AMENDMENT OF PLEADINGS

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What circumstances lead parties to seek to amend?. Patrick submitted a proposed written contract to David under which Patrick agreed to give investment advice to David in exchange for 20% of any increase in the value of David's investments. Over the course of a year, Patrick gave advice to David o

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AMENDMENT OF PLEADINGS

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1. AMENDMENT OF PLEADINGS

2. What circumstances lead parties to seek to amend? Patrick submitted a proposed written contract to David under which Patrick agreed to give investment advice to David in exchange for 20% of any increase in the value of David’s investments. Over the course of a year, Patrick gave advice to David on a monthly basis. David followed Patrick’s advice and doubled his net worth. David refused to pay Patrick. Patrick filed a complaint against David for breach of contract but later concluded that the contract was unenforceable because David never signed it. Patrick wishes to amend the complaint to allege an action in quantum meruit (reasonable value of services rendered).

3. What circumstances lead parties to seek to amend? Richard sues Monte Vista Corporation for personal injuries. He pleads that Monte Vista employees caused his injuries so that MV is liable under respondeat superior. However, later, Richard learns from interrogatories that the workers were actually independent contractors. Now he wants to amend his complaint to plead negligent supervision of the contractor by MV.

4. What circumstances lead parties to seek to amend? Regina sues Poe Foundation for the negligence of Samuel in hitting her with a truck. In deposing Samuel, Regina learns that it was actually Mack who was driving the truck. She moves to amend to allege that Mack hit her instead of Samuel.

5. Amendment as a matter of course The federal rules are extremely liberal Rule 15(a) permits a party to “amend the party’s pleading once as a matter of course at any time before a responsive pleading is served. When no responsive pleading, at any time within 20 days after it is served.

10. Amendment as a matter of course The federal rules are extremely liberal Rule 15(a) permits a party to “amend the party’s pleading once as a matter of course at any time before a responsive pleading is served. When no responsive pleading, at any time within 20 days after it is served.

12. Amending Pleadings To amend afterward, a party must obtain leave of court or the stipulation of the adverse party. The court is directed to permit amendments freely “when justice so requires.” How? Motion under 7(b), with proposed amendment attached.

13. Steve is injured using a lawnmower and sues Row Manufacturing claim Row knew about the defect and recklessly disregarded the hazard to consumers. After discovery was completed and the case was about to go to trial, Steve moves to amend to plead a claim for negligence.

14. Lois sued Hal for breach of contract. Later, just before the trial she seeks to amend her complaint to allege that Hal’s breach of the contract was also a violation of the State’s Consumer Protection Act.

15. Plaintiff has been diligent, but discover new evidence immediately before trial which suggests an important new theory of the case. Grant the amendment but continue the trial.

16. The plaintiff does not plead a particular issue, but both parties assume that it is in contention. They conduct discovery on the point and they in fact try the issue at trial. The spirit of the rules is that the parties should not be confined by the original pleadings if those pleadings do not reflect the parties subsequent understanding of the issues in the case. Rule 15(b) allows the court to proceed as thought the issue had been properly pleaded.

17. Moore v. Moore 391 A.2d 762 (1978)

21. BEECK V. AQUASLIDE 562 F. 2d 537 (8th Cir. 1977)

25. Beeck v. Aquaslide What governs the exercise of judicial discretion to permit amendments which are sought beyond the period where amendment may be made as a matter of course? Time Prejudice Bad Faith

26. Beeck v. Aquaslide There would have been substantial harm to one of the parties whichever way the matter was decided. The court had discretion to allow the amendment as as to avoid an artificial decision what would have ignored the crucial fact that the defendant did not manufacture the defective slide.

27. The Relation Back Doctrine

28. Relation Back of Amendments Sometimes a party will amend a pleading after the statute of limitations has expired. If a party adds a claim against an existing party, does it relate back to the original filing date? If a party adds a new party, does the amended pleading relate back to the original filing date?

29. What does it mean for an amendment to relate back? It means that an amendment is treated as thought it had been filed in its amended form on the day that the lawsuit was originally filed. Relation Back of Amendments

30. Relation Back of Amendments

31. Relation Back of Amendments Changing a Claim or Defense 15(c)(2) allows an amendment changing a claim or defense to relate back, when the claim or defense arose out of the same transaction or occurrence as the claim or defense in the original pleading.

32. Relation Back of Amendments Changing a Claim or Defense 15(c)(1) allows an amendment to relate back to the date of the original pleading when the law providing the statute of limitations permits relation back. If state law provides the statute of limitations in a diversity case, a claim not arising from the same facts as the claim in the original pleading can relate back if state law so provides.

33. Relation Back of Amendments

34. Relation Back of Amendments

35. Relation Back of Amendments

36. Relation Back of Amendments

37. Relation Back of Amendments Changing Parties

38. A specific provision governing amendments which added new parties was added to FRCP 15(c) in 1966. When an amendment changed the party against who a claim was asserted, it would relate back if: Relation Back of Amendments Changing Parties

39. It arose from the same transaction or occurrence and . . . . . . Relation Back of Amendments Changing Parties

40. The party to be brought in by amendment had received “such notice of the institution of the action that the party would not be prejudiced in maintaining a defense on the merits;” and . . . Relation Back of Amendments Changing Parties

41. This notice had be be received “within the period provided by law for commencing the action against the party to be brought in by amendment;” and . . . . Relation Back of Amendments Changing Parties

42. It had to be shown that the party brought in “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.” Relation Back of Amendments Changing Parties

43. Relation back Rule as of 1966

44. Schiavone v. Fortune 477 U.S. 21 (1986)

45. Schiavone v. Fortune HELD: The one-year statute of limitations applicable to the action had run. Thus, the amendment did not relate back. Although Time had received notice of the action within the 120-day period under Rule 4, the party to be brought in had to receive notice of the action within the limitations period.

46. Schiavone v. Fortune Commentators strongly criticized the Schiavone decision. “If Time had been properly named in the complaint and had been served after the one-year period had run, the action would have been timely. Yet under such circumstances, Time would still not have received notice of the action within the limitations period. Furthermore, when Time did receive notice of the action, it understood perfectly that the plaintiff had made a mistake in naming the defendant and that it was the defendant who should have been sued.”

47. …as applied in Schiavone

48. Relation back Rule as of 1966

49. The Schiavone Amendment to 15(c) (3) when the amendment changes the party or the naming of the party against whom a claim is asserted and (a) the same transaction or occurrence test of (c)(2) is satisfied, (b) the party to be brought in receives notice within the 120-day period for service of process (Rule 4), (c) the notice is sufficient to prevent the party from being prejudiced in maintaining a defense of the merits, and (d) the party knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

50. …as amended after Schiavone

51. Worthington v. Wilson 790 F.Supp. 829 (C.D. Ill. 1992)

52. …as applied in Worthington

53. Worthington v. Wilson Under the amended version of 15(c) Worthington’s amended complaint would relate back to February 25, 1991 if the defendants were aware that they were the “unknown officers” and they concede that they knew of the pendency of the lawsuit within 120 days of the filing of the original complaint.

54. Worthington v. Wilson Defendants argue that there was no “mistake.” The court finds that lack of knowledge is not included within the meaning of “mistake.” Is this decision correctly decided?

55. Supplemental Pleadings Upon a proper motion, 15(d) permits “supplemental pleadings.” Directed toward transactions or events that have happened after the date of the pleading sought to be supplemented.

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