A Brief Word About Amendments

March 28, 2018 § 5 Comments

This from footnote 6 to the COA’s opinion in Alexander v. Pitts, decided November 14, 2017:

“If a party fails to seek leave of court or permission of the opposing party prior to amending pleadings, such amendment is improper and will be struck.” D.P. Holmes Trucking, LLC v. Butler, 94 So.2d 248, 255 (¶20)(Miss. 2012).

MRCP 15(a) could not be clearer. Here are the only ways to amend your pleadings:

  1. If no responsive pleading has been filed, you may amend at any time, subject to 2, below;
  2. If no responsive pleading is permitted (see below), and the action has not been placed on the trial calendar, you may amend at any time within thirty days after it is served;
  3. If a R12(b)(6) motion is granted against you, you may amend if the court grants you leave to do so, and subject to the conditions imposed by the court;
  4. In the course of a trial you may ask the court to amend the pleadings to conform to the proof, if you follow the procedure spelled out in R15(b);
  5. If none of the above apply, the only way you can amend only by leave of court or upon written consent consent of the adverse party.

If you don’t follow the procedures above, you are running the risk that the other party will ask at the most inopportune time to dismiss the very pleading that you thought you had shown up to try and into which you had invested all your preparation time. And — worse — if the judge shrugs off the other side’s objection and lets you go on for two or three days, you stand to have to do a re-do after the COA reverses and remands.

Moral of the story: Read R15 and follow the amendment procedures exactly.

A query and a comment: Does anyone know what sort of pleading is one to which “no responsive pleading is permitted,” as mentioned in R15(a)? R81(d)(4) talks about answers not being required in certain chancery matters, unless ordered by the court. I am not aware of any proceeding in which no responsive pleading is permitted.

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§ 5 Responses to A Brief Word About Amendments

  • John H. (Zeke) Downey says:

    Judge, you ask what sort of pleading are not allowed. Did we not used to file replications to answers in the dark old days of common law and ancient chancery practice? These are no longer allowed under Rule 7. What would be required if an answer set up an affirmative defense which the plaintiff wanted to claim was not available to the defendant under doctrines of waiver and estoppel? I suppose he would not be allowed to reply and would simply argue the point?

    • Larry says:

      Most people would probably just file an answer and no one would challenge it; however, the best practice consistent with the rule would be to file a motion asking the court for leave to file an answer in that situation. That’s my best guess.

  • Tom Teel says:

    My understanding has been this—I believe there are matters, like a divorce, that cannot be taken without proving your case ; therefore, a defendant who does not seek affirmative relief in that divorce does not need to answer in order to defend.

    • Larry says:

      I totally agree that there are pleadings to which no answer is required — as in the case you mention; what I don’t get is the language “one to which no responsive pleading is permitted.” I don’t know of a pleading to which no responsive pleading is permitted.

    • Larry says:

      … but the answer may be in R7(a), which states what pleadings are allowed, and says that “no other pleadings are permitted …” unless the court allows an answer to a 3rd-party answer.

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