AMENDED PLEADINGS
Wednesday, December 12, 2007
7:11 PM
· Amended pleading: a new pleading that replaces a party’s prior pleading in the case. A party may seek to amend its pleading for one of four reasons:
1. To correct a defect in the earlier pleading;
2. To add a new claim or new party
3. To add omitted affirmative defenses or change admissions to denials or vice versa
· Maybe new information comes to light that makes you realize that you should have pleaded an affirmative defense or added another claim
4. To conform the pleadings to the evidence at trial (make the pleadings and proof correspond to eliminate a variance)
· Amendment as a Matter of Right: amending without permission–parties can amend their pleading once without asking permission, but the time for doing so is short…
· Federal court: you can amend as a matter of right before the opposing party files their response; OR if no responsive pleading is allowed, you can amend within 20 days after service of your initial pleading. (Rule 15)
· NE State court: you can amend as a matter of right before the opposing party files their answer or within 10 days after a demurrer is filed; OR if no responsive pleading is allowed, you can amend within 30 days after service of your initial pleading
· Fed Rule 15(a)(1)(A)-(B): provides that if the pleading is one to which a responsive pleading is required (complaint, third-party complaint, or the portions of an answer containing a counterclaim or a cross-claim) then the party can amend the pleading as a matter of right (without asking permission) anytime before a responsive pleading is served; if the pleading is one to which no responsive pleading is due (answer or reply) then the party can amend the pleading as a matter of right anytime within 20 days (30 days in NE state court) after service of the pleading
· Fed Rule 15(a)(2): If the time has passed for amending as a matter of right, then a party will be ably to amend only if:
· The adverse parties give their written consent; OR
· The court grants the party leave to amend–the court should freely give leave when justice so requires
· Factors Relevant to Decision to Grant Leave to Amend:
· The risk of prejudice to the adverse party
· Ability of the adverse party to adjust its case to meet the new claim or defense
· Timing of the amendment
· Effect on the litigation
· The reasons for the amendment
· The legal sufficiency of the proposed amendment (whether it would be futile)
· A pleading that relates back to the original pleading is treated as though it was filed the same day as the original pleading. For example, sometimes legal sufficiency of the proposed amendment is an issue when the amendment seeks to add a new claim after the statute of limitations has run on that claim; therefore if the amended pleading relates back to the original pleading, the claim may be added if the original pleading was filed within the limitations period.
· Fed Rule 15(a)(3): Unless the court orders otherwise, any required response to an amended pleading must be made (whichever comes later)
· Within the time remaining to respond to the original pleading; OR
· Within ten days after service of the amended pleading
· Fed Rule 15(c): Relation Back of Amendments
· An amendment to a pleading relates back to the date of the original pleading when:
· The law that provides the applicable statute of limitations allows relation back
· The amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence that was set out (or attempted to be set out) in the original pleading
· The idea here is if you have been sued, then you have been given notice of all claims that could arise out of the same incident or operative facts and the defendant should be prepared to defend any possible related claims that could arise and should know to preserve any related evidence, and therefore will not be prejudiced when related claims are later added.
· Bonerb v. Richard Caron Foundation (p274):
· Plaintiff is seeking leave to amend his complaint (add another claim) due to attorney malpractice; defendant objects that this new claim does not relate back to the original pleading and therefore it is barred by statute of limitations
· In determining whether a claim relates back, courts look to “operational facts” set forth in the original complaint to determine whether the defendant was put on notice of the claim that the plaintiff seeks to later add
· An amendment which changes the legal theory of the case is appropriate if the factual situation upon which the action depends remains the same and was brought to the defendant’s attention by the original pleading
· The allegations in the original and amended complaints derive from the same nucleus of operative facts involving the basketball injury 9/29/91
· Rick O’Connell v. The Mummy
· Original complaint contained a claim for battery
· During discovery, Rick uncovered evidence that the Mummy stole Rick’s copy of the Book of the Dead
· Rick sought to leave to amend today (Jan 14, 2008)
· Trial date is May 20, 2008; last day for discovery is April 1, 2008
· The new amendment shouldn’t unduly delay litigation. The Mummy will still have time to prepare a defense because the discovery period is still open and trial does not start until May. In addition, conversion is a straight-forward claim and not very complex. Simply, did you do it or not? So preparing a defense is not that difficult, so the adverse party is not prejudiced. However, the reason for the amendment is a relevant factor to deciding whether to grant leave to amend. In this case, there was a good reason because the plaintiff’s previous lawyer did not discover the issue but the new more competent lawyer has found it. The further along in the case, the more important it is to have a worthwhile explanation for why you did not include the issue in your first pleading. Early on, it may be sufficient that you simply overlooked it, but later in litigation, you must have a better reason.
