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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. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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