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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 daughters' kids was removed from the home in March 2015, she has been in total compliance with the requirements of cps, she is going to court on the 4th of August. Cps had called the first team meeting last Monday to inform her that she was not in compliance, by not attending home based therapy, which is done normally with the children in the home, and now they are recommending her to have a psych evaluation, and they are also recommending that the children not be returned to the home. This is all bull hockey. In this so called team meeting which I did attend for the best interest of my child and grandbabies, I learned that no matter how much she does that cps is not trying to return the children and the concerns my daughter has is not important to cps, they only told her that she is to do as they say and not to resist or her rights will be terminated. I cant not believe the way Cps treats people knowing if they threaten you with loosing your kids you will do anything to get them back. My daughter is drug free she has never put her hands on any of her children she does not scream at her babies at all, but she is only allowed to see her kids 6 hours a week and someone has to supervise. Lets all tske a stand against the child protection services. THEY CAN NO LONGER TAKE CHILDREN FROM THERE PARENTS.

  2. Planned Parenthood has the government so trained . . .

  3. In a related story, an undercover video team released this footage of the government's search of the Planned Parenthood facilities. https://www.youtube.com/watch?v=ZXVN7QJ8m88

  4. Here is an excellent movie for those wanting some historical context, as well as encouragement to stand against dominant political forces and knaves who carry the staves of governance to enforce said dominance: http://www.copperheadthemovie.com/

  5. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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