Federal Wrongful Death Suit Amendment – a Lawyer’s Complaint (FRCP 15)

Federal Wrongful Death Suit Amendment – a Lawyer’s Complaint (FRCP 15)

Fed. R. Civ. P. 15(a) strongly favors leave to amend being granted, including in §1983 civil right suits for wrongful death. Avery T. “Sandy” Waterman, Jr., Esq. recently was granted leave to amend a wrongful death suit against a former North Carolina state trooper with Rule 12 motions to dismiss pending. Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (Mar. 17, 2008), aff’d Order (E.D.N.C. May 22, 2008).

Webb held that amendment was not futile, unduly prejudicial, or in bad faith. See, Decision and Order at 4-7. Adding “an additional theory of recovery to the facts already pled…before any discovery has occurred” is permissible. Id. at 3.

Mr. Waterman’s success in Webb follows the Fourth Circuit reaffirming the liberal mandate of Rule 15 in 2006 and 2007, twice vacating and remanding for district court denials of leave to amend for abuse of discretion, even in the face of delay. “Delay alone… is an insufficient reason to delay the plaintiff’s motion to amend.” Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006)(en banc). Sitting en banc, the Fourth Circuit in Laber concluded that it was an abuse of discretion to deny Plaintiff’s Motion for Reconsideration and to Amend because Plaintiff’s amendment was not in bad faith, prejudicial or futile. Id. at 429. To the same effect is the Fourth Circuit’s more recent decision following Laber in Sciolino v. City of Newport News, Virginia, 480 F.3d 642, 651 (4th Cir. 2007)(Rule 15 motion to file a second amended §1983 civil rights complaint after entry of judgment of dismissal was appropriate).

“Rule 15(a) directs that leave to amend ‘shall be freely given when justice so requires.’ This liberal rule gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities. See, Conley v. Gibson, 355 U.S. 41,48, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)(‘The Federal Rules reject the approach that pleading is a game of skill in which one misstep counsel may be decisive to the out outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’); Ostrzenski v. Seigel, 177 F. 3d 245, 252-53 (4th Cir. 1999)(‘The Federal Rule policy of deciding cases on the basis of substantive rights involved rather on technicalities requires [the] Plaintiff be given every opportunity to cure a formal defect in his pleading.’(quoting 5(A) Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure § 357(2d ed. 1999))).”

Earlier, the Fourth Circuit reversed a district court that denied amendment because of “a change in the theory of recovery.” Wards Elecs. Serv. Inc. v. First Commercial Bank, 819 F.2d 496 (4th Cir. 1987). The “fact than an amendment changes the plaintiff’s theory of the case will not suffice as a reason for denial absent a showing of prejudice, bad faith, futility, or dilatoriness.” Id. At 497. “Under the circumstances, we think that Foman’s spirit required permitting this second amendment still early in the pre-trial process.” Id. (emphasis in original).