Rule 15 Hypos

1. P files and serves a complaint on Jan. 20. D makes no preanswer motions. On Feb. 1, D serves an answer denying some
of Ps allegations. The answer contains no counterclaims and
does NOT contain a defense of lack of personal jurisdiction. On
Feb. 2, Ds lawyer (not a USC grad) realizes for the first time that
the court may lack personal jurisdiction over D. Has Ds lawyer
waived the personal jurisdiction defense?
No. Rule 12(h)(1) governs when a defense of lack of personal
jurisdiction is waived. In this case, the defense was not waived
under 12(h)(1)(A) because Ds lawyer did not omit the defense
from a Rule 12 motion; D made no Rule 12 motions at all. In
addition, the defense is not waived under 12(h)(1)(B) because
there is still time for D to amend the answer as a matter of course
to add the defense. See Rule 12(h)(1)(B)(ii). Rule 15(a)(1)(A)
permits an amendment as a matter of course up to 21 days after
service of the answer, and only one day has passed in this case.
2. P files and serves a complaint on Jan. 20, seeking damages
for an alleged breach of contract. D responds on Feb. 1 with an
answer that denies several of Ps allegations and, in turn, includes
a counterclaim against P for breach of contract. On Feb. 22, P
serves and files an answer to the counterclaim. D now, on Feb.
23, wishes to add a counterclaim for negligence against P. Is it
too late for D to amend his answer as a matter of course?
No. Because the answer includes a counterclaim, it is a pleading
to which a responsive pleading is required for purposes of Rule
15(a)(1)(B). Under this provision, D has 21 days after the service
of Ps answer to the counterclaim to amend Ds answer as a
matter of course, and only one day has passed since service in
this case.

3. P files and serves a complaint on Jan. 20. The complaint

includes a claim for slander, but the allegations never stateor
even implythat D published the allegedly defamatory statement.
D therefore responds on Feb. 1 with a timely 12(b)(6) motion.
Upon reading Ds motion, Ps lawyer (not a USC grad) realizes
that the omission of an allegation related to publication is a
problem, but then Ps lawyer gets busy with other matters. It is
now Feb. 24. P wishes to amend the complaint to include an
allegation that several bystanders were present and heard Ds
allegedly defamatory utterance. The court has not acted on Ds
12(b)(6) motion. May P amend the complaint as a matter of
course to include the omitted allegation? What should P do?
Its too late for P to amend the complaint as a matter of course.
Rule 15(a)(1)(A) does not apply because more than 21 days have
passed since P served the complaint. And Rule 15(a)(1)(B) does
not allow amendment as a matter of course because more than
21 days have passed since D served its 12(b)(6) motion. If P
wishes to amend the complaint, he should first contact Ds lawyer,
who may be willing to give written consent. See 15(a)(2). Ds
lawyer may consent because, if P has evidence of publication but
just failed to include the allegation, the court will grant Ds motion
but give P leave to amend, and P will refile a proper complaint.
All of that will chew up time, and D presumably wants the case
resolved in Ds favor as quickly as possible. If D does not
consent to amendment, then P will have to make a motion to
amend, which the court will probably grant at this early stage.
And the court will resent the fact that it had to spend time and
money dealing with the motion when D could just as easily have
consented to the amendment. Thus, to move the case
expeditiously and to avoid looking bad in front of the judge, D
would very likely consent to the amendment if P were to ask.

4. P files and serves a complaint on Jan. 20. On Feb. 1, D files

and serves a 12(b)(6) motion. On Feb. 23, the court denies the
motion and notifies the parties. On Feb. 28, D files and serves an
answer. May P now, on March 1, amend the complaint as a
matter of course?
Its too late for P to amend the complaint as a matter of course.
Rule 15(a)(1)(A) does not apply because more than 21 days have
passed since P served the complaint. And Rule 15(a)(1)(B) does
not allow amendment as a matter of course because more than
21 days have passed since D served its 12(b)(6) motion.
Although 21 days have NOT elapsed since D served its answer,
that fact does not help P because Rule 15(a)(1)(B) states that P
can amend as a matter of course EITHER within 21 days of Ds
serving a Rule 12 motion, OR within 21 days of Ds serving an
answer, whichever is earlier. In this case, the earlier deadline
already passed 21 days after D served the Rule 12 motion.
Thus, P may not amend the complaint as a matter of course but
may still, under Rule 15(a)(2), seek Ds consent to amend or,
failing to get consent, may make a motion to amend. For the
implications of seeking and providing consent, see the answer to
#3 above.
5. P files and serves a complaint on Feb. 1. Before D serves any
response, P files and serves an amended complaint on Feb. 5.
When must D respond?
D must respond by Feb. 22. Under Rule 12(a)(1)(A)(i), the
deadline for D to respond to the original complaint was Feb. 22.
Rule 15(a)(3) gives D the later of that date OR 14 days after
service of the amended pleading. P served the amended
complaint on Feb. 5, so 14 days later is Feb. 19. Because Feb.
22 is later than Feb. 19, Feb. 22 is Ds deadline.