How Do I Amend a Complaint in Federal District Court?
Full Question:
Answer:
Typically, a complaint may be amended as of right before a responsive pleading is filed. You may see the links to the forms below or contact our drafting department with your information at the following link and ask for a time estimate:
https://secure.uslegalforms.com/cgi-bin/survey/questionaire?US-DRAFTREQUEST
Please see the following federal civil rules:
Rule 15. Amended and Supplemental Pleadings
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.
(b) Amendments During and After Trial.
(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.
(2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move — at any time, even after judgment — to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.
(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
(2) Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney's designee, to the Attorney General of the United States, or to the officer or agency.
(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.
CIVIL RULE 7.1 MOTION PRACTICE, EXTENSIONS, ENLARGEMENTS OR SHORTENING OF TIME, SUBMISSION OF ORDERS
a. Scope of Rule. Unless otherwise ordered by a judge of this district, or unless contrary to statute or in conflict with a provision of the Fed.R.Civ.P., the provisions of this rule will apply to motions, applications and orders to show cause, or other request for ruling by the court. Such matters include motions to withdraw the reference from the bankruptcy court, appeals of orders by the bankruptcy court, and objections to magistrate judge's orders pursuant to Rule 72.a, Fed.R.Civ.P.
b. Motion Hearing Dates. All hearing dates for any matters on which a ruling is required must be obtained from the clerk of the judge to whom the case is assigned.
c. Computation of Time. All legal holidays and computation of time must be as provided in Rule 6, Fed.R.Civ.P.
d. Argument and Submission.
1. Written and Oral Argument. Motions must be determined upon the moving papers referred to herein and oral argument. A judge may, in the judge's discretion, decide a motion without oral argument.
2. Argument by Telephonic Conference. At the discretion of the court, argument concerning a noticed motion may be conducted through the use of a telephone conference call, said call to be arranged, initiated and paid for by the party proposing this method of oral argument. If such telephonic argument is approved by the court, the matter may be taken off the regular motion hearing calendar, and reset for a date and/or time more convenient to the court and the parties.
e. Time for Hearing and Schedule for Filing Papers.
1. The Twenty-eight (28) Day Rule — Setting Time for Hearing. When there has been an adverse appearance, a written notice of a matter requiring the court's ruling is necessary, unless otherwise provided by rule or court order. Pursuant to the provisions of Civil Local Rule 7.1.b all hearing dates for any motion must be obtained from the law clerk of the judge to whom the case is assigned. Unless the court shortens time and except as otherwise specified in Civil Local Rule 7.1.e.6, any notice of motion, application or notice of other matter requiring the court's ruling, plus all necessary supporting documents, will require a minimum filing date of twenty-eight (28) days prior to the date for which the matter is noticed. (For example, the notice of motion and supporting documents for a motion to be heard on a Monday must be filed and served no later than the fourth (4th) Monday prior to the Monday hearing. If the fourth Monday prior to the Monday hearing is a holiday, however, then the notice of motion and supporting documents would be due five (5) Fridays before the hearing.)
2. Time for Filing Opposition. Except as otherwise specified in Civil Local Rule 7.1.e.1, each party opposing a motion, application or order to show cause must file that opposition or statement of non-opposition with the clerk and serve the movant or the movant's attorney not later than fourteen (14) calendar days prior to the noticed hearing. (For example, for a motion to be heard on a Monday, the opposition papers must be filed and served no later than two Mondays prior to the noticed hearing.)
3. Reply Memorandum of Points and Authorities. Except as otherwise specified in Civil Local Rule 7.1.e.1, any reply memorandum must be filed and served not later than seven (7) days prior to the date for which the matter is noticed. (For example, for a hearing, * the reply papers must be filed and served no later than by the Monday prior to the hearing. If the Monday prior to the hearing is a holiday, however, then the reply papers would be due two (2) Fridays prior to the hearing.) See Fed.R.Civ.P. 6(e).
4. Service of Motions and Opposition by Mail. For those parties not required or authorized by the court to file and serve motions and oppositions electronically using the Case Management/Electronic Case Filing System, unless otherwise provided by order of the court, the sixty (60), twenty-eight (28) and fourteen (14) day periods of notice set forth in Civil Local Rules 7.1.e.1, 7.1.e.2 and 7.1.e.6 are increased for purposes of mail service upon opposing parties of counsel by three (3) days. The extension of time for service does not extend court filing deadlines. Federal Rule of Civil Procedure 60(d), extending the time within which an act may or must, be done, does not apply to the notice periods governed by this section. Any motion, notice of motion, or opposition, and supporting documentation will not be accepted for filing unless accompanied by proof of service demonstrating either hand-delivery or compliance with this section's mailing provisions.
5. Applications for Orders Shortening Time. All applications for orders shortening time under these rules must be submitted ex parte, be accompanied by a proposed order, and be served on all opposing parties.
