Leave to Amend is not Automatic

March 20, 2018 § Leave a comment

Conventional wisdom has it that the court will freely grant leave to amend. While there is truth to that, it’s not always the case that you will be given leave to do so in every situation.

When the court grants a R12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, ” … leave to amend shall be granted in accordance with Rule 15(a).” R 15(a) states, in part, that ” … a party may amend a pleading only by leave of the court or upon written consent of the adverse party; leave shall be freely given when justice so requires.”

Cases construing R12(b)(6) have held that, once the motion is granted, the dismissed party must file a R15(a) motion asking leave to amend, attaching a proposed pleading, and giving the court enough information to make a finding that “justice so requires” the amendment.

Claire Flowers and Jane Paixao had filed contested pleadings in the estate of their mother. In the course of the proceedings the court granted a R12(b)(6) motion as to some of the issues they raised and as to certain parties. When they asked the court for leave to amend, the court denied their motion. Following a final judgment they appealed.

On the issue of the chancellor’s denial of the motion to amend, the COA affirmed. In the case of Flowers, et al. v. Estate of Flowers, decided February 6, 2018, Judge Carlton wrote the opinion that laid out the pertinent facts and rationale:

¶23. We next consider Claire and Jane’s contention that the chancellor erroneously denied Claire’s Rule 15(a) motion to amend her petition. The sisters argue that none of the various attorneys asserted they would suffer prejudice if the chancellor granted the motion to amend. We review the denial of a motion to amend for abuse of discretion. Crater v. Bank of New York Mellon, 203 So. 3d 16, 19 (¶7) (Miss. Ct. App. 2016).

¶24. As previously discussed, Claire filed an amended petition for compensatory and punitive damages in which she sought to assert claims of fraud and negligence per se against the attorneys who represented the interests of Brenda’s estate, the testamentary trust, and D.A.’s guardianship. Claire then filed a Rule 15(a) motion for leave to admit her amended petition. The specially appointed judge denied Claire’s motion for leave to admit and dismissed her claims against the attorneys, finding that Claire failed to state a claim under Rule 12(b)(6). The special judge also granted the attorneys’ motions to strike themselves as defendants due to Claire’s failure to obtain leave to join them under Mississippi Rule of Civil Procedure 21.

¶25. Following the Rule 12(b)(6) dismissal of her claims, Claire filed a motion for leave to amend her petition under Rule 15(a) to include claims against the attorneys and to allege “fraud and negligence per se with the correct specificity.” However, Claire’s motion for leave to amend failed to provide the substance of the amendment to inform the court of what facts or acts constituted the fraud or negligence per se. See M.R.C.P. 9(b) (providing that fraud must be pled with specificity); Faul v. Perlman, 104 So. 3d 148, 156 (¶26) (Miss. Ct. App. 2012) (discussing the elements a plaintiff must show to establish negligence per se). [Fn 7] The motion to amend instead contained only bare allegations and no facts from which to determine the existence of a cause of action.

[Fn 7] See also Price v. Price, 430 So. 2d 848, 849 (Miss. 1983) (“When a party proposes to amend his pleading, he should ordinarily make known to the trial court the substance of his proposed amendment.”).

¶26. One of the attorneys identified in Claire’s petition and amended petition filed a response that the other attorneys joined. In asking the court to deny Claire’s Rule 15(a) motion to amend, the attorneys noted that Claire had failed to “attach a proposed amended petition that would permit the [c]ourt to determine whether justice requires that leave to amend be granted.” The attorneys also noted they had been “dismissed as [respondents] . . . as a result of [Claire’s] failure to obtain leave of court to add [them] as [parties].” Furthermore, the attorneys contended that, even if the court granted Claire’s motion to amend, the amendments would not affect them because of their prior dismissal from the matter under Rule 21. As discussed, the record shows that Claire’s motion for leave to amend indeed failed to inform the chancellor of what facts or acts constituted fraud or negligence per se.

¶27. Where a trial court dismisses a complaint under Rule 12(b)(6) for failure to state a claim, Rule 15(a) requires the trial court to freely give the plaintiff the opportunity to amend her complaints “when justice so requires.” M.R.C.P. 15(a). As previously discussed, we will affirm the chancellor’s decision “unless the discretion he used is found to be arbitrary and clearly erroneous.” Breeden v. Buchanan, 164 So. 3d 1057, 1064 (¶27) (Miss. Ct. App. 2015) (quoting Poole v. Avara, 908 So. 2d 716, 721 (¶8) (Miss. 2005)). In the present case, we have the benefit of the chancellor’s explanation since the record sets forth why he denied Claire’s Rule 15(a) motion to amend. See Breeden, 164 So. 3d at 1064 (¶¶28-31) (finding an abuse of discretion where a chancellor failed to explain his denial of the plaintiff’s Rule 15(a) motion). The specially appointed judge found that Claire had failed “to state how she would amend her prior pleadings or . . . to attach a proposed amended pleading [that] would allow the [c]ourt to determine whether justice required that she be given leave to file amended pleadings[.]”

¶28. The record here demonstrates that Claire failed to meet her burden to sufficiently support an amendment of her petition. Furthermore, the chancellor dismissed the attorneys from the litigation under Rule 21 because Claire failed to obtain the court’s leave to join them, and Claire filed no appeal of the attorneys’ dismissal. See Crater, 203 So. 3d at 21 (¶16) (finding no abuse of discretion in the denial of a Rule 15(a) motion to amend where the motion only asserted claims against a nonparty and the claims were futile). For these reasons, we find no abuse of discretion from the chancellor’s denial of Claire’s Rule 15(a) motion to amend. See id. at 19 (¶7). We therefore affirm the chancellor’s judgment with regard to this issue.

So:

  • It’s a good practice, whenever you need a court order to amend your pleadings, to attach a proposed pleading to the motion. That proposed pleading must state a claim sufficient to survive its own R12(b)(6) motion, or your motion to amend will be denied because justice does not require leave to amend to state an insufficient claim.
  • R21 joinder of parties requires leave of court. (And a reminder that there is a specific procedure to allow intervention per R24, as I have posted about here previously).
  • Conventional wisdom is better than no wisdom at all, I reckon; however, don’t let conventional wisdom substitute for your own thought processes or for reading (and following) the rules.

NOTE: The court reached a similar conclusion in a companion case about which I posted at this link.

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