Justia Lawyer Rating
Best Lawyer
Super Lawyer - Top 100
Super Lawyer - Top 100
Best Lawyers
Avvo Rating 10.0
AV Preeminent
The National Trial Lawyers
The Best Lawyers in America
Best Lawyers
CLEA
Advocates for Justice
Business North Carolina Legal Elite - 2021
DUI Defense
NBTA
*For additional information regarding the criterion for inclusion or membership for lawyer associations, awards, & certifications click image for link.

Civil Procedure II Outline - Part 13

Download the PDF version of this outline

<< Part 12 | Part 14 >>

Good Faith Arguments for Changes in Law
  • Rule 11(b)(2) tolerates nonfrivolous argument for extending, modifying, or reversing existing laws or for establishing new law
    • Most likely to apply to a situation of civil rights
  • Austin = the “existing law” in the 4th circuit, regardless of the majority rule, and P’s theory wasn’t warranted by it
  • Arguing for change:
    • 4th circuit not bound to follow “the majority rule,” but that rue could supply a persuasive reason for client’s CoA to revisit its own law
  • Whether losing violates Rule 11(b):
    • Not losing that violates Rule 11
      • If loss is because claims were legally frivolous (w/o basis in existing law or support by non-frivolous argument for its change) it’s a violation of Rule 11 because arguments were frivolous
Procedure for Rule 11 Sanctions
  • Rule 11 motion must be made separately from other motions
  • Must also be served on offender 21 days before it is filed with the court
    • This is to give offender time to reconsider and withdraw or correct the offending paper
  • Rule 11(c)(3) = requires a court acting of its own initiative to order offender “to show cause why conduct specifically described in order has not violated Rule 11(b)”
    • Sanctions:
      • Monetary or nonmonetary
        • Nonmonetary could be a apology or reprimand
    • Rule 11(c)(4) = sanction must be limited to what suffices to deter repetition of conduct or comparable conduct by others similarly situated
      • Court charged with imposing the least severe sanction that would deter repetition of the violation
      • Objective is deterrence, not compensation or punishment

559 – 572

Amending Pleadings Intro
  • CL prohibited any departure under the pleading as well as variances between the pleading and the proof at trial
  • FRCP guiding principle: procedure should be flexible enough to allow parties to litigate entire dispute between them, as long as any changes or enlargement of the lawsuit to achieve this objective doesn’t prejudice parties in their prep of their case
    • Rule 15 was created to provide the max opportunity for each claim to be decided on its merits rather than on procedural niceties
      • Variances disallowed under CL now allowed under Rule 15
  • Liberal amendment: a change of an original pleading to reflect additional facts, parties, claims, or defenses or to conform to evidence produced at trial
    • Typical scenario: amending party tries to file an amended pleading that supersedes the original pleading; if party needs court’s permission, a motion to leave to amend
  • Rule 15(a)
    • Addresses 2 types of amendments before trial:
      • Amendments allowed as a matter of course (can be filed w/o the court’s permission)
      • Amendments by leave of court (requires the court’s permission)
  • Rule 15(b): sets a stricter standard than 15(a) as applied to amendments during or after trial
  • Rule 15(c): addresses amendments attempted after SoL has run out and whether they can relate back (backdating to the date of timely original pleading that they amend)
Amending Without Leave of Court
  • Rule 15(a) authorizes amendment once as a matter of course (without leave) in 3 circumstances:
    1. a party may amend the original pleading once w/o leave of court w/i 21 days of serving that pleading
    2. if the original pleading is one to which a responsive pleading is required, a party may amend the original pleading w/i 21 days after the responsive pleading is served
    3. if a party files a motion:
      • Under Rule 12(b) to dismiss a complaint, counterclaim, crossclaim, or 3rd party complaint
      • Under Rule 12(e) for a more definite statement
      • Under Rule 12(f) to strike
        • Pleader may amend w/i 21 days after the motion is served
  • Pleadings where responsive pleading is required:
    • Rule 7(a) = pleadings that this falls under
      • D must file answer to a complaint
      • P must also serve an answer to a counterclaim
      • 3rd party D must serve an answer to a 3rd party complaint
  • Note: 21 day periods are not cumulative; no new 21 day period after lapse
  • Why 21 days:
    • Short enough amount of time that it is unlikely that the opposing party or the court has spent substantial resources in responding to the original pleading; also short enough time that the party would not be prejudiced in preparing to defend against the amended pleading
Amending Before Trial with Leave of Court
  • Factors judge must consider for amendments by leave of court:
    • Stage of litigation, reason for the amendment, viability of amended claim or defense, and reason for not including the new allegations in the original pleading
  • Factors in granting leave to amend:
    • In theory: “When justice so requires”
    • Practically:
      • Reason for amendment
      • Amending party’s diligence
      • Any prejudices that amendment may cause opposing party
      • Whether the amendment would be futile as a matter of law
      • (If any) amending party’s prior amendments
  • Common reasons for amendment:
    • Ex: Aquaslide had a recent discovery that the water slide was not one it had manufactured (Court held that A’s error was neither in bad faith nor unreasonable)
    • Discovery of new facts
    • Rare situations resulting in new legal theories
      • May be more appealing on a fuller view of the facts
      • Unfair to punish client for lawyer’s late discovery of a new legal theory
    • Tactical reasons may change
    • However, courts will still consider why the new matter was only recently discovered
      • Still, courts routinely give leave to amend to add additional claims or defenses, even when the reason is not discovery of new facts
  • Undue prejudice: consists of prejudice to preparing to defend (in the collecting and presenting of evidence) that flows from the lateness of the amendment
    • Also known as preparation prejudice
    • Courts place burden on party opposing the amendment to show preparation prejudice because they know best whether allowing the amendment would prejudice them
  • Futility (when an amendment would waste the time of the parties and the court)
    • Court not bound to grant leave to amend when amendment would be futile; must analyze a proposed amendment as if it were before the court on a motion to dismiss akin to 12(b)(6) motion
    • When not futile:
      • If amended pleading alleges sufficient facts to support the claim it will survive a motion to dismiss and is therefore not futile
  • Amendment after dismissal
    • Common reason for amendment of complaint: D has filed Rule 12(b)(6) motion to dismiss that is likely to succeed
      • Amendment intended to cure deficiency
      • If made w/i 21 days after service of motion, no leave required (if 1st amendment)
    • If court grants motion before the amendment:
      • If dismissal comes more than 21 days after the motion to dismiss the amending party cannot amend w/o leave
      • Many courts grant a motion to dismiss the complaint “with leave to amend” by a date certain if they believe P could cure the deficiency
  • Responding to an amended pleading
    • Once a pleading amended it is a new pleading
      • Opposing party has same right to respond to amended pleading as it did to the original pleading