6. Social Security Cases. In all actions brought under either or both § 205(g) of the Social Security Act, 42 U.S.C. § 405(g) or § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3), any notice of motion for summary judgment or for other disposition on the merits without a trial plus all necessary supporting documents must be filed with the clerk and served on the other party or the party's attorney not later than sixty (60) days prior to the date for which the matter is noticed. If the opposing party wishes to file a cross-motion for summary judgment or for other disposition on the merits without trial, that party must comply with the filing requirements of Civil Local Rule 7.1.e.1 (i.e., such cross-motion must be filed twenty-eight (28) days prior to the date for which the matter is noticed. (Any opposition to the cross-motion must be filed and served no later than 14 days prior to the day for which the matter is noticed.) Any reply to that opposition must be filed and served no later than seven (7) days prior to the date for which the matter is noticed.
7. Untimely Motions. The clerk's office is directed not to file untimely motions and responses thereto without the consent of the judicial officer assigned to the case.
8. Special Briefing Schedules. All documents to be filed in response to a special briefing schedule must contain the language "special briefing schedule ordered" directly below the designation of the document's nature.
f. Contents of Papers Filed.
1. Motions, Notices, Statement of Facts. Each motion or other request for ruling by the court must be accompanied by a separate motion and notice of motion and another separate document captioned "Memorandum of Points and Authorities in Support of [the motion]." Where appropriate, a separate statement of material facts must be supplied.
2. Movant
a. In addition to the affidavits required or permitted by Fed.R.Civ.P. 6(d) and 56, copies of all documentary evidence which the movant intends to submit in support of the motion, or other request for ruling by the court, must be served and filed with the notice of motion.
b. Waiver — A movant's failure to file any papers required under the local rules may be deemed as a waiver of the motion, or other request for ruling by the court.
3. Opposing Party
a. Unless otherwise provided by rule or court order, a party opposing a motion, or other request for ruling by the court must file a written opposition. If such party chooses not to oppose the motion, the party must file a written statement that the party does not oppose the motion or other request for ruling by the court.
b. Opposing party's papers and contents: Documentary evidence and points and authorities — The opposition must contain a brief and complete statement of all reasons in opposition to the position taken by the movant, an answering memorandum of points and authorities, and copies of all documentary evidence upon which the party in opposition relies.
c. Waiver: If an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other request for ruling by the court.
g. Withdrawal, Continuance, Failure to Appear.
1. Withdrawal. Any movant who does not intend to proceed with a motion or other request for ruling by the court must notify opposing counsel and the judge before whom the matter is pending as soon as possible.
2. Continuances. Any request for continuance of a noticed matter must be made as soon as possible to the judge to whom the matter is assigned. Prior to seeking such continuance, the party seeking the continuance must contact all opposing parties or their counsel to determine whether they would agree to such continuance.
3. Failure to Appear. If no one appears to oppose a motion or other request for ruling, the movant must relate the matter's material elements and the court may render its decision.
h. Length of Brief in Support of or in Opposition to Motions. Briefs or memoranda in support of or in opposition to all motions noticed for the same motion day must not exceed twenty-five (25) pages in length for all such motions without leave of the judge who will hear the motion. No reply memorandum will exceed ten (10) pages without leave of the judge. Briefs and memoranda exceeding ten (10) pages in length must have a table of contents and a table of authorities cited.
i. Applications for Reconsideration.
1. Whenever any motion or any application or petition for any order or other relief has been made to any judge and has been refused in whole or in part, or has been granted conditionally or on terms, and a subsequent motion or application or petition is made for the same relief in whole or in part upon the same or any alleged different state of facts, it will be the continuing duty of each party and attorney seeking such relief to present to the judge to whom any subsequent application is made an affidavit of a party or witness or certified statement of an attorney setting forth the material facts and circumstances surrounding each prior application, including inter alia: (1) when and to what judge the application was made, (2) what ruling or decision or order was made thereon, and (3) what new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon such prior application.
2. Except as may be allowed under Rules 59 and 60 of the Federal Rules of Civil Procedure, any motion or application for reconsideration must be filed within twenty-eight (28) days after the entry of the ruling, order or judgment sought to be reconsidered.
j. Joinders in Motions.
1. The clerk must refuse to accept for filing any joinder in motions if there are no pending motions on file.
2. Each joinder must specifically identify the party(s) and the particular motion(s) to which the joinder applies.
CIVIL RULE 15.1 AMENDED PLEADINGS
Unless prior approval is obtained from the court, every pleading to which an amendment is permitted as a matter of right or has been allowed by court order, must be retyped and filed so that it is complete in itself without reference to the superseded pleading. All amended pleadings must contain copies of all exhibits referred to in such amended pleadings. Permission may be obtained from the court, if desired, for the removal of any exhibit or exhibits attached to prior pleadings, in order that the same may be attached to the amended pleading. Each amended pleading must be designated successively as first amended, second amended, etc.
See also:
http://www.law.cornell.edu/rules/frcp/Rule77.htm
