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.•


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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.