Chapter 15 Amendments and Supplemental Pleadings

• Library: South Carolina Civil Procedure (SCBar) (2020 Ed.)

Chapter 15 Amendments and Supplemental Pleadings Rule 15¹

(a) Amendments. A party may amend his pleading once as a matter of course at any time before or within 30 days after a responsive pleading is served or, if the pleading is one to which no responsive pleading is required and the action has not been placed upon the trial roster, he may so amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires and does not prejudice any other party. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within fifteen days after service of the named amended pleading, whichever period may be longer, unless the court orders otherwise.

Note:

This Rule 15(a) is substantially the same as the Federal Rule, and preserves present State practice under Code §§ 15-13-910 and 15-13920. The Rule increases the time to amend a pleading without court order from 20 to 30 days, and the time to plead in response to an amended pleading from 10 to 15 days. It also adds the requirement that the court not allow amendment prejudicial to another party, which is a statement of existing case law.

(b) Amendment to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court shall upon motion grant a continuance reasonably necessary to enable the objecting party to meet such evidence. Upon allowing any such amendment or evidence the Court shall state in the record the reason or reasons for allowing the amendment or evidence. In the event the Court should try issues not raised by the pleadings, it shall state in the record all such issues tried and the reasons therefor.

Note:

This Rule 15(b) broadens the court's power to allow amendments to conform the pleadings to the evidence under Code § 15-13-920; but this is necessary if the philosophy of the Rules, that the pleadings must state the issues, is to be consistent. The Rule also circumscribes the use of amendment at late stages in a trial by requiring the court to grant continuance of the trial as necessary, and stating in the record the reasons for allowing the amendment.

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleadings, the amendment relates back to the date of the original pleading.

An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Note:

This Rule 15(c) is the same as the Federal Rule.

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented, whether or not the original pleading is defective in its statement of a cause of action or defense. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.

Note:

This Rule 15(d) is the same as the Federal Rule. State practice since 1870 has followed this procedure. McClaslan v. Latimer, 17 S.C. 123 (1882); Francis Marion Hotel v. Chicco, 131 S.C. 344, 127 S.E. 436 (1924).

A. Amendment of Right

Rule 15 applies only to parties.² The first sentence of Rule 15(a) governs amendments as of right. The complaint, counterclaim, cross-claim, and third-party complaint may be amended once as a matter of right any time "before or within thirty days after a responsive pleading is served."³ The filing of a responsive pleading does not terminate the absolute right to amend as it did under a former version of the federal rule.⁴ Thus, the complaint and similar pleadings seeking affirmative relief may be amended as of right at any time prior to service or within thirty days after the other side serves a response.

A pleading that does not require a response may be amended as a matter of right any time within thirty days after it is served. The pleadings in this category are the answer to the complaint or cross-claim, the reply to the counterclaim, and the third-party answer. If the pleader seeks leave of court for the amendment, the time for responding to the amended complaint commences when the motion is granted.⁵

Amendment as of right may be affected by other rules. For example, Rule 7(a) gives the plaintiff the right to file an optional reply to the affirmative defenses raised in an answer. There are no cases on whether the discretionary reply extends the time to amend the answer as of right. However, it should not extend the time because the reply is not a required responsive pleading under Rule 7(a), and only required pleadings affect the time to amend. The movant should not be prejudiced because any amendment made within sixty days after the answer is likely to be granted routinely by the court.

Several rules require leave of court before the pleader may act. Rule 21 states that parties may be dropped or added in the discretion of the court. Rule 13(g) requires court approval for adding an omitted counterclaim, and Rule 14 requires leave of court to add a third-party defendant more than ten days after the answer is filed. The pleader may use the right to amend as a matter of course to achieve the same end, thus raising the question of which rule controls. The result should be the same regardless of the rule used.

An amendment of right normally is made at the beginning of the suit, and the court should automatically grant a discretionary amendment made at the same time. Finally, the right to amend automatically may be lost if the matter has been placed on the trial roster.⁶

B. Pre-Trial Amendments in the Discretion of the Court

The second sentence of Rule 15(a) controls all other amendments. "[A] party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires and does not prejudice any other party." Any amendment may be made if the opposing party consents. The rule requires written consent.⁷ An agreement in open court noted in the record presumably would satisfy this requirement.⁸ All other amendments are discretionary with the court, and the judge's decision will be reversed on appeal only for an abuse of this standard.⁹ Orders granting or denying motions to amend are interlocutory orders and generally not immediately appealable.¹⁰

Rule 15, as did Code Pleading in this state,¹¹ strongly favors the granting of amendments and provides that "leave [to amend] shall be freely given." The drafters of the rules added language that the amendment should not prejudice other parties. However, that language is not an additional restraint on the power to amend because amendments have always been conditioned upon a lack of prejudice.¹² Prejudice in these circumstances means the lack of opportunity to prepare for the issue or the inability to introduce additional evidence if the case is retried.¹³ Sufficient opportunity to conduct discovery and prepare for the issue is relevant in determining prejudice.¹⁴ The opposing party must establish prejudice by affidavit or other means.¹⁵ "In the absence of a proper reason, such as bad faith, undue delay or prejudice, a denial of leave to amend is an abuse of discretion."¹⁶ Delay in seeking the amendment will not be a sufficient reason to deny it unless the amendment prejudices the defendant.¹⁷ Thus, an amendment adding a party under Rule 19(a) should be granted even though substantial discovery had occurred.¹⁸

Arguments should be focused on issues relevant to the motion rather than substantive issues in the amendment.¹⁹

A motion to amend an Answer should be contested primarily by procedural arguments, not arguments concerning the substance and merits of the counterclaims and/or defenses proposed. For example, one might argue that it is too late in the case to allow an amendment, and that prejudice would result from such an amendment. Arguments going to the legal merits of a proposed defense or counterclaim are better taken up in the context of a Rule 12(b) motion to dismiss or a Rule 56 motion for summary judgment. It follows that the trial judge should generally not consider these substantive arguments at the mere amendment stage.²⁰

Arguments directed only to the substantive aspects of the motion may waive the right to object to the amendment.²¹

Although there is no time limit for amendments with leave of court, the closer they are to trial the more likely the court will find them prejudicial...