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.

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.

 

 

FAILURE TO AMEND

February 19, 2013 § 1 Comment

It’s pretty common for lawyers to file pleadings subsequent to their initial pleading with updated allegations, added issues, and the word “Amended” prominently displayed in the document’s title. Quite often the lawyer on the other side treats the subsequent pleading(s) as the one(s) at issue, and the proof proceeds accordingly.

That practice, however, is not what the rules require, and, as we shall see, can cost your client big time. The proper procedure to amend pleadings is set out in MRCP 15:

(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 to amend after the deadline in R15(a), you have to get leave of court. Otherwise, that “Amended” pleading is a nullity.

That’s what happened in McKnight v. Jenkins, decided February 14, 2013, by the MSSC.

Holly McKnight filed a petition to modify custody against Walter Jenkins, the father of her child whom she had given custody in a prior judgment of the court. Walter countered with a counterclaim for contempt and for modification. The contempt allegation was based on Holly’s alleged failure to return all of the child’s belongings at the conclusion of visitation. Some time before the date set for hearing, Walter filed a motion to amend his pleading to add the allegation that Holly had failed to pay her share of the child’s medical expenses, but Walter never presented the motion to the court.

Following a hearing, the chancellor denied Holly’s petition to modify, but found her in contempt for failure to pay the medical bills, and ordered her to pay Walter $21,000 for her share.

The MSSC reversed, pointing out that in order to recover on a contempt claim, there must be a pleading putting the other party on notice. The unamended pleading simply did not support the relief granted. By failing to get a court order granting leave to amend, Walter’s award of $21,000 was reversed.

There is language in the opinion to the effect that the parties understood that the issue of contempt for failure to pay the medical bills was not properly before the court, and the judge acknowledged as much, but he went ahead and adjudicated contempt anyway, which was error. Of course, had the issue been tried without objection, Walter’s lawyer could have made a timely motion to conform the pleadings to the proof, as set out in MRCP 15(b):

(b) Amendment to Conform to the Evidence. When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the maintaining of the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. The court is to be liberal in granting permission to amend when justice so requires.

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