Glossary of Amending the Pleadings- Civ Pro II
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- FR 15a Amendments w/out the Ct's Permission
(Amendment as a Right)
- Pleading can be amended once as a matter of right (meaning before the responsive pleading)
- Amending the Complaint
- Can be amended anytime before the answer is served (answer is different than motion)
- Amending the Answer
- If a response is NOT required by the pleading, it maybe amended within 20 days after it is served.
- When is the Courts permission necessary to amend?
- -at all times except for when it can be amended as a matter of right.
- What do you need to obtain to amend?
- Written consent of the adverse party or permission from the court, which "shall be freely given whenjustice so requires."
- The "Relation Back" doctrine
(Amending the Pleadings)
- 15c-a technique used to amend the plead when statute of limitations has expired b/t the service of the original pleading and the subsequent amendment.
- Relation Back, con't
Change of Parties
- -Cannot use this doctrine if there are new parties.
Exception: when the wrong person is sued.
- Will Relate back when...
- 1. Same transaction or occurrence
2. Other party receives Notice
3. The party knew or should have known that, but for the mistake, the action would have been brough agains them (120 days).
- Test for the Same Transaction or Occurrence
(with respect to Amendments)
- If what is amended is simply P's claim or theory, the ct will typically find that the same conduct test is satisfied. BUT where the underlying facts needed to sustain the new pleading are materially different from those in the original complaint, ct usually doesn't allow it.
- Amendments to Conform to the Evidence (15c)?
- Necessary when issues not raised by the pleading are tried by express or impled consent of the parties, they shall be treated as if raised in the pleadings.
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