February 15, 2012 § 2 Comments

Things seem to go in phases. A motion to do thus and such is filed, finds some success, and a slew of others follow. Or a court of appeals decision makes a point, and a salvo of pleadings ensue.

Lately, a phase in pleadings is for lawyers to file successive so-called “amended” or “supplemental” pleadings and answers thereto, along with counterclaims (bearing all manner of names, such as “counter-motions,” “cross-complaints,” “counterpetitions,” etc., etc., etc.), and responses thereto, to the extent that casting the pleadings for trial is like assembling a jigsaw puzzle. Nearly always, this plethora of pleadings is filed in a willy-nilly cascade of paperwork without any leave of or input by the court. It does not have to be, nor should it be, this way.

MRCP 15 lays out an orderly process for amendments that is fairly simple if followed. Here’s the simple scheme laid out in Rule 15(a):

  1. You may amend at any time, without leave of court, before an answer is served.
  2. If your pleading is one to which no answer is permitted,  you may amend without leave of court at any time within 30 days after service of process, unless the matter has been placed on the trial calendar.
  3. Any other amendment will require leave of court, with notice to the other side and opportunity to be heard, OR written consent of the adverse party or parties.

It’s really that simple. There are some other interesting wrinkles in Rule 15, and we’ll touch on them, but the important thing to remember is that if your pleadings don’t meet the criteria in 1 and 2 above, you must file a motion and get permission of the court to amend or get an agreed order. Note that the rule requires “written consent.” I take that to mean an agreed order of the court, not a handshake deal that is later the subject of heated dispute.

An important caveat: Rule 15 specifically says that leave to amend shall be freely given. Don’t confuse that principle with freely amending without leave of court.

The importance of following the requirements of Rule 15(a) is illustrated by what happened in Lone Star Industries, et al. v. McGraw, decided February 2, 2012. In that case, the Mississippi Supreme Court held that the circuit judge should have dismissed a second amended complaint for failure of the plaintiff to get leave of court before filing it. As a result, some plaintiffs were dismissed from the suit, and the statute of limitations (SOL) has likely run.

You can have a similarly unpleasant result in chancery, although we seldom deal with SOL. Imagine that you have unilaterally updated your modification pleadings 10 days before trial to bring up some claims that surfaced in discovery, only to face an objection at trial that you did not comply with Rule 15. The judge should sustain the objection and throw out your updated claims. In a modification case, that could be significant to your client, because the judgment that results from this trial will time bar any later claims based on acts that precede it.

So, how do you successfully update your pleadings to capture transactions, occurrences or events related to the original claim that occurred after the filing of the original pleadding? You file a motion pursuant to Rule 15(d). If you can’t get the other side to agree via an agreed court order, you should call your motion to amend up for hearing right away, because the judge can deny your request if to grant it would prejudice the other party, as, for instance where you wait until immediately before or the day of trial.

Rule 15(b) says that even if you have not amended, you may be able to get your amendment anyway if you present evidence that is outside the scope of the pleadings at trial and the other side does not object. The court in such a case may allow the pleadings to be amended to conform to the proof. That’s the subject of a post to come later.

Amendments relate back to the date of filing of the original pleading, if they arise out of the same conduct, transaction or occurrence set forth “or attempted to be set forth” in the original pleading. That’s what Rule 15(c) provides, and it has some important language about adding parties.

Sloppy amendment practice makes a mess out of litigation. Recently I delayed a trial and ordered the parties to file updated, consolidated pleadings where there was a train of pleadings extending back to 2008, with petitions, counterclaims, responses and answers to responses of such byzantine proportions that I could not discern what were the issues in the case. I suspect that when the case bubbles back up, many of the issues will have fallen by the wayside, and we will have a streamlined, current, sensible package of issues for adjudication. Or at least that’s what I’m hoping.

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§ 2 Responses to AMENDING BY THE BOOK

  • Judge, good post on a subject that sometimes gets a bit tricky. We’re doing amendments in my Pretrial class right now, and I’m going to point the students to this post.

    I think the tricky part in McGraw (who I represented on appeal) is how Rule 21 interacts with Rule 15 (or if it even should–Justices Kitchens and King thing it shouldn’t). That’s not normally a problem in practice if the pleadings are kept pretty streamlined, though.

    • Larry says:

      Rule 21 requires a motion and court order, which fits nicely with the design of Rule 15.

      Rule 15, in my opinion, is designed to give the judge the opportunity to keep pleadings from growing like topsy.

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