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Federal Bar Update: New FRCP 15(a) is a little-noticed rules amendment

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As federal practitioners well know by now, sweeping changes to the federal rules took effect Dec. 1, with most of those changes incorporating the “days are days” time computation amendments. Those amendments seem to be settling in among the bar with few issues.

In the midst of that group of rule changes, one rule of practice saw significant change but received little attention (including from the undersigned), probably because it was likewise part of the “days are days” amendments. Specifically, Fed. R. Civ. P. 15(a) – dealing with amendments of pleadings – was significantly rewritten.

The changes affect when a party who has filed a pleading may amend that pleading, for instance, if a plaintiff has filed a complaint when they can amend it. Under prior Rule 15(a), a responsive pleading (e.g., an answer to a complaint) cut off the right to amend without party permission or leave of court. Old Rule 15(a) provided: “A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served. …” Under the old rule, if plaintiff filed a complaint and defendant answered, plaintiff could not amend without agreement or leave of court

This has changed significantly. Amended Rule 15(a) now provides:

“(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.”

The result is that parties filing complaints now have 21 days to amend their complaint after service of the defendant’s answer.

The official comments to this amended rule explain the change: “The … amendment to Rule 15(a) limits the time when a party may amend a pleading to which a responsive pleading is required once as a matter of course. The proposal eliminates the distinction drawn by present Rule 15(a), under which a responsive pleading immediately cuts off the right to amend, while a Rule 12 motion does not cut off the right and prolongs the time to amend a pleading until the motion is resolved. Significant problems can arise when a party files an amended pleading as a matter of right on the eve of a court’s ruling on a dispositive Rule 12 motion. Under the proposed amendment, a party may file an amended pleading without leave of court within 21 days after service of a responsive pleading or 21 days after service of a Rule 12 motion, whichever is earlier. After that, a party may file an amended pleading only with leave of court.”

With this amendment, counsel in federal litigation now have a new deadline to calendar. Specifically, after filing a pleading to which a responsive pleading is required, counsel should watch for the responsive pleading and then calendar 21 days later as their deadline to freely amend their own pleading.•

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John Maley is a partner with Barnes & Thornburg, where he practices nationally in litigation, employment, and appellate matters. The opinions in this column are those of the author.

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  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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