Ch. 8: Amendments
A. Amendments: Adding Claims
I General Principals
1 Amended pleading is one in which either the defense or prosecutors file to change their original pleading
A Reasons for Amending a pleading:
Þ (1) To fix up a defective pleading (fix mistakes/problems with the old pleading)
v Plaintiffs; especially true after 12(b)(6)—failure to state a claim
Þ (2) To add a new claim or party
v Plaintiffs
Þ (3) To add omitted affirmative defense or change admissions to denials or vice versa
v Defendants
Þ (4) To make the pleadings and proof correspond
v Plaintiffs and Defendants
II Nebraska State Court (Neb. Rev. Stat. 25-201.02(1))
1 Neb. Rev. Stat. 25-201.02(1), pretty much the same as the federal rule for amended pleadings
A Two types of Amendment:
Þ 1) A Matter or Right: do not need anyone’s permission
v Can amend ONE time without anyone’s permission
· Before the service or a responsive pleading if a responsive pleading is allowed, OR
· Within 30 days after service of the pleading if responsive pleading is not allowed
1. Neb. Pldge. Rule 15(a)
Þ 2) Permissive Pleading Amendment: 2 ways
v 1) Consent of all the other parties, OR
v 2) Leave of court (court’s permission)
III Federal Court (Rule 15)
1 Two types of Amendment:
A 1) A Matter or Right: do not need anyone’s permission
Þ Can amend ONE time without anyone’s permission
v Before the service or a responsive pleading if a responsive pleading is allowed, OR
v Within 20 days after service of the pleading if responsive pleading is not allowed
· Fed. R. Civ. P. Rule 15(a)
B 2) Permissive Pleading Amendment: 2 ways
Þ 1) Consent of all the other parties, OR
Þ 2) Leave of court (court’s permission)
v To get the court’s permission, you would need to file a motion to leave to amend
· This is freely granted by the court when justice so requires . . .
1. “Justice so requires” when: (factors court would consider when granting permission for leave to amend)
a. (1) Prejudice to the adverse party
i. Ability of the adverse party to adjust its case to meet the new claim or defense
ii. Timing of the amendment
iii. Effect on the litigation
b. (2) Reasons for the amendment
c. (3) Whether the amendment would be futile
2 Relation Back/Claims (Rule 15 (c)(1)(B))
A If an amended pleading relates back to the earlier pleading, then the amended pleading is deemed to have been filed on the date the earlier pleading was filed (basically gives an amended pleading an earlier filing date)
Þ Must ask: if the claim arises out of the same “conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading…” Rule 15(c)(1)(B)
Þ Doesn’t necessarily beat the statute of limitations, just gives you an earlier filing date so that in some cases, you will be within the SoL where in a normal circumstance (a circumstance without Rule 15(c)) you would have been barred from amending by a SoL
B NE State Law concerning Relation Back:
Þ Same basic standard as the federal level…
v “Claims in an amended pleading related back to the previous pleading if the claims arise out of the same conduct, transaction, or occurrence as a claim in the previous pleading.” Neb. Rev. Stat. 25-201.02(1)
B. Amendments: Changing Parties
I Federal Level (Rule (c)(1)(C))
1 Changing the parties against who the claim is against; same claim, different party
2 Requirements:
A Rule 15(c)(1)(B) The claim against the new party must arise out of the same transaction as the claim set forth in the original pleading, AND
B Rule 15(c)(1)(C)(i) Within 120 days of the filing of the original pleading, the new party:
Þ (1) Received notice of the transaction such that it will not be prejudiced in maintaining a defense on the merits, AND
Þ (2) Knew or should have known that it would have been named sued but for a mistake concerning the identity of the proper party
v Things to remember:
· “Notice” of the transaction does not have to be formal; as long as the party got the information, it is assumed that they won’t be prejudiced
1. Could be as simple as overhearing a conversation
· The absence of knowledge of the proper party does NOT affect the claim…
1. Getting the corporation’s name wrong doesn’t affect the claim; getting the party name wrong does not affect the claim
2. The claim is the same… getting the name wrong does not negate it
II NE State Level (NE Rev. Stat. 25-201.02(2))
1 Requirements:
A Pretty much the same as at the federal level
B Difference between Federal and NE law:
Þ Realization and notice of the mistake MUST appear within the statute of limitations period in order to relate back
C. Amendments During Trial
I Federal Level (Rule 15(b))
1 Two ways to make an amendment during a trial:
A (1) Based on an Objection at Trial (Rule 15(b)(1))
Þ “If, at a trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objection party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objection party to meet the evidence.”
B (2) For Issues Tried by Consent (Rule 15(b)(2))
Þ “When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an un-pleaded issue. But failure to amend does not affect the result of the trial of that issue.”
v “Implied Consent”
· If evidence is introduced without objection at a trial and that e
ST let you in… its not optional, the court has to permit the intervention
Þ (2) Permissive Intervention
v Requirements:
· Permissive intervention may be granted when an applicant’s claim or defense and the main action have a question of law or fact in common
a. Discretionary in the court; court decides whether you have a good enough interest in the case to be allowed in
b. Principal Consideration: Whether the intervention will unduly delay or prejudice the rights of the existing parties
Ch. 1: Discovery
A: Introduction to Discovery
I Definition
1 Discovery: The process of gathering the information you need to litigate your case; if you facilitate discovery correctly, then you shouldn’t be surprised when you come to trial. The idea is to be able to effectively respond to anything that might come up
Þ Two types:
v (1) Formal—using the methods outlined in the federal rules of civil procedure, OR
v (2) Informal—talking to folks, etc.
2 Discovery may help the parties to:
A (1) Prepare for their cases for trial
B (2) Narrow the Issues
C (3) Facilitate disposition of the case without trial
II Formal Methods of Discovery (Rule 26(a))
1 What you can get through formal discovery:
A “Any non-privileged matter that is relevant to any party’s claim or defense”
Þ Rule 26(b)(1)
Þ The information doesn’t have to be admissible at trial—as long as it is reasonably calculated to lead to the discovery of admissible evidence
2 Types of Formal Discovery:
Þ Mandatory Disclosures (Rule 26(a))
v Requires parties to disclose information about relevant witnesses or documents; also information about expert witnesses
Þ Deposition (Rule 30)
v Formal Question and Answer sessions with the lawyer
v All parties are entitled to be there and to ask questions
Þ Interrogatories (Rule 33)
v Written questions that one party sends to the other party that have to be answered in writing and under oath
Þ Document Production Requests/Entry on Land (Rule 34)
v Requests to enter onto land… like if you want to get tangible things from the other party
Þ Medical Exams (Rule 35)
v Allows you to get inside a person’s body
Þ Requests for Admissions (Rule 36)
v Asking the other party to admit or deny something; a formal declaration
3 Rule 27: Motion to obtain a deposition (witness interview)
