Civil Procedure – Feb. 13

1. Civil Procedure – Feb. 13 Amendments

2. Rule 14 review • Rule 14 (impleader) looks to substantive law or actual contractual documents to see if party not already in the claim is or may be liable to the defendant for all or part of the plaintiff’s claim against the existing defendant.

3. Amendments • We are studying R. 15 at the end of our section on pleadings b/c it deals with amendments to pleadings. As a practical matter, amendment issues often arise during or after discovery. Why are parties most likely to seek leave to amend during/after discovery? • Who can amend pleadings – plaintiff or defendant?

4. Hypo • Defendant files a 12b6 motion. While that motion is pending, the plaintiff wants to amend her original complaint. What does she need to do to amend the original complaint? • Anne Anderson sues W. R. Grace & Beatrice. WR Grace answered but Beatrice got an extension and has not yet answered. Before Beatrice answers, Anderson wants to amend and add another negligence claim against Beatrice. What does she need to do to amend the original complaint and add this new claim?

5. More hypos • In Anderson v. Grace, both defendants file their answers. A week later, the plaintiffs realize that they have a potential additional negligence claim. What must they do in order to file an amended complaint with that new claim? • In Anderson v. Grace, both defendants file their answers. A week after filing its answer, Grace realizes it omitted an affirmative defense. What must Grace do in order to file an amended answer. What if Grace realized it omitted the defense two months after it filed its Answer?

6. Consent • Rule 15(a)allows amendment w/out leave of court if your opponent consents (in writing). Why would you consent to opponent’s request to amend?

7. Which pleading governs? In Anderson v. W.R. Grace et al, there was an original complaint, a first amended complaint and a second amended complaint. At the time of trial, the defendants seek to litigate an issue that was raised in the original complaint but was not raised in the second amended complaint. May they do that?

8. Ridge v. Utiliquest • What were the claims in the original complaint? • What is the proposed amendment? • What is the standard for deciding whether to grant an amendment?

9. Factors in R. 15 • The court lists numerous factors it considers in deciding whether to grant a motion to amend. What are they? How would you know, from reading Rule 15, that you have to address these issues? • Undue delay; bad faith or dilatory motive; repeated failure to cure; undue prej to oppon and futility

10. Ridge cont’d • What are the defendant’s arguments as to why the amendment should not be allowed? • What are the plaintiff’s arguments as to why it should be allowed (try and counter the defendant’s arguments –do a better job than the lawyers in this case)

11. Policy • What are the two competing policy considerations that a court is balancing when deciding whether to grant leave to amend.

12. Beeck v. Aquaslide • What are the relevant facts? • What was Aquaslide seeking to amend? Why was it doing it so late in the litigation?

13. MOTIONS ARGUMENT. You and a colleague will be asked to stand up and argue against another team. Using the factors the court should consider in deciding whether to grant a motion to amend, argue both for the defendant seeking to amend and the plaintiff seeking to prevent the amendment.

14. Beeck cont’d • Is it true, as the court suggests, that the parties are equally to blame for the misidentification of the slide? • Does anything in your analysis of this case change if you consider that Aquaslide and its president were aware that other manufacturers had been copying their slides, and there had been several other lawsuits in which it turned out that the slides were made by competitors?

15. Beeck cont’d • If the amendment had been denied, how would Aquaslide defend the negligent manufacture claim – would it show its own manufacturing process; would it show the manufacturing process of the actual manufacturer?

16. See note 4 p. 399-400 • Ps sued on the theory of reckless misrepresentation. The Iowa Supreme Court recognized this theory of recovery but held that to prevail at trial, plaintiffs would have to show they would have recovered a judgment against the actual manufacturer and that the judgment would have been collectible. Do you think the plaintiffs could make this showing?

17. Beeck • Do you agree/disagree with what the trial court did in this case? Why?

18. Examining the Rule 15 factors • Plaintiff filed a complaint which was dismissed because she didn’t allege fraud w/enough particularity; she filed another complaint which also was dismissed because key facts were missing. She sought leave to amend and add more facts. What’s the best argument to defeat this amendment?

19. More ? • Plaintiff filed a complaint which defendants removed to federal court. Plaintiff then sought leave to amend to add another defendant (who would destroy diversity). What’s the best argument to defeat this amendment?

20. Query • Can the defendant argue it is prejudiced by the addition of a new claim because it now has to defend against another claim and could be found liable on this new claim?

21. Query • Plaintiff is way behind in her preparation for trial. She files a motion to amend and add a claim knowing that if it is granted, the court will also grant a trial continuance. What’s the best argument to oppose this motion?

22. Undue delay • Most courts say undue delay, in itself, is not usually grounds to deny an amendment, it must be combined with some other factor. • But – if the scheduling order says that all amendments must be filed by May 1, 2008 and you file a motion to amend on July 1, 2008, are you likely to get that amendment granted?

23. Preview of R. 15 c • What is the policy underlying statutes of limitations?

24. Relation Back • Relation back is a legal fiction - we will pretend that you filed your amended complaint on the date you filed your original complaint (thus, for example, we can avoid the problem caused by the fact that your amended claim, if filed today, is actually barred by the Statute of Limitations (SOL).

25. Examples • Original negligence claim filed Jan. 15, 2008 • SOL runs March 1, 2008 • Seek to amend and add claim for willful and wanton negligence on April 4, 2008. It can’t be done b/c SOL has run – UNLESS it “relates back” to the date you originally filed your claim which was before the SOL had run.

26. 15 c only applies to claims (complaints, cross & counter claims • Amendments apply to complaints and answers. 15 c - relation back - applies only to claims. Why?

27. Relation Back – 15(c)1 • We will not look at in detail is Rule 15(c)(1) - which says relation back is permitted when it is allowed by the law that provides the SOL applicable to the action. This comes into play when there is a specific state law that applies - e.g. in some states the law is that if you name a John Doe in your complaint and later discover the identity of John Doe, you may substitute the actual party for the John Doe that was named in your complaint — even if it is after the SOL has run - that is the kind of situation referred to in (c)(1).

28. 2 kinds of relation back • 15(c)2 – Relation back of claims (when you want to add a new claim after the SOL has run) • 15(c)3 – Relation back of parties (when you want to add a new party after the SOL has run) • READ THE RULES CAREFULLY!!!!!!