Rule 15 Amendments Civil Procedure Professor Lonny Hoffman

Transcription

1 Rule 15 Amendments Civil Procedure Professor Lonny Hoffman

2 The Three Pillars of the Traditional Model Summary Judgment Broad Discovery Liberal Pleading

3 Does the pleader have to ask permission to amend?

4 Rule 15(a)(1)(A) Amendments to D s answer as a matter of course (meaning, without having to ask permission)

5 Rule 15(a)(1)(A) Two main points to keep in mind about amendments to D s answer as a matter of course and No later than 21 days after serving answer

6 Rule 15(a)(1)(B) Amendments to P s Complaint as a matter of course and the earlier of: 21 days after answer served or 21 days after Rule 12(b) (e) or (f) motion served

7 Rule 15(a)(2) Permission Needed If can t amend as a matter of course then can amend either: 1. With consent of opposing party 2. or with permission of court ( leave of court )

8 When should leave be granted? Court should freely give leave when justice so requires

9 When should leave be granted? Undue delay Undue Prejudice AND Or Bad Faith See, e.g., On Track Innovations v. T-Mobile

10 But see, e.g., Spencer v. Wal-Mart Undue delay Futility Bad faith When should leave be granted? Undue prejudice Dilatory motive Repeated failures to cure

11 Hypo P files her complaint and serves D on same day. D timely files an answer. Eighteen days later, D realizes she failed to assert lack of personal jurisdiction as a defense in her answer. What may D do?

12 Hypo P files her complaint and serves D on same day. D timely files an answer. A month later, D realizes she failed to assert an affirmative defense in her answer. What may D do?

13 Is there a problem with limitations?

14 Rule 15(c) The Magic Rule Only relevant for dead claims: that is, when a claim is otherwise untimely because it is barred by limitations

15 Rule 15(c) The Magic Rule Don t confuse it with Rule 15(a) may the pleader amend which necessarily comes before any Rule 15(c) analysis

16 Rule 15(c) (c) Relation Back of Amendments. (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: (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, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

17 Rule 15(c)(1)(A) (c) Relation Back of Amendments. (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: (A) the law that provides the applicable statute of limitations allows relation back;

18 Rule 15(c)(1)(A) If state law would allow relation back, follow state law

19 Rule 15(c)(1)(B) An amendment to a pleading relates back to the date of the original pleading when: (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

20 How decide arose out of the conduct, transaction, or occurrence set out or attempted to be set out in the common core of operative facts original pleading? similar in both time and type Mayle v. Felix Tiller v. Atlantic Coast

21 Rule 15(c)(1)(B) - Relation Back Permitted Orig claim: failure to provide lookout to warn of coming trains Amended claim: failure to properly light railroad car Tiller case

22 Rule 15(c)(1)(B) - Relation Back denied Orig claim: exposed to asbestos through dad s work clothes Amended claim: exposed to asbestos when P herself worked (years later) in federal buildings Anderson case

23 Rule 15(c)(1)(C) An amendment to a pleading relates back to the date of the original pleading when: (C) the amendment changes the party or the naming of the party against whom a claim is asserted...

24 Rule 15(c)(1)(C) Only relevant if trying to add a claim against a new party after limitations has run, which state law would not resuscitate

25 Rule 15(c)(1)(C) An amendment to a pleading relates back to the date of the original pleading when: (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...

26 Rule 15(c)(1)(C) AND

27 Rule 15(c)(1)(C) if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and

28 Rule 15(c)(1)(C) The notice it received means it won t be prejudiced in defending

29 Rule 15(c)(1)(C) AND

30 Rule 15(c) if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

31 Krupski case P sued Costa Cruise as defendant (on Feb 1, 2008, just a few weeks before SOL ran)

32 Krupski case Name of ship was Costa Magica Ticket identified ship owner and operator as Costa Crociere Ticket identified sales and marketing agent as Costa Cruise Lines N.V.

33 Krupski case Front of ticket listed Costa Cruise Lines with address in Florida Front of ticket also referred to Costa Cruises as the first cruise company in the world to get a certain quality certification

34 Krupski case Cruise ship s website listed Costa Cruise in FL as the only American office for the Italian company Costa Crociere FL Sec y State showed Costa Cruise as only registered company to do business in state

35 Krupski case D s answer alleged Costa Cruise not proper defendant Alleged Costa Crociere was owner and operator

36 Krupski case D repeated same things about Costa Crociere in its corporate disclosure statement that it filed with the court

37 Krupski case D moved for summary judgment, arguing that Costa Crociere was only proper defendant

38 Krupski case P sought to amend to substitute Costa Crociere as the defendant (only 5 months after filing suit, but after SOL had run)

39 Rule 15(c)(1)(C) whether Costa Crociere knew or should have known that it would have been named as a defendant but for an error

40 Rule 15(c)(1)(C) Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing her original complaint