CIVIL PROCEDURE SECTION F CLASS 13 Professor Fischer Columbus School of Law The Catholic University of America Sept. 26, 2003

P.E. 9

What is in an Answer? Notice Pleading applies Admissions 8(b) Denials 8(d) General Denial/Specific Denial Deemed Denials Affirmative Defenses 8(c)

AFFIRMATIVE DEFENSES Enumerated Unenumerated

AMENDMENT Why would a party wish to amend his pleading? What federal rule rule governs amendment?

DO YOU NEED THE COURT’S PERMISSION TO AMEND?

15(a) no leave required if amendment before responsive pelading is seved; or w/in 20 days of serving pleading to which no responsive pleading is required; or if adverse party consents in writing

HYPO Doris Defendant serves her answer on Paul Plaintiff on October 2 and files it on October 3. Can she amend without leave on October 19?

AMENDMENT HYPO Jane serves a complaint on Roger in federal court alleging negligence. After Roger serves his answer, Jane wants to amend her complaint to add a claim for breach of contract. Roger refuses to consent to the amendment. Jane files a motion with the court seeking leave to amend. What is Jane’s burden on the motion? What is Roger’s burden?

LEAVE TO AMEND FREQUENTLY GRANTED Leave shall be “freely given when justice so requires” and will generally be granted UNLESS: 1. The amendment would unfairly PREJUDICE the other party. 2. The party seeking amendment is guilty of unjustified DELAY. (Note that chances of successfully amending go down the closer you get to trial). 3. The party is seeking amendment in BAD FAITH. 4. The amendment would be FUTILE.

ANOTHER AMENDMENT HYPO Advise Sylvester as to whether he needs to do anything more to ensure the amendment is valid.

STILL ANOTHER HYPO Polly sues Dave and Doug for intentional infliction of emotional distress. Dave serves his answer 10 days after the complaint is served on him. Doug files a Rule 12(b)(2) motion to dismiss 5 days after the complaint is served on him. Polly wants to amend her complaint to add a claim for breach of contract against Doug. Can she amend without leave of the court?

WHAT IS THE RELATIONSHIP OF RULES 15(a) and 15(b)?

15(b) is more appropriate if suit has reached trial or post-trial stage BUT motions to amend can be made at any time under 15(a) In practice, courts are willing to grant amendments under either provision UNLESS there is PREJUDICE, DELAY, BAD FAITH, or FUTILITY.

CASE LAW ON RELATION BACK - Worthington v. Wilson

AMENDMENTS AND THE STATUTE OF LIMITATIONS: RELATION BACK Purpose of SOL Researching SOL RELATION BACK --ISSUE: When will an amended pleading be treated as having been filed at the same time, for the purposes of the statute of limitations, as the original pleading?

When will an amended claim “relate back”? What is the applicable provision of the FRCP?

FRCP 15(c) An amended claim will “relate back” to the original pleading where: 1. Same CONDUCT, TRANSACTION, OCCURRENCE - 15(c ) (2) OR 2. The APPLICABLE LAW ON THE STATUTE OF LIMITATIONS allows relation back. 15(c ) (1) OR 3. If adding NEW PARTIES or CHANGING NAME OF PARTY, (1) above applies AND special conditions in 15 (c ) (3) apply.

FRCP 15(c ) (3): Amendment Changing Parties in Complaint Will Relate Back If: Within the 120 day service deadline period under 4(m), the party to be added: 1. Has notice of the action and will not be prejudiced in her defense; AND 2. has knowledge of mistaken identity AND 3. 15( c) (2) applies AND 3. 15(c)(2) applies

IMPORTANT PREREQUISITE FOR RELATION BACK Before there can be relation back, the party seeking amendment must convince court that amended pleading is permitted under FRCP 15(a) or (b).

A Comparison of federal and state law on relation back – Christopher v. Duffy Compare MA rule on relation back when adding parties to federal rule. Which is a better rule, in your opinion? Why or why not?

SUPPLEMENTAL PLEADINGS When and why would a court permit service of a “supplemental” pleading? What rule governs supplemental pleadings? MUST a party serve a supplemental pleading?

HYPO ON RELATION BACK Jim, a pedestrian, brings a claim in negligence against Barry, the driver of a car that struck him. Jim moves to amend to add a claim that Barry negligently failed to stop and render appropriate aid at the scene of the accident. If granted, will this amendment relate back under Rule 15 (c )? Why or why not?

ANOTHER HYPO Erik is angry about a statement made by Professor Fischer in a class hypothetical on 8/27/00 He files a libel action in federal court for the District of Maryland on 9/12/00 naming “Marianne” Fischer as D in his complaint. Erik serves the complaint by personal service on Professor Fischer at the law school on 9/15/00. Assume the statute of limitations is 1 year. Erik learns that Professor Fischer’s first name is not “Marianne” but “Susanna”. On 9/18/01 Erik moves to amend his complaint to change the defendant’s name to “Susanna”. Will the amendment relate back?

TIME LIMITS FOR RESPONDING TO AMENDED PLEADINGS How long does a party have to respond to an amended pleading? What is the governing FRCP?

PRACTICE EXERCISE 10 Tips on Arguing Motions Make argument quickly, assuming judge doesn’t know much about facts/law State who you are and who you represent Tell judge what must be decided Give sufficient information about facts, or cases or rules on which you rely Answer judge’s questions when she asks them Meet your opponent’s arguments