COMPLAINTS & ANSWERS Consistency in Pleading Complaints Pleading “in the alternative” permitted Alternative theories of recovery Answers Deny + Affirmative defenses + 12(b) defenses Affirmative defenses Cf. Common law “Confession & avoidance” But c & a admits allegations of complaint Federal rules = alternative

WHERE WE ARE Complaint Answer 12(b) Motions Amended Pleadings Pre-Trial Trial & Post-Trial Appeal Reply

PLEADING Amendments Amended Pleadings FR 15(a) When & How FR 15(c) Relation back FR 15 (b) Conform to Evidence

PLEADING Amendments FR 15(c) Relation Back Permitted under applicable s/l PartyClaim Notice Knew (s/h/k) correct party Same T&O

SKILLS Arguing From Precedent Rule 15(c)(2) Hypothetical (Variation -Haddle, p. 409) Suppose Haddle had begun by pleading an age discrimination claim he was fired because of his age violates federal law Discovery proceeds Claim looks more and more tenuous

SKILLS Arguing From Precedent Rule 15(c)(2) Hypothetical (cont.) Amend to add 42 U.S.C. Sec 1985 claim? statute of limitations has run

SKILLS Arguing From Precedent Rule 15(c)(2) Hypothetical Arguments using Moore and Bonerb? When are two claims sufficiently related? How does surprise factor in?

SKILLS Arguing From Precedent Reconciling & Distinguishing Cases Are Moore and Bonerb distinguishable? Do you agree with either?

RULE 15(c)(3) Adding Parties FR 15(c)(3) Hypothetical Variation on Beeck v. Aquaslide Suppose after Beeck learned that Aquaslide hadn’t manufactured the slide Sought to amend the complaint Change name of def from Aquaslide to the “counterfeit” manufacturer Permissible?

TAKEAWAYS Black Letter Law (the “gist”) Amendment relates back if Permitted under s/l, or New claim same transaction or occurrence (t & o), or New party Notice, so not prejudiced Knew/should have known was correct party

TAKEAWAYS Practice Pointers Don’t procrastinate! Don’t wait until last minute to file complaint Don’t plead too specifically

READING RULES MAP-ing FR 15(c) An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action,

READING RULES MAP-ing FR 15(c) or (2) 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 pleading,

READING RULES Map-ing FR 15(c) within the period provided by Rule 4(m)Rule 4 for service of the summons and complaint, the party to be brought in by amendment has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits,

READING RULES Map-ing FR 15(c) and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.