Today’s post is a short cautionary tale about Federal Rule of Civil Procedure 15(a)(1) and plaintiff’s “one free shot” at amending a complaint.  That rule provides:

A party may amend its pleading once as a matter of course no later than:

(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.

The rule is followed by Fed. R. Civ. P. 15(a)(2) which states that “[i]n all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” 

But what constitutes leave of court may not always be so clear, or so defendant learned in Coblin v. Depuy Orthopaedics, Inc., 2024 U.S. Dist. LEXIS 15120 (E.D. Ky. Jan. 29, 2024).  The case comes out of a hip implant MDL.  At issue was defendant’s motion to strike plaintiff’s third amendment complaint filed without leave of court and within 21 days of defendant having moved to dismiss the action.  Plaintiff claimed that her third amended complaint was actually her “one free shot.”  So, the court traced the history of the prior amendments. 

Plaintiff’s original complaint was filed in the Northern District of Texas.  While pending there, plaintiff filed her first amended complaint which defendant argued was done without leave of court.  However, that court had entered a Scheduling Order that stated “Plaintiff shall amend pleadings by September 30, 2022.”  Id. at *5.  Plaintiff filed her first amended complaint within that time frame, and not in response to a responsive pleading or within 21 days of service of the original complaint.  Therefore, the court concluded that the first amended complaint was only proper if it was made pursuant to leave of court.  Id. And that leave of court was the scheduling order. 

After the case was transferred to the Eastern District of Kentucky, plaintiff sought the court’s leave to file a second amended complaint, which the court granted.  Id. at *3.  So, despite the fact that it was plaintiff’s fourth attempt to plead her claims, her third amended complaint was her “one free shot.”  Id. at *6.  While it is more typical for plaintiff to use the “free shot” before requesting leave to amend, “there is no requirement that they do so; a party may amend under Rule 15(a)(2) before it amends under 15(a)(1).”  Id.  The motion to strike was denied.

What all this means is that because of the imprecise language of the scheduling order, language that is used frequently, plaintiff was able to bank her “one free shot” and use it two years into the litigation and after a sneak peek at defendant’s grounds for dismissal.  The issue here was complicated by the court in Kentucky needing to interpret what the court in Texas intended by its scheduling order.  But, in MDLs it is not uncommon for transferee courts to have to do just that.  Nor is it uncommon to have case-specific Rule 12 motions filed late in the day–after generic rulings, after discovery, after plaintiff has seen the writing on the wall.  So, should defendants be thinking about asking courts to clarify that pleadings amendment deadlines are not de facto leave of court, but rather just the deadline by which if plaintiff wants to amend her complaint she needs to have taken the steps necessary to make that happen.  Including seeking leave of court under Rule 15(a)(2) if the terms of 15(a)(1) don’t apply.  

We leave you to ponder that question and with these words of caution–don’t assume the first amendment is the freebie.