File amended complaint

The Courts and the applicable law has long held that if the allegations of the amended claim relates back to the occurrence stated in the initial complaint, as it does here, the allegations will not be barred by the statute of limitations.

Iams Co. Ohio ; Boerkoel v. Hayes Mfg. Spencer County, Ky. If the Plaintiff seeks to include a claim for punitive damages or other damages, it is not a considered a new cause of action.

Payne v. Smith Corp. Ohio ; Cohen v. Bucey, Ohio St. Ohio ; Hall v. Hall v. In considering whether to allow an amendment, the Court may consider any undue delay, lack of notice, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendments. Coe , F. Davis , U. Note to Subdivision c. Compare Ala. See U. Note to Subdivision d. This is an adaptation of Equity Rule 34 Supplemental Pleading.

Rule 15 d is intended to give the court broad discretion in allowing a supplemental pleading. However, some cases, opposed by other cases and criticized by the commentators, have taken the rigid and formalistic view that where the original complaint fails to state a claim upon which relief can be granted, leave to serve a supplemental complaint must be denied. See Bonner v. Elizabeth Arden, Inc. Senderowitz , 65 F. Fleming , U. LaSalle Nat. Bank v. But see Camilla Cotton Oil Co. National Biscuit Co.

Thus plaintiffs have sometimes been needlessly remitted to the difficulties of commencing a new action even though events occurring after the commencement of the original action have made clear the right to relief.

Under the amendment the court has discretion to permit a supplemental pleading despite the fact that the original pleading is defective. As in other situations where a supplemental pleading is offered, the court is to determine in the light of the particular circumstances whether filing should be permitted, and if so, upon what terms.

The amendment does not attempt to deal with such questions as the relation of the statute of limitations to supplemental pleadings, the operation of the doctrine of laches, or the availability of other defenses.

All these questions are for decision in accordance with the principles applicable to supplemental pleadings generally.

Blau v. Lamb , F. The problem has arisen most acutely in certain actions by private parties against officers or agencies of the United States. Thus an individual denied social security benefits by the Secretary of Health, Education, and Welfare may secure review of the decision by bringing a civil action against that officer within sixty days. III, Discovering their mistakes, the claimants moved to amend their complaints to name the proper defendant; by this time the statutory sixty-day period had expired.

Federal Security Adm. United States , F. Department of HEW , F. See 29 Fed. United States Dept. HEW , F. As lower courts have continued to rely on the Davis and Mellon cases despite the contrary intent of the Rules, clarification of Rule 15 c is considered advisable. Relation back is intimately connected with the policy of the statute of limitations.

The policy of the statute limiting the time for suit against the Secretary of HEW would not have been offended by allowing relation back in the situations described above. For the government was put on notice of the claim within the stated period—in the particular instances, by means of the initial delivery of process to a responsible government official see Rule 4 d 4 and 5. In these circumstances, characterization of the amendment as a new proceeding is not responsive to the reality, but is merely question-begging; and to deny relation back is to defeat unjustly the claimant's opportunity to prove his case.

Much the same question arises in other types of actions against the government see Byse , supra, at 45 n. In actions between private parties, the problem of relation back of amendments changing defendants has generally been better handled by the courts, but incorrect criteria have sometimes been applied, leading sporadically to doubtful results.

Rule 15 c has been amplified to provide a general solution. Revised Rule 15 c goes on to provide specifically in the government cases that the first and second requirements are satisfied when the government has been notified in the manner there described see Rule 4 d 4 and 5.

As applied to the government cases, revised Rule 15 c further advances the objectives of the amendment of Rule 25 d substitution of public officers. The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15 c since the problem is generally easier.

Again the chief consideration of policy is that of the statute of limitations, and the attitude taken in revised Rule 15 c toward change of defendants extends by analogy to amendments changing plaintiffs. Also relevant is the amendment of Rule 17 a real party in interest.

To avoid forfeitures of just claims, revised Rule 17 a would provide that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed for correction of the defect in the manner there stated. The rule has been revised to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense.

Paragraph c 1. This provision is new. It is intended to make it clear that the rule does not apply to preclude any relation back that may be permitted under the applicable limitations law. As mentioned previously, the time limits discussed in this blog post refer to the rules in Nevada. If you live in a different state, you will need to check the rules that apply to your state.

Many states have similar rules, but the time limits for filings can vary from state to state. When you file your original complaint in a Nevada court, the defendant has 21 days to respond with either an answer or a motion to dismiss your complaint.

Sometimes a defendant will include a counterclaim against you in their answer. If you file an amended complaint within 21 days, the defendant has the balance of time left or 14 days, whichever is farther out, to respond to the amended complaint.

In most cases, a defense attorney will file their responsive pleading—either an answer or a motion to dismiss—close to the end of the original 21 days because it generally takes time for the defendant to retain an attorney after they receive service of your complaint, time for the attorney to review the complaint, and time to draft the pleading. The defendant must also file a response to your amended complaint.

If the defendant asked the court to dismiss your original complaint and the court did not dismiss it but asked you to amend it instead, the defendant must file a response, or the court could hold the defendant in default. Once you file an amended complaint, as far as the court is concerned, the original complaint no longer exists.

Thus, when you amend a complaint, you must be sure that all facts and points of law you intend to keep from the original complaint are also in the amended complaint. For example, if you file a complaint to collect damages in a car accident, then later find out the defendant was drunk and you want to amend the complaint to ask for punitive damages, you should make sure that everything you had in the original complaint is also in the amended complaint.

If you leave something out of the amended complaint, you cannot go back and add it unless the defendant agrees to or the court permits you to file a second amended complaint. It must be in the amended complaint or the original complaint if you never amended the original complaint.