Need interpetation of Rule

[Lecasbas]

I am sending in my Appearance, Answer and Counterclaims tomorrow. I probably have enough Counterclaims but I'd like to reserve a right to amend them. I think this RCP may flip the bill but I'm having a little trouble with definitions.

I have dissected this Rule for the purpose of individual questions. I have not left a word out.

1.402(4) Amendments.

A party may amend a pleading once as a matter of course at any time before a responsive pleading is served

What is a responsive pleading. If I take the words literally, it means a response to a pleading. Is this correct?

Accepting this as the definition...I could file the Counterclaims and amend them any time before the adverse party serves an answer, right?

or, if the pleading is one to which no responsive pleading is required and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served.

How do I know if a responsive pleading is required? I have done a word search through the RCP and found nothing that says there is a responsive pleading required for Counterclaims. That doesn't mean it isn't so, it just means that I, the unlettered-pro-se guy, can't find it.

Let's say it isn't required. Then, I could amend the Counterclaims as long as the action has not been placed on the trial calender and the amendment is served within 20 days of the original service to the adverse party?

Otherwise, a party may amend a pleading only by leave of court or by written consent of the adverse party. Leave to amend, including leave to amend to conform to the proof, shall be freely given when justice so requires.

This last section of the Rule basically says that if neither of the previouse sections apply then only the Court could sanction an amendment to a pleading unless, of course, the JDB would say it's okay.

Then what is Leave to Amend and Leave to Amend to Conform to Proof?

I am going to guess that what I want is Leave to Amend Counterclaims?

Then do I ask to reserve the right to amend Counterclaims in with my original Counterclaims or do I ask nothing and send in a Leave to Amend Counterclaim if, in fact, I do want to amend my Counterclaims?

Where am I wrong...where am I right?

[direred]

Not a lawyer, but....

For example, if you were to countersue, that's not a responsive pleading, it's a new issue for the court.

An answer or a demurrer (if rules of civil procedure permit a demurrer; federal doesn't) is a responsive pleading. A Motion to Dismiss is not a pleading.

So, what this means: If you have a complaint, and you want to amend it, you may amend it ONCE before the answer or demurrer is filed.

So yes on the amend before they respond.

Some forms of pleadings require only action from the court and not an answer per se. I don't think you'll encounter those, generally.

So, let's say you need to amend your claim. For example, the defense in my case is now claiming they aren't subject to X because they did Y instead, and Y was not in my original complaint. And let's say the other party wouldn't agree for me to amend (they rarely will for reasons that are obvious).

Another time you'd move for leave to amend is when discovery showed a whole 'nother issue you didn't know about.

So I'd file a Motion for Leave to Amend Complaint with the court, serve it on the other party as well, and wait for the court to say, "okay, you can amend your complaint."

Then submit the amended complaint.

In the cases I've looked at the dockets for, it's not common to amend complaints, but it seems more common to amend them by leave of court later in the case. Then again, I've been looking at Federal cases.

[Recovering Attorney]

basically, you serve your answer and you have 20 days to amend to include any additional defenses or counterclaims. After that, you need the court's permission

[Lecasbas]

Originally posted by Recovering Attorney

basically, you serve your answer and you have 20 days to amend to include any additional defenses or counterclaims. After that, you need the court's permission

Got it.

One, last question...The laundry list of Counterclaims this forum offers gives this as an option:

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

I originally did have it as a last Counterclaim. My thoughts are that this is almost telling the Court what the pro-se guy is going to do regardless of what the Court thinks.

That being said, there doesn't seem to be any real value here by adding this particular Counterclaim to my Counterclaims, does there?