580 – 603

Amending Claims or Defenses After the Limitations Period
  • SoL provides period w/i which a claim must be filed
    • Period is usually a term of years
      • Runs from the point claim accrued until the period is tolled
        • Accrued = came into existence
        • Tolled = end of period (I think)
      • Events causing the period to be tolled:
        • Filing of a complaint
        • Service of complaint during the service period
          • Service period = service occurring w/i some relatively short period of time after filing
  • Purpose of SoL:
    • Protect parties against loss of evidence and give them respite after a fixed period from the emotional distress and financial uncertainty of possible litigation
  • Common for complaint to be served on last day of limitations period
    • Sometimes from procrastination, client still deciding whether to sue, or lawyers waiting as a preventative measure
  • Amendments
    • Backdated to the date of the pleading that it amends (date of original complaint)
    • Amended pleading said to relate back to the date of the original pleading
      • Brings it to time set out in SoL (Note: SoL = affirmative defense)
Relation Back of Claims
  • Defending the malpractice claim:
    • Bonerb: by trying to amend the complaint in the pending lawsuit, can defeat affirmative defense of SoL if his amendment had been treated as if it had been part of the original complaint
  • Leave to amend:
    • When party must leave to amend:
      • Once window for amending w/o leave has closed
      • Party has already used it once
    • Court must determine whether to grant leave to amend under Rule 15(a)
      • Court considers variety of factors:
        • Whether in bad faith
        • Timing: would D have enough time to prepare defense
        • Number of times previously amended
        • Futility
    • Court has discretionary power to deny leave to amend w/o regard to SoL problem
    • If amendment doesn’t relate back then leave denied on grounds of futility
  • Relation back for transactionally related claims or defenses:
    • Rule 15(c)(1)(B) = even if applicable law doesn’t expressly allow relation back, allowed if new claim or defense arose out of the conduct, transaction, or occurrence set out in the original pleading
    • Bonerb Court asked “whether D was put on notice of the claim that the P later seeks to add”
      • Transactional nexus: theory of relation-back rule: original pleading gave the party notice of the conduct/transaction/occurrence for which he was being sued, so he will not be unfairly surprised by the addition of a new claim based on the same events
        • Supported by 5th Cir. (Barthel v. Stamm)
    • Reasons for motion to dismiss to be denied:
      • If on any legal theory, including ones not stated in the complaint, the complaint plausibly alleges facts that would entitle P to relief
    • Rule 18 = allows joinder of unrelated claims with no transactional requirement (Rule 15(c) = has a transactional requirement)
  • Why Bonerb’s malpractice negligence claim relates back:
    • Original negligence claim was whether the Foundation breached a duty of reasonable care in maintaining the basketball court
    • Malpractice claim is whether Bonerb’s counselors breached their duty of professional care
    • What Foundation should’ve seen coming:
      • A claim of liability for Bonerb’s injury from playing basketball
      • Foundation was on notice form complaint that Bonerb could be entitled to relief on any legal theory supported by the allegations of complaint describing the “transaction or occurrence” of the basketball game
      • Main factor is notice:
        • Notice of transaction ID-ed in complaint
        • Once D aware of transaction/occurrence, it must prepare to defend the transaction/occurrence, not just a particular legal theory of liability arising from it
  • Relation back under the SoL:
    • As long as P has sued someone before the limitations period runs, she may add other Ds later w/o regard to the limitations in 15(c)
      • 15(c)(1)(a) = such state law provisions will apply if state law governs the limitations period
Amending Parties After the Limitations Period
  • Rule 15(c)(1)(C): authorizes relation back of an amendment “changing the party against whom a claim is asserted” if several requirements are met
