CIVIL PROCEDURE SECTION F CLASS 13

Professor FischerColumbus School of Law

The Catholic University of America

Sept. 21, 2005

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

EnumeratedUnenumerated

AMENDMENT

Why would a party wish to amend his pleading?

What federal rule rule governs amendment?

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?

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?

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?

Liberal Amendment Rules

15(a) – amendment as of right 15(a) “leave [to amend] shall be

freely given when justice so requires”

LEAVE TO AMEND FREQUENTLY GRANTED

Leave will generally be granted UNLESS:

1. PREJUDICE 2. DELAY 3. BAD FAITH. 4. FUTILE.

ANOTHER AMENDMENT HYPO

Tweetie Bird obtains oral consent from Sylvester to an amendment to his complaint

Advise Tweetie as to whether he needs to do anything more to ensure the amendment is valid.

WHAT IS THE RELATIONSHIP OF RULES

15(a) and 15(b)?

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: Singletary case

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 STATE 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