§15.6 Analysis

• Jurisdiction: Washington

§15.6ANALYSIS

This section analyzes application of CR 15 and FED. R. CIV. P. 15.

(1)Policies underlying CR 15

CR 15 reflects the basic underlying goal of the civil rules, which is "to secure the just, speedy, and inexpensive determination of every action." CR 1. Toward that end, CR 15 promotes a number of policies. First, the rule is designed to put the real issues before the court. In re Pawling, 101 Wn.2d 392, 395, 679 P.2d 916 (1984). No purpose would be served by a hypertechnical application of the rule that would have no effect other than to deny a party his or her day in court. Culpepper v. Snohomish Cnty. Dep't of Planning & Cmty. Dev., 59 Wn.App. 166,176, 796 P.2d 1285 (1990), review denied, 116 Wn.2d 1008 (1991). Second, CR 15 facilitates the notice requirement of the civil rules, which requires "adequate notice" of the claims or defenses asserted by an opposing party. Herron v. Tribune Publ'g Co., 108 Wn.2d 162, 165, 168, 736P.2d249 (1987); 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure §1471 (3d ed. 2010). Third, the rule helps to avoid a multiplicity of lawsuits and the necessity of a new trial, which often follows a deviation from the pleadings. Harding v. Will, 81 Wn.2d 132, 136, 500P.2d91 (1972). Fourth, the rule facilitates the amendment of pleadings except when prejudice to the opposing party would result. Caruso v. Local Union No. 690 oflnt'l Bhd. of Teamsters, 100 Wn.2d 343, 349, 670P.2d240 (1983).

Each determination regarding an amendment under CR 15 involves balancing two basic concerns: (1) avoiding hypertechnical and burdensome impediments to the litigation process, while (2) ensuring that the opposing party has sufficient notice and is not unduly prejudiced. CR 15 is designed to give the court flexibility to realign issues and parties and to adjust the pleadings to reflect the case as understood and as actually litigated by the parties. As such, the rule helps to avoid "the tyranny of formalism" that characterized former practice. Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 766, 733 P.2d 530 (1987).

(2)Amendments under CR 15(a)

This section will discuss motions to amend pleadings pursuant to CR 15(a) and the circumstances under which such motions are granted and denied. Under that rule, a party may amend as a matter of course for a limited time, or may amend with the court's permission.

(a) Amendment as a matter of course

The first sentence of CR 15(a) provides that, at any time before a responsive pleading is served, a party may amend a pleading once "as a matter of course," that is, without the permission of the court or the consent of the other parties to the action. E.g., Violante v. White, 26 Wn.App. 391, 392, 612 P.2d 828, review denied, 94 Wn.2d 1011 (1980) (amendment to add new claims for relief). If no responsive pleading is permitted and the action has not been placed on the trial calendar, a party may amend at any time within 20 days of service.

As noted in §15.5(2), a motion (e.g., a motion to dismiss or for summary judgment) made before a responsive pleading is filed is not considered a responsive pleading for purposes of the rule. Such a motion does not terminate a party's ability to amend the pleading as of right. See 3AKarl B. Tegland, Washington Practice: Rules Practice, CR 15 (6th ed. 2006) (and federal cases cited therein); 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure §1483 (3d ed. 2010 & Supp. 2013); cf. FED. R. CIV. P. 15(a) (21-day limit to amend as a matter of right after service of a motion under FED. R. CIV. P. 12(b), (e), or (f)). See also §15.4, above.

The seemingly unqualified right of a party to amend as a matter of course at any time before a responsive pleading is served was limited by Division I in Wolfe v. Legg, 60 Wn.App. 245, 803P.2d804 (1991). In that case the defendant had asserted a counterclaim in his original pleading, but the plaintiff had not served a responsive pleading. Two weeks before trial, the defendant moved to amend his answer to add an additional counterclaim. The motion was denied on the grounds it was untimely. The Court of Appeals affirmed, citing the provision in CR 15(a) that disallows amendments as a matter of course once the action has been set for trial—even though that provision expressly applies only to pleadings as to which no responsive pleading is permitted. The court interpreted the rule to mean that even in cases as to which a responsive pleading is permitted, amendments will not be allowed as a matter of course if the action has been place on the trial calendar:

In order to prevent the potential of prejudice arising from the unbridled right to file amendments as a matter of course at any time, we find that the proper interpretation to be given to CR 15(a) would be that, once a matter is set for trial, permission of the trial court is required for the filing of an amended pleading, regardless of whether a responsive pleading has been filed.

