Amending as a Matter of Course

Amending Pleadings Before Trial

Amending as a Matter of Course

A party who wants to change a pleading files an amended pleading, which replaces the original.¹ Rule 15(a) sorts pretrial amendments into two tracks: amendments as a matter of course, which need no permission from the court, and amendments by leave of court, which do.² This unit covers the first track. Rule 15(a)(1) gives each pleading one free amendment: a party “may amend its pleading once as a matter of course” no later than the deadlines the rule goes on to list.³

To amend “as a matter of course” is to amend as of right. The pleader files the revised pleading, and it takes effect on filing, with no motion, no consent, and no ruling.⁴ Two limits bound that right. The word “once” limits it by number, and the rule’s deadlines limit it by time.

The Federal Rules reject a restrictive approach to changing pleadings as too formalistic and inefficient. Their guiding principle is that procedure should be flexible enough for the parties to litigate the entire dispute between them, so long as enlarging the lawsuit does not prejudice the opponent in preparing its case. Rule 15 was written to give each claim the maximum opportunity to be decided on its merits rather than on procedural niceties.⁵

The rule lets a pleader act alone only at the front of the case, where an amendment costs the opponent little. Later changes need the opponent’s written consent or the court’s leave.⁶ The subsections below follow the order in which a pleader meets the rule: the window that runs from the pleader’s own service, the window that opens when the opponent responds, and the limit of one amendment.

Within 21 Days of Serving

Rule 15(a)(1)(A) supplies the first window: a party may amend once as a matter of course within 21 days after serving its pleading.⁷ The clock starts when the pleader serves the pleading it wants to change, so the pleader controls the start date and can count from it with certainty. The opponent’s answer, motion, or silence does not move it. Because the rule speaks of a party’s “pleading” generally, the window attaches to any pleading, whether a plaintiff’s complaint or a defendant’s answer.

The brevity of the window is what makes permission unnecessary. Twenty-one days after serving a pleading is so short a period that neither the opponent nor the court is likely to have spent substantial resources on the original, or that the opponent would be prejudiced in preparing to defend against the amended version.⁸ That will not be true in every case, since an opponent can work hard in three weeks. The rule accepts the occasional exception in exchange for a bright line. Inside the line, the pleader needs no one’s permission. Outside it, the court supervises, as the later sections show.

Counting is mechanical once the starting event is fixed. Under the usual convention for counting days, the day of service is not counted, so the day after service is day one and day twenty-one is the last day to file.

Inside the window, the pleader may do more than patch a single defect. The pleader may add claims, drop claims, change factual allegations, or file a completely revised pleading, and no motion is required, because the very point of an amendment “as a matter of course” is that the pleader has a right to make it.⁹

The window belongs to defendants as much as to plaintiffs. Kevorkean’s amended answer worked because an answer is a pleading, and the rule reaches any pleading. What sets the answer apart is what follows it. Ordinarily no further pleading is required in response to an answer, and in the typical two-party case the complaint and the answer are the only pleadings filed.¹⁰ A court may order a reply, but that is extremely rare, and when no responsive pleading is required the allegations of the answer are deemed denied or avoided.¹¹ Rule 15(a)(1)(B) opens its second window only for a pleading “to which a responsive pleading is required,” so an answer with no counterclaim has no second window.¹² For that answer, the 21 days after serving it are the only as-of-course period there is.

A counterclaim changes the analysis. A plaintiff must serve an answer to a counterclaim.¹³ A defendant whose answer includes a counterclaim has therefore served a pleading that draws a responsive pleading, so the window in Rule 15(a)(1)(B) may reach that answer too.¹⁴ The defendant keeps the 21 days after serving the answer in any event.

Outside these periods, the rule’s residual track governs: a party may amend only with the opposing party’s written consent or the court’s leave, and the court should freely give leave when justice so requires.¹⁵

After a Response or Rule 12 Motion

Rule 15(a)(1)(B) gives the pleader a second route to a free amendment, and it opens only after the opponent acts. If the pleading is one to which a responsive pleading is required, the pleader may amend once as a matter of course within 21 days after service of a responsive pleading or 21 days after service of a Rule 12(b), (e), or (f) motion, “whichever is earlier.”¹⁷ A responsive pleading answers an earlier pleading, so a defendant’s answer is the responsive pleading to a complaint. This window runs from the opponent’s filing rather than from the pleader’s own service, so it can still be open after the 21 days under Rule 15(a)(1)(A) have expired. The plaintiff who serves a complaint and waits to see how the defendant reacts is its typical user.

