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Ray
Ray, Lawyer
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Experience:  29 years in civil, probate, real estate, elder law
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In Colorado United States District Court, how and when can

Resolved Question:

In Colorado United States District Court, how and when can I file an amended complaint? The defendant has already file their motion to dismiss and I need to respond by next week. In the amended complaint, do I get to adjust it to address specific issues in the motion to dismiss?
Submitted: 1 year ago.
Category: Legal
Expert:  Ray replied 1 year ago.

RayAnswers :

Thanks for your question and good afternoon.Rule 15 here covers this situation.

RayAnswers : Rule 15. Amended and Supplemental Pleadings

(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 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.


(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.


(b) Amendments During and After Trial.


(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.


(2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.


(c) Relation Back of Amendments.


(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:


(A) the law that provides the applicable statute of limitations allows relation back;


(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or


(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:


(i) received such notice of the action that it will not be prejudiced in defending on the merits; and


(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.


(2) Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney's designee, to the Attorney General of the United States, or to the officer or agency.


(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.


Notes


(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Pub. L. 102–198, §11(a), Dec. 9, 1991, 105 Stat. 1626; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)


Notes of Advisory Committee on Rules—1937


See generally for the present federal practice, [former] Equity Rules 19 (Amendments Generally), 28 (Amendment of Bill as of Course), 32 (Answer to Amended Bill), 34 (Supplemental Pleading), and 35 (Bills of Revivor and Supplemental Bills—Form); U.S.C., Title 28, §§399 [now 1653] (Amendments to show diverse citizenship) and [former] 777 (Defects of Form; amendments). See English Rules Under the Judicature Act (The Annual Practice, 1937) O. 28, r.r. 1–13; O. 20, r. 4; O. 24, r.r. 1–3.


Note to Subdivision (a). The right to serve an amended pleading once as of course is common. 4 Mont.Rev.Codes Ann. (1935) §9186; 1 Ore.Code Ann. (1930) §1–904; 1 S.C.Code (Michie, 1932) §493; English Rules Under the Judicature Act (The Annual Practice, 1937) O. 28, r. 2. Provision for amendment of pleading before trial, by leave of court, is in almost every code. If there is no statute the power of the court to grant leave is said to be inherent. Clark, Code Pleading, (1928) pp. 498, 509.


Note to Subdivision (b). Compare [former] Equity Rule 19 (Amendments Generally) and code provisions which allow an amendment “at any time in furtherance of justice,” (e. g., Ark.Civ.Code (Crawford, 1934) §155) and which allow an amendment of pleadings to conform to the evidence, where the adverse party has not been misled and prejudiced (e.g., N.M.Stat.Ann. (Courtright, 1929) §§105–601, 105–602).

RayAnswers :

So you can very well amend your complaint here under the rule above to try and resolve the deficiencies raised by the defendant.

RayAnswers :

Also for your reference are the local rules for Colorado Federal Court..

RayAnswers :

You may want to print these too and take them to court for reference in case anythign comes up.

RayAnswers :

Thanks again and good luck to you.

RayAnswers :

I appreciate the chance to help you today.

RayAnswers :

I hope that you will be so kind as to leave a positive rating. If you do have any additional questions about my answer please click the "Continue Conversation Link" so I can provide you with a fully satisfactory answer. Please be aware that any rating of 1 or 2 is reflected as a negative rating and I receive no credit for my answers.



 



 



 



This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

RayAnswers :

All the Federal Rules for You it guides you through the process.

RayAnswers :

Thanks again ..

Customer:

Thanks, XXXXX XXXXX a copy I just wasn't clear on the procedure since someone told me that if a responsive pleading had been filed (and that a motion to dismiss is considered a responsive pleading), then I had to get the defendants to agree or file a motion to amend. The way I read rule 15, I can do it without either of those two if I do it within 21 days of the time the motion to dismiss was filed, correct? Which basically means that I would have to do it within the same time frame as responding to the motion?? Also, would I still need to respond to the motion to dismiss within 21 days if I'm filing an amended complaint?

RayAnswers :

Yes you are correct you can amend without agreement within 21 days.

RayAnswers :

You may want to do both here respond and amend.Likely the other side will amend their motion here after you amend.This turns into a paper game.Lawyers are notorious trying to paper you to death and look for cracks or problems in the pleadings to mess with you.

RayAnswers :

Good luck here with all of this.I appreciate the chance to help.Have a great holiday.

Ray, Lawyer
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Experience: 29 years in civil, probate, real estate, elder law
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