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How-To: Write a Motion for Leave to Amend a Pleading

Background: You have recently been availed of important legal material before trial
Problem: That important stuff is missing from your civil complaint
Solution: You ask the Court for permission to amend your pleading

I. Definitions

"permission obtained from a court to take some action that, without such permission, would not be allowable. This permission in some instances may come before or after the expiration of the period in which the action was to be taken. For instance, a trustee may need "leave of court" in order to spend trust corpus for the support of the trust beneficiary; an attorney will need "leave of court" in order to file papers after the time allowed for filing the papers has elapsed." Pleading
statements, in logical and legal form, of the facts that constitute plaintiff's cause of action and defendant's ground of defense. Pleadings are other allegations by the parties affirming or denying certain matters of fact, or other statements in support or derogation of certain principles of law, which are intended to describe to the court or jury the real matter in dispute.

AMENDED PLEADINGS: pleadings submitted to the court later in time than the original pleadings and which correct the original pleadings or arguments therein, such as by the addition of a cause of action or a defense

II. Legal Citations

Rule 15(a) Fed. R. Civ. P. | Amended and Supplemental Pleadings
(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.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

Rule 16(b)(4) Fed. R. Civ. P. | Pretrial Conferences; Scheduling; Management
(4) Modifying a Schedule. A schedule may be modified only for good cause and with the judge's consent.

Rule 1.190 Fla. R. Civ. P. | Amended and Supplemental Pleadings
(a) Amendments. A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.

Rule 1.200 Fla. R. Civ. P. | Pretrial Procedure
(b) Pretrial Conference. After the action is at issue the court itself may or shall on the timely motion of any party require the parties to appear for a conference to consider and determine:

(2) the necessity or desirability of amendments to the pleadings;
Rule 60Y-5.001(7) FAC | Complaints
(7) Amendments.
(a) A complaint may be reasonably and fairly amended within 60 days after filing and, thereafter, for good cause with the consent of the Executive Director.
(b) A complaint may be amended to cure technical defects, or omissions, including verification, or to clarify and amplify allegations made therein. Such amendments and amendments which describe an additional unlawful employment practice related to or growing out of the subject matter of the original complaint will relate back to the date the complaint was first received.

Rule 28-106.202 FAC | Amendment of Petitions of Requests for hearing
A petition or request for hearing may be amended prior to the designation of the presiding officer by filing and serving an amended petition or amended request for hearing in the manner prescribed for filing and serving an original petition or request for hearing. Thereafter the petitioner may amend the petition or request for hearing only upon order of the presiding officer.

Source: Barron's Dictionary of Legal Terms, Steven H. Gifis, 5th Edition; © 2016

III. Samples

# PDF Comments
1TBD case. Pro Se Filing. USFLMD. Equitable Tolling. EEOC Right-to-Sue Letter.
2USNYWD | 2007 | Attorney Filing | Great format | Protracted Embezzlement
3USNYWD | 2007 | Attorney Filing | Defeating "futility" defense
4USNYWD | 2007 | Pro Se Filing | Change Defendant
5USNYWD | 2007 | Attorney Filing | Great format | Add a claim, add a defendant
6USNYWD | 2007 | Attorney Filing | Nice flow | Add more claims (new revelations)
7USNYWD | 2007 | Attorney Filing | Plaintiff died
8USNYWD | 2007 | Pro Se Filing | New Charges
9USNYWD | 2007 | Attorney Filing | Ton of Citations
10USNYWD | 2007 | Attorney Filing | Response | "Good Cause" Standard
11USNYWD | 2007 | Attorney Filing | Great Setup | New Evidence
12USNYWD | 2007 | Attorney Filing | Patents | Add a Cause of Action (see 63rd Page)

IV. Templates

# Word Comments
1USFLMD Version | Replace all placeholder tags (eg "[plfName]" becomes "John Doe").

V. Quick Commentary

  • Good News: If discovery has yet to be exchanged then that provides a good reason to be granted leave to amend
  • Good News: If the amendment deadline has yet to pass then that provides a good reason to be granted leave to amend
  • Good News: If this will be your final amendment then that provides a good reason to be granted leave to amend
  • Better News: Leaves to Amend are "freely given"
  • Standard of Review: Foman Factors (Foman v Davis, 371 US 178 (1962))
  • When Discretion Begins: Judges can only exercise discretion after:
    1. the defendant files an answer; or
    2. the plaintiff exercises his/her initial right to amend (ie, Rule 15(a)(1) Fed. R. Civ. P.; or Rule 1.900(a) Fla. R. Civ. P.)
    "For the reasons we explain below, we hold that a plaintiff has the absolute right to amend a complaint once as a matter of course before a responsive pleading is served, and a trial court has no discretion to deny such an amendment."

    "...A judge's discretion to deny amendment of a complaint arises only after the defendant files an answer or if the plaintiff already has exercised the right to amend once. "

    - see Boca Burger v. Forum, 912 So.2d 561 (Fla. 2005)

  • No Impact from MTDs Motions to Dismiss do not impact your right to make a first amendment: "Moreover, a motion to dismiss is not a "responsive pleading" because it is not a "pleading" under the rules. See Fla.R.Civ.P. 1.100(a)...Therefore, the filing of a motion to dismiss does not terminate a plaintiff's absolute right to amend the complaint "once as a matter of course.""

    - see Boca Burger v. Forum, 912 So.2d 561 (Fla. 2005)

  • Important Note: At USFLMD, do not submit your Amended Complaint within your Motion for Leave!
  • Note: As always, confer with the opposing party beforehand.
  • Please download as many sample documents as you'd like
    • Contact TBD for more free samples
  • Feel free to use the templates (see Part III - above) to help draft your 'Motion for Leave to Reply'
  • Save the final version as a PDF file.
  • File the final version in court

VII. Bibliography

VII. Conclusion

If you need to add important information to your civil complaint then you can ask for permission. This permission takes the form of a 'Motion for Leave to Amend Complaint'. There are several reasons to amend (such as new evidence, new cause of action, etc.). So, make sure to tailor your request to your specific set of circumstances.

With the use of the template (as well as the samples above), you can more easily move the Court for Leave to Amend a Pleading.

Congratulations! You're now booked up on how to write a Motion for Leave to Amend a Complaint!

Please get the justice you deserve.


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