The 2009 Amendment to Federal Rule 15(A)(1) - A Study in Ambiguity

Abstract:     
Since the adoption of the Federal Rules of Civil Procedure in 1937, Rule 15(a)(1) has allowed pleadings to be amended one time, as a matter of course, within a set period of time. Rule 15(a)(1) was amended on December 1, 2009 to change the time limits for these “as of course” amendments. Although this amendment was the product of a lengthy and thoughtful drafting process, the amended rule creates an ambiguous result when it is applied to pleadings that state a claim for relief.

Before the 2009 amendment to Rule 15(a)(1), it was clear that the time for filing an as of course amendment to the complaint, or any other pleading stating a claim, ended with the service of a responsive pleading. However, in practice, the time for filing a responsive pleading is frequently prolonged by one or more extensions of time, as well as by the filing of motions under Rule 12. Under the pre-amendment version of Rule 15(a)(1), these events did not impact the plaintiff’s time for amending her complaint, and the plaintiff could enjoy a lengthy period to refine her complaint outside the trial judge’s supervision. The 2009 amendment was intended to curtail this possibility by limiting the plaintiff’s as of course amendment to a period ending twenty-one days after the service of the earlier of a responsive pleading or motion under Rule 12(b), (e), or (f).

The amendment accomplishes this stated goal; however, it is drafted in an unfortunate manner that introduces ambiguity into the previously clear timing for these amendments. In its current form, the amended rule is capable of three alternative interpretations when applied to pleadings that state a claim. Although the amendment is still new, early discussions of the amended rule in judicial opinions and treatises reveal the unwitting application of these different alternatives and resulting confusion about the timing of amendments under this rule.

This article explores the ambiguity introduced by the 2009 amendment to Rule 15(a)(1). Part I provides a brief history of Rule 15(a) and examines the procedural shortfalls that led to the amendment. Part II takes a closer look at the 2009 amendment by parsing the ambiguous timing language, analyzing its three possible interpretations, and demonstrating the reality of the confusion by examining conflicting discussions of the amended rule in judicial decisions and treatises. Finally, Part III concludes that the best outcome is achieved by reading Rule 15(a)(1) to provide an uninterrupted period for as of course amendments that begins with the service of the complaint and ends twenty-one days after the service of the earlier of either the answer or a motion under Rule 12(b), (e), or (f).

Number of Pages in PDF File: 30

Keywords: Civil Procedure, Rules, Pleading, Pleading Amendments

JEL Classification: K40, K41, K49

Accepted Paper Series