· Rick v. The Mummy, Scenario 1
· Assume that the incident occurred on 12/3/06
· Complaint filed on 9/5/07
· Motion for leave filed on 1/14/08
· Statute of limitations for both claims is one year
· The statute of limitations would regularly bar this claim since it has been more than one year since the incident occurred. However, if a pleading relates back to an earlier pleading, then it is deemed to have been filed on the date the earlier pleading was filed. Assuming that the amended complaint relates back to the original complaint on September 5, 2007, then the conversion claim is deemed within the limitations period since the original complaint filed on Sept 5, 2007 is within one year of the incident on Dec 3, 2006.
· Rick v. The Mummy, Scenario 2
· Assume that the incident occurred on 12/3/06
· Complaint for battery filed on 12/20/07
· Motion for leave to add conversion claim on 1/14/08
· Statute of limitations for both claims is one year
· Does the amended complaint relate back to the original complaint? In this case, even if the pleading relates back to the earlier pleading, the statute of limitations has still run since the original pleadi
in 120 days–the letter from National Medical was received by Bi-State 83 days after the amended complaint was filed, so the timing is proper.
· Relation Back in NE state court?
· File complaint 12/10/07
· Statute of limitations runs 12/20/07
· Notice received 12/30/07
· In this example, it would not relate back because in Nebraska state court, notice must be received before the statute of limitations has expired. In this case, notice was received after the statute expired. Note: in the federal system, it would relate back because notice must only be received within 120 days of the filing of the complaint, which is satisfied here.
· Variance: pleadings and evidence do not correspond–you get to trial and you want to introduce evidence not in the pleadings. You can use:
· Express Consent
· Implied Consent
· Formal Amendment
· Fed Rule 15(b): Amendments during and after trial
· If a party objects at trial that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended
· When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated as if raised in the pleadings
· Implied Consent: if evidence is introduced without objection at trial and that evidence is uniquely relevant to an issue outside the pleadings, then the parties are deemed to have impliedly consented to try that issue
· It is as though the issue was amended into the pleading
· What happens when you have unpleaded issues raised in some other way (not at trial)? Some courts say if it is not at trial, then Rule 15(b) does not apply. Other courts say that implied consent may still apply to dispositive motions.
· Is false imprisonment in or out of the case?
· Rick sues the Mummy for battery
· At trial, Rick testifies that a year before the beating, the Mummy locked Rick in a pyramid
· The Mummy did not object to Rick’s testimony
· Since the Mummy did not object to Rick’s testimony about the false imprisonment, he is deemed to have consented to try that issue. It is considered just as though Rick had made an amended pleading.
INTERPLEADER/INTERVENTION
Monday, March 31, 2008
7:36 PM
· Interpleader: a procedure whereby someone holding personal property claimed by others can force the claimants to litigate their claims to the property in one action so that the court can decide who owns the property.
· Note: this is generally only used for claims involving personal property or money; for claims involving real property, interpleader is not necessary because you may adjudicate all claims to real property with a quiet title action, identifying all those claiming an interest
· Purpose: to avoid contradictory judgments and multiple liability; this is broadly interpreted–simply exposure to multiple litigation is enough
