Making Amends

July 8, 2014 § 6 Comments

A recurring mistake that I see lawyers making is to file amended pleadings without complying with MRCP 15. Here’s what the rule says:

(a) Amendments. A party may amend a pleading as a matter of course at any time before a responsive pleading is served, or, if a pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within thirty days after it is served. On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), or for judgment on the pleadings, pursuant to Rule 12(c), leave to amend shall be granted when justice so requires upon conditions and within time as determined by the court, provided matters outside the pleadings are not presented at the hearing on the motion. Otherwise a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.

and

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

So, you may amend:

  1. As a matter of course at any time before a responsive pleading has been served, or
  2. If the pleading is one to which no responsive pleading is permitted and the matter has not been set for trial, then at any time within 30 days of filing the pleading sought to be amended, or
  3. On whatever terms the court directs, if the court dismisses the pleading for failure to state a claim upon which relief may be granted, or
  4. By order of the court on a motion to amend.

Many lawyers routinely file amended pleadings whenever the spirit moves them to do so, well after conditions 1 and 2, above, have elapsed. That is wrong, and against the express language of the rule. The requirement to obtain leave of court to modify is mandatory, and a so-called amendment without court authorization is ineffective. Miss. DHS v. Guidry, 830 So.2d 628, 634-635 (Miss. 2002).     

What about that language “If the pleading is one to which no responsive pleading is permitted …”? What exactly does that mean? When is a pleading ever not permitted? The COA has interpreted that language to include pleadings to which no responsive pleading is required. See, Faye v. State, 859 So.2d 393 (Miss. App. 2003). That would include most, if not all, R81 matters.

The party seeking an amendment should spell out in her motion the substance of the amendment, and the court should assign a reason why it denies the motion. Price v. Price, 430 So.2d 848 (Miss. 1983). That way a record is made. I would add to the motion language spelling out why granting it will result in no prejudice to the other side. Most lawyers attach a proposed amended pleading as an exhibit to the motion. But remember that attaching it to the motion does not mean that the pleading has been filed as a pleading. After the court grants leave to amend, the pleading must be properly filed and noticed. 

Mere filing of a motion to amend does not do the job, as happened in the MSSC case McKnight v. Jenkins, handed down February 24, 2013. A post dealing with this case is here.

It’s has long been a principle of our law that amendments should be freely allowed so that cases can be presented on their merits and fully adjudicated. That does not mean, however, that anything filed in the court file is to be considered a competent amendment. If you want to amend your pleadings, you have to comply with R15, or you might wind up trying less of a case than you really wanted to try.

 

 

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§ 6 Responses to Making Amends

  • […] I also wonder whether that amended complaint was done properly. We’ve talked about that here before. […]

  • Bob Wolford says:

    Regarding this portion of your blog:

    “But remember that attaching it to the motion does not mean that the pleading has been filed as a pleading. After the court grants leave to amend, the pleading must be properly filed and noticed.”

    So language in the proposed Order granting the amendment saying that the “amended pleading attached as Exhibit “A” shall be deemed filed as of the date of this Order” is not going to cut it, correct?

    • Larry says:

      I would say that if your order includes your language that would be notice to parties in the case at that point that the pleading is filed. It’s rare to see that kind of language, though. In those cases where the lawyer bothers to comply with R15, the order nearly always merely grants leave to file the amended pleading. In that situation, the new pleading must then be filed.

      • Bob Wolford says:

        The language that I cited is used with some regularity in bankruptcy court when we filed amended ch 13 plans, schedules, etc. I think for purposes of MS state practice I’ll follow the rule to a “t” and file the amended pleading after entry of the order as the rule contemplates.

        Thanks Judge.

      • thusbloggedanderson says:

        I’ve seen Bob’s language before in circuit court, and darn near overlooked it (& hence would have overlooked answer deadline).

        It never hurts to remind any newer lawyers reading this that there are TEN days to answer an amended complaint, btw. Not thirty!

      • Larry says:

        Yes, a most apt point on the time to answer an amended pleading. The rule expressly states that an answer must be filed ” … within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever is longer, unless the court otherwise orders.” Failure to observe this in circuit court could be fatal, or at least cause some serious bleeding. In chancery, not so much because so many things may not be taken as confessed.

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