Instructions
Below are some, but not all, of the hypos we did in class. Also included are some that we did not do in class.
“D” refers to the day on which an event occurs, so D1=Day 1, D8=Day 8 (seven days later), etc.
“MOC” means “matter of course.”
Basic Rule 15(a) amendment as a matter of course hypos
| Q. | Hypo |
| 1. |
D1: P files and serves complaint. D8: A week later, P wants to add a claim. Can P amend as MOC? |
| 2. |
D1: P serves complaint. D8: A week later, P amends to add a claim. D15: A week later, P wants to amend to add a third claim. Can P amend as MOC 10 days later to add the third claim? |
| 3. |
D1: P serves complaint. D22: D serves answer 21 days later. D32: Can P amend as MOC 10 days later? |
| 4. |
D1: P serves complaint. D22: D serves answer with a counterclaim 21 days later. D43: P serves an answer to D’s counterclaim 21 days further. D53: Can D amend the counterclaim 10 days further as a MOC? |
| 5. |
D1: P serves complaint. D22: D serves 12(b)(6) pre-answer motion to dismiss. D32: Can P amend the complaint as a MOC 10 days later to render moot D’s motion to dismiss? |
| 6. |
D1: P serves complaint. D22: D serves an answer that denies liability but without any counterclaims. D43: P does not serve a responsive pleading. D53: Can D amend as a MOC on day 53? |
Interplay of Rule 12(h)(1) waiver & Rule 15(a) amendment as a matter of course
| Q. | Hypo |
| 7. | Hypo 7(a):
D1: P serves complaint on D. D22: D serves answer asserting lack of PJ. Is the PJ defense waived?
Hypo 7(b): D28: D serves amended answer lack-of-venue defense. Is the lack-of-venue defense waived?
Hypo 7(c): D29: D wants to amend answer again to add defense of lack of SOP. Can D amend as MOC on day 29? Is the lack of SOP defense waived? |
| 8. | D1: P serves complaint on D.
D22: D serves 12(b)(2) motion to dismiss asserting lack of PJ. D30: Court quickly denies D’s motion to dismiss. D40: D serves an answer asserting lack-of-venue defense. Is D’s lack-of-venue defense waived? |
Examples of Rule 15(b) amendment during or after trial
| Q. | Hypo |
| 9. |
P sues D for negligence for car wreck. During trial, evidence is presented regarding D’s breach of contract for the sale of a stamp collection. Obviously, the stamp contract has no relevance to negligence claim. Comment: If D fails to object to P’s introduction of evidence regarding the stamp contract, that may constitute a de facto amendment to add a breach of contract claim. |
| 10. |
P sues D for negligence for a car wreck that destroyed both cars. In D’s answer, D alleges that P was contributorily negligent. During trial, D puts on evidence that P was negligent and that both cars were destroyed. D now argues that by failing to object to the evidence put forth at trial. Comment: P may have impliedly consented to an amendment to D’s answer adding a counterclaim for negligence. |
Posted Jan. 18, 2016