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Amending a Complaint in Colorado Federal Court
During the progression of a lawsuit a plaintiff’s complaint may need to be amended for multiple different reasons. Examples of different reasons a complaint may need to be amended include, among other things, amending the complaint to include new defendants, to include new claims of relief, to include additional factual information, and to address alleged deficiencies the defendants may have raised in a motion to dismiss. Most commonly, a party will seek to amend its complaint for the latter reason, that is, to address alleged deficiencies in the complaint raised by a defendant. While amending a complaint occurs in both state courts and federal courts, this article specifically focuses on considerations and procedures for amending a complaint in Colorado federal court.
Procedural Process for Amending a Complaint in Colorado Federal Court
Generally speaking, amending a complaint in federal court is governed by Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 15(a). Specifically, the rule provides that:
(a) Amendments Before Trial.
(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 [Fed. R. Civ. P. 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.
Accordingly, amendments to a complaint during the course of litigation and before trial occur primarily in two circumstances:
– Amendment as a matter of right if made within 21 days after defendants have served a responsive pleading such as an answer or motion to dismiss; or
– In all other circumstances, the complaint may only be amended with leave of court or where all defendants consent in writing.
Notably, these requirements only apply to amendments made to a complaint before trial. There are other requirements for amending a complaint during or after trial which are addressed under Fed. R. Civ. P. 15(b). However, because the vast majority of amendments to a complaint are made before trial, the requirements for amending a complaint during or after trial are only rarely applicable.
If amendment of a complaint is sought before trial, the specific process for amending the complaint will vary depending on the local rules for the presiding court where the lawsuit was filed. In particular, for Colorado federal courts, the local rules for the District of Colorado require that either a notice or motion to amend the complaint be filed, depending on whether the amendment is one of right or not. Additionally, a copy of the amended complaint must be attached as an exhibit with any additions to the complaint indicated by underlining them and any deletions indicated with strikethrough.
Requesting Leave to Amend a Complaint from the Court
As indicated by Fed. R. Civ. P. 15(a), when a party desires to amend it complaint and the amendment does not qualify as one by right, the party must seek permission from the presiding court unless all opposing parties agree to it in writing. Where a party must seek permission from the presiding court, courts liberally permit amendment of the pleadings in the interest of preserving justice.
Along these lines, when a party must request permission to amend its complaint, it is within the discretion of the trial court whether or not to grant the amendment. The Supreme Court has indicated district courts may withhold leave to amend only for reasons such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of [the] amendment.” See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Accordingly, amendments to a complaint are relatively rarely denied.
For denial of an amendment based on undue delay or bad faith or dilatory motive, because a party may seek to amend its complaint at any time during the course of the lawsuit, the longer a party waits to amend its complaint the more like a court will deny it as untimely. That is, where there is no adequate explanation for delay in seeking to amend the complaint, untimeliness alone constitutes a sufficient reason to deny the amendment. To allow otherwise would permit parties to make its complaint a moving target by including or removing claims as the party pleases or to knowingly delay raising an issue on the eve of trial as a surprise tactic. See Wopsock v. Natchees, 279 Fed. Appx. 679, 689 (10th Cir. 2008) (denying a motion to amend the complaint where it was filed eight months after the prior complaint and four months after dispositive motions had been fully briefed by the defendants and the plaintiff).
Similarly, for denial of an amendment based on futility or failure to cure deficiencies allowed by previous amendment, if the proposed amendment would fail on its own or would be insufficient to correct any alleged deficiencies, then the amendment will be denied as futile. That is, a proposed amendment is futile if the complaint, as amended would still be subject to dismissal. See Sanders v. Anoatubby, 631 Fed.Appx. 618 (10th Cir. 2015) (denying an amendment where it could not overcome sovereign immunity); Heavy Petroleum Partners, LLC v. Atkins, 457 Fed.Appx. 735, 742 (10th Cir. 2012) (denying an amendment because the amended claims failed to properly plead a claim for relief).
What Happens After a Complaint is Amended
If a complaint is amended, either by right, through consent of the parties, or by consent of the court, then the amended complaint will completely supplant the prior complaint. That is, the amended complaint completely replaces the prior complaint such that the prior complaint no longer has any operative effect. Accordingly, when amending a complaint, the party doing so needs to ensure that the amended complaint is entirely self-contained and includes all necessary information; the amended complaint is not simply an addition onto the prior complaint. See Negaresh v. Casino, Civil Action No. 15-cv-02366-GPG (D. Colo. Oct. 30, 2015)
Further, because the amended complaint completely supplants the prior one, a responsive pleading such as an answer or motion to dismiss will need to be filed by the opposing party in response to the new complaint. In essence, filing an amended complaint restarts the procedural process such that any prior responsive pleadings, similar to any prior complaints, will have no operational effect; thus, a new responsive pleading must be filed.
Importantly, however, the timeline for responding to an amended complaint is shorter than responding to the original complaint. A response to an amended complaint is due within 14 days as opposed to the traditional time frame of 21 days or longer when responding to an original complaint. See Fed. R. Civ. P. 15(a).
Lastly, when the complaint is amended to include a new claim, there may issues as to whether or not the amendment relates back to the original filing date. This can have important repercussions with respect to the application of any relevant statutes of limitations since, if any statutes of limitations have run during the course of the lawsuit, a claim added by amendment that does not relate back to the original filing date will be barred.
Along these lines, the Federal Rules of Civil Procedure provide that an amendment will relate back to the date of the original pleading where:
(1) The law that provides the applicable statute of limitations allows relations back;
(2) The amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out in the original pleadings; or
(3) The amendment changes a party against whom a claim is asserted and that party had notice of the action such that it will not be prejudiced in defending on the merits and that party knew or should have known the action would have been brought against it but for a mistake in properly naming the party.
See Fed. R. Civ. P. 15(c). Accordingly, where the amendment meets one of these requirements, it will relate back to the original pleading such that it will be considered to have been plead at the time the original pleading was filed. In such circumstances, as long as the original pleading was filed before any applicable statutes of limitations ran, any new claims will be allowed to stand as being plead within the required time frame.
© 2017 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.