Mon. Nov. 5

amendment

15(a) Amendments Before Trial. (1) Amending as a Matter of Course 15(a) Amendments Before Trial. (1) Amending as a Matter of Course.  A party may amend its pleading once as a matter of course within:  (A) 21 days after serving it, or  (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

15(a)(2) Other Amendments 15(a)(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

relation back

(c) Relation Back of Amendments. (1) When an Amendment Relates Back (c) Relation Back of Amendments.     (1) When an Amendment Relates Back.  An amendment to a pleading relates back to the date of the original pleading when:         (A) the law that provides the applicable statute of limitations allows relation back;         (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set         out — in the original pleading; or…

  - P sues D (within the statute of limitations) for breach of contract - After the statute of limitations had passed, P amends his complaint to include a new theory of liability – promissory estoppel (which does not require a contract) - Is P’s action for promissory estoppel time barred?

- P sues D (within the statute of limitations) for battery - After the statute of limitations had run on his breach of contract action against D, P amends his complaint against D to include the breach of contract action - Is it time barred?

Blair v. Durham (6th Cir. 1943)

“The issue here as to whether the statute of limitations was tolled by the original complaint depends upon whether the amendment stated a new cause of action”

- P sues D for negligent manufacturing because the product he bought blew up in his face - After the statute of limitations ran, he amended his complaint to allege negligent hiring of workers – in particular the hiring of an employee with a criminal record for maliciously putting bombs in products

- P sues D for battery within the statute of limitations - After the statute of limitations has run, he find out that X is the one who committed the battery - P amends the complaint to name X and serves X - relation back?

- P sues an individual doing business under the name of "Malibou Dude Ranch," - after the limitations period had run P discovered that the owner of the business was "Malibou Dude Ranch, Inc.," a corporation, and that the individual was merely the corporation's agent, who was competent to receive service on behalf of the corporation - P amends the complaint to name the right defendant and serves the individual again - relation back?

counterclaims

13(a) Compulsory Counterclaim. (1) In General 13(a) Compulsory Counterclaim.     (1) In General.  A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim:         (A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and         (B) does not require adding another party over whom the court cannot acquire jurisdiction.     (2) Exceptions.  The pleader need not state the claim if:         (A) when the action was commenced, the claim was the subject of another pending action; or         (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.

Assume NY does not have a compulsory counterclaim rule Assume NY does not have a compulsory counterclaim rule. •    P sues D in NY state court •    D fails to bring a cause of action against P that concerns the same T or O as P’s claim against D •    D subsequently sues P in federal court on the cause of action he refrained from bringing in the New York suit •    Is D barred from bringing the cause of action anyway?

Assume NY does not have a compulsory counterclaim rule Assume NY does not have a compulsory counterclaim rule. •    P sues D in federal court •    D fails to bring a cause of action against P that concerns the same T or O as P’s claim against D •    D subsequently sues P in New York state court on the cause of action he refrained from bringing in the federal suit •    Is D barred from bringing the cause of action anyway?

- P sues D in state court for battery - P sues D in state court for battery. - While that action is proceeding D sues P in federal court for D's damages from the same brawl. - Is P required to bring his battery action in the federal court as a compulsory counterclaim to D's federal suit against P?

P sues D in California state court for breach of a contract to pay for securities - D fails to join an action against P for violation of federal securities law that concerns the same transaction or occurrence as P's action against D - California has a compulsory counterclaim rule. - Subsequently D brings an action in federal court in California against P for violations of federal securities law - P claims the action is barred under California's compulsory counterclaim rule - What result?

- Officer P sues arrestee D in California state court for battery in connections with P's arrest of D. - California has a compulsory counterclaim rule. - Must D join in his answer his federal civil rights action against P concerning P's actions in the arrest? - If D brings the counterclaim, may P remove? - If D brings the counterclaim, may D remove?

Officer X knows that he is likely to be sued under federal civil rights law by Y, someone he arrested. He feels that a state court would be more favorable to him than a federal court. How might X use the compulsory counterclaim rule (assuming it applies in state court) to ensure a state court forum for Y’s federal civil rights action?