  • Theory behind relation back of amendments that change parties:
    • Notice: grounds for the relation back as long as claims/defenses arose from the same transaction as the original pleading in Bonerb
    • How amendment changing parties is different:
      • New party was not served with the original complaint w/i limitations period because they weren’t an original party
      • 15(c)(1)(c) recognizes that timely notice for a new party is more problematic than for a party who was actually sued and served w/i the limitations period
      • Requires some notice of the original action (and transaction giving rise) be received by the new party during the limitations period allowed for service of a timely filed complaint
        • Includes any extension of the service period permitted by the court under Rule 4(m)
          • 90 day period for service of original complaint and summons
      • Rule doesn’t say anything about “service” of notice to the new party; only requires that the party received such notice of the action that it will not be prejudiced in defending on the merits; and knew or should have known
  • Misnomers:
    • When a P misnames or misidentifies a party in the pleadings but correctly serves the party
      • Rule includes amendment to correct a misnomer or misdescription of a D (a proper legal claim should not be dismissed just because of what is a typo unless the typo somehow prejudiced the D)
  • “Deliberate” mistakes:
    • If a party, knowing of the new party, deliberately chose not to name it, then it is not a mistake w/i the meaning of the rule
      • Relation back will not relieve a party from consequences of its own tactical decision
  • Mistakes of ignorance:
    • Most courts held that lack of knowledge of ID of correct Ds is not a mistake w/i meaning of Rule 15(c) (P must exercise diligence in discovering ID of Ds)
      • Krupski: court only held that lower courts were incorrect in inferring that Krupski had made a deliberate choice not to sue, based on her knowledge of CC’s answer and the ID of CC as carrier on back of ticket
  • Matters of delay:
    • Rule 15(c) says nothing about the timing of P’s diligence in making such an amendment, if its relation-back requirements are satisfied then relation back is mandatory (delay still relevant under Rule 15(a))
Summary of Amended Pleading Principles
  • Pleading can be changed by filing an amended pleading; this replaces original
  • Rule 15:
    • Amending party doesn’t need leave of court to amend pleading once:
      • Amendment must be filed no more than 21 days after original pleading was served
        • Could also be 21 days after a responsive pleading or a 12(b), 12(e), or 12(f) motion is served (whichever is earlier)
      • Amendment w/o leave is effective on filing
    • All other cases: amending party must file motion for leave to amend and include proposed amendment
Client Reviews
★★★★★
I am so fortunate to have had Bill Powers on my case. Upon our first meeting, Bill insisted that through the emotions of anger, sadness, confusion, and betrayal that I remain resilient. He was available to answer questions with researched, logical, truthful answers throughout our two year stretch together. I went to any lengths for my case because he won my trust almost immediately... J.R.
★★★★★
My daughter had a second DUI and when it all seemed hopeless, Bill was able to get the charges dropped. This is a man who is extremely knowledgeable, yet still keeps his integrity which was impressive to me. He handles himself with dignity. If you hire him, you will have the best of the best, along with his expansive intellect and wisdom about the law. Lisa
★★★★★
Bill Powers’ staff has handled several traffic citations for me over the years, and they exceeded my expectations each and every time. Would highly recommend anyone faced with a traffic citation or court case contact his office and they will handle it from there. M.C.
★★★★★
Bill and his staff are flat out great. I (unfortunately) was a repeat customer after a string of tickets. These guys not only took care of the initial ticket for me, but went the extra mile and reduced my problems from 3 to just 1 (very minor one) on the same day I called back! I would recommend them to anyone. A.R.