjustice requires.
defense on the merits. The • The
courtcourt can adecline leave for a valid
may grant
continuance to enable the reason such astoundue
objecting party meet prejudice to the
the evidence. opposing party. The running of the statute of
(2) For Issues Tried by Consent.
limitationsWhen an issue
is an example of serious prejudice
not raised by the pleadings is tried by the
required. This is parties'
more persuasive if the case
express or implied consent, wasit filed
must be treated
very earlyin and ∆ delayed.
all respects as if raised in the pleadings. A party
may move--at
Time any time, even after judgment--to
to respond:
amend the pleadings
Unless otherwise to conform
orderedthem to the response
a required
evidence and to raise an unpleaded
to an amended pleading is due 14 issue. Butdays after
failure to amend does not affect the result of the
service or within time remaining to respond to
trial of that issue.
original pleading, whichever is later.

Relation Back of Amendments:

(A) the law that provides the applicable statute of
limitations allows relation back;

(B) the amendment asserts a claim or defense

that arose out of the conduct, transaction, or
occurrence set out--or attempted to be set out--in
the original pleading; or
(C) the amendment changes the party or the
naming of the party against whom a claim is
asserted, if Rule 15(c)(1)(B) is satisfied and if,
What counts as a mistake?
• Majority – For whatever reason.
within 120 days of commencing suit (4m) the
• Minority – Only clerical mistakes.
party to be brought in by amendment:
(i) received such notice of the action that it will What counts as a change in party?
not be prejudiced in defending on the merits; and Addition of a party is a change in party.
(ii) knew or should have known that the action
Need not “swap” party for another.
would have been brought against it, but for a
mistake concerning the proper party's identity. What counts as sufficient notice?
• Informal notice is sufficient. However,
some courts require more notice with the
When can a party make a extreme being actual service.
supplemental pleading?
• For events occurring after the initial
pleading.
• Courts generally only allow supplemental
pleadings to support an existing claim and
not establish a new one.