a.

Amendments to Pleadings – Federal

i. Before trial, a party may amend its pleading as a matter of course (1) once within 21 days of service, if no responsive pleading is required, or (2) once within 21 days
after service of the responsive pleading or pre-answer motion, whichever is ealier. Otherwise, the opposing party’s written consent or leave of court is required.
1. Matter of Course
2. OP Written Consent
3. Leave of Court
a. Court must freely grant leave to amend when justice requires. The court considers:
i. Justice Requires [Make up argument];
ii. Undue Prejudice [Focus on OP];
iii. Undue Delay [Focus on Movant];
iv. Futility
1. An amendment to a pleading is “futile” if the amended pleading will automatically be subject to a 12(b)Motion
to Dismiss, if granted.
a. Rule 12(b) Motion to Dismiss
i. Prior to filing an answer, a defendant may file a motion raising [Lack of SMJ,
Lack of PJ, Improper Venue, Insufficient Process, Insufficient Service of Process,
Failure to State a Claim Upon Which Relief Can be Granted (SOL i), Failure to
Join a Necessary or Indispensable Party Under Rule 19] to seek dismissal of a
claim.
1. Relation Back Doctrine
a. [Apply]
i
Pulled from Gilbert’s Outline, explaining why a party may raise an “SOL” defense in a 12(b)(6) motion to dismiss, even though affirmative defendants are only permitted
in the Answer.