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When Justice So Requires

An Early Question

1. Gower, a lawyer, calls his student law clerk, Violet, into the office and asks her, “I filed a complaint in federal court today against Potter. I had to file it in a hurry. How long do I have to amend it without having to make a motion to the judge?” Violet looks up the rule and responds, “twenty-one days.” Gower fires Violet. Why? (The explanations begin on p. 400.)

Ordinarily, no further pleading is required in response to an answer; in the typical two-party case the complaint and the answer are the only pleadings filed. See Fed. R. Civ. P. 7(a). The defendant’s answer to the complaint “closes the pleadings.” However, Rule 15(a)(1)(B) also allows a defending party a chance to amend as a matter of course, within twenty-one days after serving its answer to the complaint. This provides defending parties with a twenty-one day window after serving the answer to file an amended answer, without seeking permission from the court or the adverse party.


After the period for an amendment as of right has gone by, a party must obtain the court’s permission or consent of the adverse party to amend its pleading. See Fed. R. Civ. P. 15(a)(2), which provides that the court “should freely give leave when justice so requires.” This is a very liberal standard, which tells judges to be flexible in allowing parties to amend their pleadings. At least early in the litigation, there is a presumption in favor of allowing amendments, unless the opposing party provides a substantial reason for denying them.

To appreciate the reason for such a liberal standard for amendments, consider how cases would be tried if parties were not allowed to amend the pleadings. A party would only be able to recover by proving exactly what she pleaded in the original complaint. Suppose that Martini sued Potter for an accident on Main Street, alleging that Potter deliberately ran a red light and plowed into Martini. Suppose further, that during discovery Potter’s chauffeur testified that he did not deliberately run the light, but his brakes failed because they had been inadequately maintained. At this point, Martini would of course want to change his position, to allege negligent maintenance by Potter as the cause of the accident. If the system did not allow such changes in the allegations, Martini would lose his case, even if Potter’s negligence had caused the accident. The common law at its most formalistic apparently took this rigid approach. Parties were forced to plead one version of their claim, and to prove that at trial. A “variance” from the initial pleading could prove fatal to the case, even if the plaintiff could prove facts that merited relief. See J. Koffler and A. Reppy, Handbook of Common Law Pleading, 145.

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