Linda7 Posted March 30, 2012 Report Share Posted March 30, 2012 When filing a motion for leave to amend another motion, do you file the motion and then wait for an answer before submitting the corrected version? Hope that makes sense. Link to comment Share on other sites More sharing options...
usagi555 Posted March 30, 2012 Report Share Posted March 30, 2012 Like so many other questions, that'll depend on your state's rules. In NM, you file a copy of the amended pleadings with your motion. Link to comment Share on other sites More sharing options...
Linda7 Posted March 30, 2012 Author Report Share Posted March 30, 2012 It would be for Utah. I don't think I saw anything about that, but I may be looking in the wrong place. Link to comment Share on other sites More sharing options...
Linda7 Posted March 30, 2012 Author Report Share Posted March 30, 2012 Anybody have a clue for Utah? Link to comment Share on other sites More sharing options...
legaleagle Posted March 30, 2012 Report Share Posted March 30, 2012 Utah Rule 15. Amended and supplemental pleadings.(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 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. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders. ( Amendments to conform to the evidence. When issues not raised by the pleading 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 amendments 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 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 upon the merits. The court shall grant a continuance, if necessary, to enable the objecting party to meet such evidence. © 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 pleading, the amendment relates back to the date of the original pleading. (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. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor. Link to comment Share on other sites More sharing options...
Linda7 Posted March 30, 2012 Author Report Share Posted March 30, 2012 (edited) Yes, but is it saying to file the leave to amend "only" and then wait for permission from the court to file the amended document?Or can you go ahead with the leave to amend and also file the amended document? Edited March 30, 2012 by Linda7 Link to comment Share on other sites More sharing options...
Linda7 Posted March 30, 2012 Author Report Share Posted March 30, 2012 Bumping again. It's crunch time! Link to comment Share on other sites More sharing options...
KentWA Posted March 30, 2012 Report Share Posted March 30, 2012 I have not seen anything definitive in the cases I have reviewed. I would say that if you want to impress the judge attached your proposed amendment as an exhibit to your motion and then when leave is granted, file it as its own document. The ones I have seen from the bigger firm here in Utah have done it that way. Others just asked for leave without producing the amendment. I would not file it as its own filing until the court says to. Link to comment Share on other sites More sharing options...
legaleagle Posted March 30, 2012 Report Share Posted March 30, 2012 Your rules are basically the same as ours, so I would title the motion "Defendant's (or Plaintiff's) Motion for Leave of Court to Amend (whatever the pleading is, Answer, etc.)This only applies if you are over the 20 day limit. If you are within the time limit and no response to the pleading has been received, it should be automatically accepted. If either of these two conditions have not been met (they answered, or it has been more than 20 days) you have to submit as I described above. In the automatic circumstance I would title the motion "Defendant's Motion to Amend XXX." Link to comment Share on other sites More sharing options...
Linda7 Posted March 30, 2012 Author Report Share Posted March 30, 2012 Thank you very much! Link to comment Share on other sites More sharing options...
legaleagle Posted March 31, 2012 Report Share Posted March 31, 2012 Linda, I just noticed that you mentioned that this may be a motion. Here, you simply file a notice to withdraw the motion, then you file the new one. It would be done like this:"Defendant's Notice to Withdraw Motion to do whatever"The defendant in the above titled action respectfully withdraws his / her motion dated XXXXX titled XXXX, (motion to do whatever) on this day of XXXX 2012. Then you would submit a NEW motion titled "Defendant's Second Motion to blah blah blah"You would cite the previous motion, the date you withdrew it, and why. Then proceed with the new motion. See if this fits your rules. Amending a pleading usually applies to a civil complaint or an answer to one. Link to comment Share on other sites More sharing options...
Linda7 Posted April 1, 2012 Author Report Share Posted April 1, 2012 It was a motion to compel arbitration, but the consumer used the wrong agreement. The creditor has already filed another motion opposing the MTC for various reasons. Of course using the wrong agreement was pointed out.In trying to correct the issue, it was thought to amend the motion to include the "correct" agreement would right the wrong. Link to comment Share on other sites More sharing options...
legaleagle Posted April 1, 2012 Report Share Posted April 1, 2012 That should do it. You can still follow the procedure I outlined above. Link to comment Share on other sites More sharing options...
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