Amending Pleadings

Question 1

What is a “pleading?”

Answer 1

the complaint or an answer

for purposes of these rules. used more liberally in court

Question 2

How does a party amend a pleading in VA versus federal court?

Answer 2

VA: a party must first file a motion seeking leave to amend and include the amended pleading.
federal court: some opportunities to amend “as of right”

Question 3

What is the standard for permitting leave to amend? What factors are considered? (3)

Answer 3

• Leave to amend should be liberally granted in futherance of the ends of justice
  1. Movant’s bad faith–unreasonably delayed in seeking amendment (must be prompt)
  2. prejudice to non-movant
  3. Futility–inquiry into the merits of the proposed amendment

Question 4

SOL and Amending Claims

If a new claim is added, and it is past the SOL for that claim, can it be added?

Answer 4

Yes, it will be deemed to be filed at the same time as the orginigal suit so long as it arises form the same t/o as one of the claims in the original suit.

the amended claim “relates back: to one of the original claims.

Question 5

SOL and Adding a New D

When can a new party be added after the SOL has expired? three factors

Answer 5

1. the claim agains the new party must relate back to one of the OG claims (i.e. arise out of the same t/o underlying an OG claim; and
2. the new party must have had actual notice of the suit within the time in which the OG D had to be served with process (i.e., SOL + 1 year for service of process); and
3. the new D expected to be sued but was not sued because of a mistaken identity by the plaintiff

Question 6

SOL and Adding a New D

Distinguish mistaken identity from a misnomer

Answer 6

Misnomer–mistake in the name not the identification of a party. the P need only correct the pleading once she realizes her misake. NO SOL problem