Wolfe, 60 Wn.App. at 251.

Note that the 2009 amendment to the federal rule

omits the provision that cuts off the right [to amend] if the action is on the trial calendar. Rule 40 no longer refers to a trial calendar, and many courts have abandoned formal trial calendars. It is more effective to rely on scheduling orders or other pretrial directions to establish time limits for amendment in the few situations that otherwise might allow one amendment as a matter of course at a time that would disrupt trial preparations. Leave to amend still can be sought under Rule 15(a)(2), or at and after trial under Rule 15(b).

FED. R. CIV. P. 15, Committee Notes on Rules—2009 Amendment.

Comment: It is difficult to quarrel with the court's conclusion in Wolfe, even if it is contrary to the express language of the rule itself. It is now unclear, however, how local rules that set a trial date shortly after the commencement of an action affect the operation of CR 15(a). See, e.g., King County LCR 4(a) (clerk files a "Clerk's Original Case Schedule," which immediately sets trial date upon filing of complaint and opening of case file); Pierce County LCR (b) (clerk issues and files "Case Schedule" when new matter filed). Based upon Wolfe, you could argue that a party has no power to amend as a matter of course in counties with such rules, although it seems likely the court in Wolfe was contemplating that the trial would be set much later in the case schedule, when an amendment could more likely present some danger of delay or prejudice to the party opposing amendment. A countervailing argument would be that a local rule having this effect is invalid to the extent that it conflicts with CR 15(a). See CR 81(b). Regardless of local rules, remember that pleadings may not be supplemented as a matter of course. Compare CR 15(a) with CR 15(d).

(b)Amendment by leave of court

If amendment is not permitted as a matter of course under CR 15(a), a party may amend its pleading only by leave of court or by written consent of the adverse party, and leave shall be freely given when justice so requires. If leave of court is required but not obtained, the trial court may "strike" the amended pleading. Williams v. Bank of Cal., 96 Wn.2d 860, 871, 639 P.2d 1339 (1982).

Practice Tip: One can expedite amendment by obtaining the consent of the adverse party. CR 15(a) requires the consent be in writing. A party seeking an agreed order should provide opposing counsel a copy of the proposed amendment, together with the proposed stipulation and order. CR 15 does not mandate that the stipulation be filed or that the court approve the stipulation. Some courts have held that once a stipulation is entered, the trial court has no discretion to deny a party leave to file an amendment. E.g., Fern v. United States, 213 F.2d 674 (9th Cir. 1954). Regardless, to file the stipulation, and in some cases, to obtain an agreed court order to permit amendment based upon the stipulation, may be desirable to clarify the record. A stipulation may avoid the need for motion procedure, or may suggest the need for motion procedure. If the stipulation will affect other matters, such as pending motions, the pretrial schedule, or even the trial date, consider offering the court a proposed resolution to such issues. Some such affected matters may require court involvement regardless of CR 15(a).

Practice Tip: As with amendments as a matter of course under the first Tip: sentence of CR 15(a), any of the pleadings enumerated in CR 7(a) may be amended with leave of court. CR 15 makes no attempt to list or to limit the purposes for which an amendment may be made or the character of the amendment sought. Courts have granted leave to amend for a variety of reasons, including the following: to cure a defective pleading; to amplify or clarify a previously alleged claim or defense; to change the nature or theory of a claim; to state additional claims or defenses; to increase the amount of damages sought; to elect new or additional remedies; to add or delete parties; or to otherwise correct insufficiently stated claims, defenses, or remedies. See generally 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure §1474 (3d ed. 2010 & Supp. 2013).

A motion for leave to amend must—like any motion—state its grounds "with particularity." CR 7(b); Doyle v. Planned Parenthood, 31 Wn.App. 126, 130, 639 P.2d 240 (1982). In theory, amendments under the second sentence of CR 15(a) may be made at any stage of the litigation. E.g., Caruso, 100 Wn.2d at 349 (amendment permitted five years and four months after filing of original complaint). In practice, however, delay in seeking leave to amend may result in denial of such a motion. See §15.6(2)(e), below.

(c)Discretion of the trial court to grant motions to amend

CR 15(a) states that "leave [for...