69 The Alabama Lawyer 265 (2008). A Pleading Delayed May Mean Justice Denied: Amended Pleading Practice under Alabama Rule of Civil Procedure 15(a).

• Author: BY CHRISTIAN HINES

The Alabama Lawyer

2008.

69 The Alabama Lawyer 265 (2008).

A Pleading Delayed May Mean Justice Denied: Amended Pleading Practice under Alabama Rule of Civil Procedure 15(a)

A Pleading Delayed May Mean Justice Denied: Amended Pleading Practice under Alabama Rule of Civil Procedure 15(a)BY CHRISTIAN HINES The king of deadlines, or perhaps the grim reaper of plaintiff's attorney nightmares, is the statute of limitations. Although not as draconian as the dismissal of an action in its entirety, the inability to pursue a claim or defense can have an equally devastating effect on the outcome of a case. Moreover, the preclusion of a particular theory is a fear shared by both sides of the bar, in that restrictions on amendments shadow both plaintiff and defendant alike.

Alabama Rule of Civil Procedure 15 governs a party's ability to amend pleadings during the course of litigation. Justice Champ Lyons, Jr. has described the rationale behind Rule 15:

Pleadings are a means, not an end, and the action should be resolved on its merits, not upon technicalities. Without the Rule's permissive approach to the right to amend, the allegiance to substance over form which permeates these rules would not be attainable.

Alabama Practice, p. 308 (1st Ed. 1973), quoted with approval in McElrath v. Consolidated Piping Supply, 351 So. 2d 560, 564 (Ala. 1977).

Much has been written on Rule 15(c), which deals with the relation back of amendments. Obviously, the ability of an amendment to add a party to avoid the statute of limitations, as referenced above, can have dire consequences for a plaintiff. This article, instead, will focus on the general ability of either party to amend pleadings under Rule 15(a), without reference to relation back. As demonstrated below, the availability of an amended pleading can have a significant impact on the success, or failure, of a claim or defense.

The Liberal Construction of Rule 15(a)

The Alabama Supreme Court instructs that "'Rule 15(a) calls for a liberality in allowing amendments, and the rules on amendments themselves are liberally construed by the courts, in order to ensure, so far as possible, that cases are decided on their merits.'" McElrath, 351 So. 2d at 564, quoting 1 A. Barron and Holtzoff, Federal Practice and Procedure, § 442 comments. Stated another way, "[t]he purpose of this rule is to allow maximum opportunity for the parties to state each claim and have those claims decided on the merits of the issues." Ex parte Reynolds, 436 So. 2d 873, 874 (Ala. 1983). In short, "Rule 15 must be liberally construed by the trial judges." In Re Stead, 310 So. 2d 469, 471; 294 Ala. 3, 6 (Ala. 1975).

The 1992 Amendment

Possibly due to this mandate for a liberal construction of Rule 15, the Alabama Supreme Court has admitted that "the extent of the trial court's discretion in permitting amendments has not been precisely delineated and has been, at times, unclear." Ex parte Liberty National, 858 So. 2d 950, 958 (Ala. 2003). In 1992, the Alabama Rules Committee made an effort at delineation, drafting an amendment to Rule 15(a). This amendment placed limitations on, and a stricter scrutiny of, amendments filed closer to trial. The prior version of Rule 15, on the other hand, had permitted amendments to pleadings without relation to the proximity of trial.

The 1992 amendment, which remains unchanged today, reads as follows:

RULE 15. AMENDED AND SUPPLEMENTAL PLEADINGS (a) Amendments. Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court's own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause. A party shall plead in response to an amended pleading within the time remaining for a response to the original pleading or within ten (10) days after service of the amended pleading, whichever period may be longer, unless the court orders otherwise.

The change in the rule was deemed "necessary to accommodate the constraints imposed by time standards for the disposition of litigation." Committee Commentsto August 1, 1992 Amendment to Rule 15(a). Additionally, since the Committee was not further restraining the ability to amend pleadings based upon the date of a trial, it was cognizant of Rule 40. Specifically, "Rule 40 requires a sixty- (60-) day notice of a trial setting. Thus, [given the 42-day cut-off in the new rule,] a party has an eighteen- (18-) day period within which to file an amendment after the notice of first setting for trial without the need for obtaining leave of court." Id. In sum, the 1992 amendment attempted to strike a balance between the need for liberal amendments and the potential prejudice which could arise from an amended pleading filed on the eve of trial.

The Committee further predicted: "Because an amendment within the forty-two- (42-) day period will frequently force a continuance of the trial of the case, the committee anticipates that such an amendment will not be allowed as a matter of course. Consequently, the rule requires a showing of good cause for any amendment within this period." Committee Comments to August 1, 1992 Amendment to Rule 15(a). For Alabama trial and appellate courts, consequently, the...