The opening condition decides who may use the window. A defendant must answer a complaint, a plaintiff must answer a counterclaim, a co-defendant must answer a crossclaim, and a third-party defendant must answer a third-party complaint.¹⁸ The complaint is the ordinary case, and the plaintiff is the ordinary user. An answer with no counterclaim draws no response, which is why that defendant has only the 21 days after serving it. A defendant whose answer includes a counterclaim stands differently, because the plaintiff must respond to the counterclaim and the window can then reach the answer.

The window exists because a response tells the pleader what the opponent objects to, and a short amendment can often meet the objection. Suppose a plaintiff’s claim depends on her having been in the zone of danger, and she forgot to allege it. The defendant moves to dismiss for failure to state a claim. If she was in fact in the zone, she can fix the defect at once by filing an amended complaint that adds the allegation. The same filing may add claims, drop some, or revise other allegations the motion never mentioned.¹⁹ Such an amendment may avoid the need to decide the motion or reduce the number of issues to be decided, and because the opponent has only just responded, little has been spent that the amendment would waste.²⁰

The rule names three Rule 12 motions that open the window, and each attacks the pleading itself:²¹

• A Rule 12(b) motion to dismiss.
• A Rule 12(e) motion for a more definite statement.
• A Rule 12(f) motion to strike.

By its terms the rule names only these three, so a different kind of motion does not start the 21 days on its own.

Counting from the answer whenever one exists produces the wrong deadline, because the rule measures from whichever listed event comes first. If a defendant serves a Rule 12 motion and later an answer, the window began with the motion, and the answer opens nothing new. Measuring from the earlier event also gives the window a fixed end, so later filings by the defendant cannot stretch it.

Because the rule allows amendment no later than the deadline in (A) or the deadline in (B), the pleader may amend until the later of the two, provided the one free amendment remains unused. Step four previews the next subsection, where the word “once” limits the pleader to a single free amendment however many windows are open.

Only One Amendment

The word “once” caps the free amendment at one per pleading, and the cap governs how the two windows relate. The 21 days from the pleader’s own service and the 21 days from the opponent’s responsive pleading or Rule 12 motion are alternative times for making the single amendment.²⁴ Neither window carries an amendment of its own. A pleader who amends in the first window has spent the free amendment, and the opening of the second window restores nothing, because the periods are not cumulative and amendment without leave is possible only once.²⁵

The most tempting way to stack the windows is to treat an opponent’s Rule 12 motion as the start of a fresh 21 days after the pleader has already amended. The commentary quoted in the treatise closes that door: if an amended pleading is served after one of the designated motions is served, “there is no new 21-day period.”²⁶ A motion opens a window for the pleader’s one amendment if the pleader still holds it. It opens nothing for a pleader who has used it.

The limit follows from the reason the free amendment exists. A short window early in a case costs the opponent little, because neither the court nor the opponent has yet spent substantial resources on the original pleading.²⁷ That low cost attaches to one amendment. If each window carried its own amendment, a pleader could revise the pleading after every response, and the opponent would be answering a pleading that kept changing. Ending the free amendment after one use hands later changes to the court, which can weigh timing and prejudice.

In Johnson v. Trueblood, the plaintiffs had already amended their complaint as a matter of course to add claims against Harry Salwen as a Penn Eastern director. Their later motion to amend, to include the loss of the shopping center, therefore rested within the discretion of the court, and the plaintiffs conceded that they could prevail only by showing an abuse of that discretion.²⁸ A plaintiff in the opposite position, who has never amended and files a single amended complaint within 21 days after a defendant serves a Rule 12(b)(6) motion, is using the free amendment for the first time. That filing is effective when made.²⁹

The court in Bailey v. B. Braun Medical, Inc. stated the consequence plainly: after the plaintiff has amended once, the plaintiff may amend only with leave of court or the opposing party’s written consent, but “leave shall be freely given when justice so requires.”³⁰ Rule 15(a)(2) is the source of that standard and governs every change after the free amendment.³¹ One court of appeals has summarized how the pieces fit together: the plaintiff may amend once as of right, the court should then freely give leave, and Rule 15 ordinarily requires that leave be granted at least once when a pleading has a potentially curable problem. The court may still deny leave for undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies, undue prejudice to the opponent, or futility.³² The next sections take up written consent, the motion for leave, and those grounds for denial.