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When Justice So Requires


When Justice So Requires

Amendments to Pleadings under the Federal Rules


Under the Federal Rules of Civil Procedure, parties commence litigation by filing their initial pleadings—the complaint and the answer. The plaintiff starts the action by filing the complaint (Fed. R. Civ. P. 3) and serving it on the defendant. In most cases, the defendant responds by filing an answer. Fed. R. Civ. P. 12(a)(1)(A). These pleadings set forth the basic positions of the parties about the dispute, the claims and defenses they hope to establish at trial.

Naturally, when the parties file the original complaint and answer, their understanding of their claims and defenses will be incomplete. They will certainly have done some investigation, and given serious thought to their legal theories and positions on the disputed facts. Indeed, Rule 11 requires them to do so. See Fed. R. Civ. P. 11(b)(2), (3). But at the time the complaint and answer are drafted, much of the detailed development of the case lies ahead. Parties are not entitled to engage in discovery—the process of court-enforced disclosure of information by other parties and witnesses—until the case has been filed. And, given human nature, the intense focus of many litigators is not on embryonic cases that are at the pleading stage, but mature ones that are about to go to trial.

When the parties do get into the details, through post-pleading factual investigation, discovery, preparation of expert witnesses, and legal research on theories of claim and defense, their understanding of their positions may change. They may, in light of their evolving understanding of the case, wish to add or change the legal theories in their pleadings. Perhaps the plaintiff pleaded breach of contract in the original complaint, but begins to doubt that the contract is enforceable. Consequently, she wants to assert a claim for recovery on a quantum meruit theory. Perhaps she pleaded a claim based on strict products liability, but learns that the court is unlikely to apply strict liability for one reason or another, and wishes to add a negligence claim. Perhaps the defendant learns facts in discovery that would suggest that the plaintiff had waived performance of a requirement of the contract, and wants to amend to add that affirmative defense to his answer.

Preparation of the case may also lead parties to want to change the factual allegations asserted in their original pleadings. Perhaps the plaintiff pleaded that she was arrested by Officer Rivera, only to learn through discovery that the arresting officer was O’Brien. Perhaps she pleaded that she was arrested by officers of the Bedford Falls police department, but learns through discovery that officers from Pottersville also took part. Perhaps the defendant in a false arrest case pleaded in its answer that a clerk had seen the plaintiff steal merchandise before she was detained, but later learns that it was a customer who made the allegation.

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