Reporter’s Notes:

(1973): The first part of Rule 15(a) allows a party to amend his pleading prior to entry of an order of dismissal, under certain circumstances, once, as a matter of course. The circumstances are: (1) the pleading is one with respect to which a responsive pleading is permitted (see Rule 7(a) ) and no responsive pleading has yet been served; or (2) the pleading is one to which no responsive pleading is permitted (see Rule 7(a) ) and the action has not yet been placed on the trial calendar. In the first case, no time limit is imposed; in the second, amendment must take place within 20 days after service of the original pleading.

Rule 15(a) is the same as Federal Rule 15(a) except that it also specifically limits the right of amendment as a matter of course to the situation where there has not been an order of dismissal.

Because a motion is not considered a pleading within the meaning of Rule 15 (see Rule 7(a) ), Federal Rule 15(a) if read literally, would permit a plaintiff to amend his pleading, without leave of court, even after the Court had granted a motion to dismiss or a motion for summary judgment.

Most of the federal courts which have considered the matter have held that a motion is not a pleading within the meaning of Rule 15(a). Thus a mere filing of a motion to dismiss does not prevent the plaintiff from amending his complaint as a matter of right. See Keene Lumber Co. v. Leventhal, 165 F.2d 815 (1st Cir. 1948). It is however unclear whether the plaintiff should be entitled to amend his complaint as a matter of right after a motion to dismiss or a motion for summary judgment has been granted. The Court in Keene Lumber Co. held that the plaintiff’s right to amend as a matter of course ended with the granting of the motion to dismiss; so have most courts which have considered the matter. There are however enough contrary decisions to cause the matter to be handled by a specific provision in Rule 15(a). See Breier v. Northern California Bowling Prop. Ass’n, 316 F.2d 787, 789 (9th Cir. 1963); Peckham v. Scanlon, 241 F.2d 761 (7th Cir. 1957).

The right to amend as a matter of course should not extend beyond the granting of a motion to dismiss or a motion for summary judgment. Because the plaintiff, who has already had an opportunity to amend prior to the disposition of the motion, nonetheless chose to stand (unsuccessfully) on his original pleading, the defendant who successfully moved against such pleading should at the least be allowed to oppose the amendment. This does not burden the plaintiff unduly, since even if leave of court is made a requirement, such leave will be liberally granted. See Moore, Federal Practice § 15.07 [2], (2d ed. 1968). And even if leave to amend is not granted, the plaintiff may still move for relief under Rules 59(e) or 60(b). These rules contain time limits, while present post-dismissal practice under Rule 15(a) does not.

The second part of Rule 15(a) deals with amendments by leave of court or by written consent of the adverse party. Rule 15(a) specifically provides that “leave shall be freely given when justice so requires.”

In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Court strongly reaffirmed this mandate.

Rule 15(a) clearly alters prior Massachusetts practice. Amendment as a matter of right did not exist in Massachusetts. See G.L. c. 231, §§ 51-56. Motions to amend were addressed to the discretion of the trial judge. Reilly v. Revere Racing Ass’n Inc., 349 Mass. 763, 208 N.E.2d 232 (1965). Thus an exception to the denial of a motion to amend merely raises the question of abuse of discretion by the trial judge. Magaletta v. Millard, 346 Mass. 591, 195 N.E.2d 324 (1964).

Under the interpretation of Federal Rule 15(a) in Keene Lumber, supra, the plaintiff has the right to one amendment, without leave of court, even though the defendant has filed a motion to dismiss the complaint.

Rule 15(a) changes Massachusetts law in another material respect. Under prior practice an amendment setting out new causes of action could not be allowed. Boston Trust Funds Inc. v. Henderson, 341 Mass. 730, 170 N.E.2d 318 (1960); Beckwith v. Massachusetts Turnpike Authority, 354 Mass. 766, 238 N.E.2d 364 (1968). No such limitation exists under Rule 15. Indeed, Rule 15(d) permits the court, on terms, to allow a party to serve a supplemental pleading setting out further transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Previously, Massachusetts law did not allow an amendment to a declaration attempting to introduce a cause of action that did not exist when the action was brought. Sharpe v. Metropolitan Transit Authority, 327 Mass. 171, 97 N.E.2d 399 (1951).

Rule 15(b), which tracks Federal Rule 15(b), does not significantly change Massachusetts procedure. Issues, to whose trial the parties expressly or impliedly consent, will, even if not raised by the pleadings, be treated in all respects as if they had been so raised. Although such amendment of the pleadings to conform to the evidence may be made at any time, failure to amend does not affect the result of the trial.

If a party objects at the trial to evidence on the ground that it is not within the issues made by the pleadings, Rule 15(b) enjoins the court freely to allow amendment unless the objecting party satisfies the court that admission of such evidence would prejudice his case on the merits. A continuance may be granted to the objecting party to meet the evidence.

This rule differs slightly from previous Massachusetts practice. Although language of Mass. G.L. c. 231, § 51 (“at any time before judgment”) appears sufficiently broad to permit the trial judge to allow amendment during trial where an objection is made to the admission of certain evidence, the Court in Lewis v. Russell, 304 Mass. 41, 45, 22 N.E.2d 606, 608-609 (1939) held that defective pleading cannot be cured merely by reference to the plaintiff’s evidence. But even in Lewis, supra, the Court concluded: “This decision does not affect the power of the Superior Court in its discretion to allow the defendant to amend her answer on motion filed before judgment if, under all of the circumstances, justice appears to require such amendment.”

Rule 15(c) provides for the relation back of amendments whenever the claim or defense asserted arose out of the conduct, transaction or occurrence attempted to be set forth in the original pleading. This provision ties directly to the statute of limitations.

Under Federal Rule 15(c) an amendment changing the party against whom a claim is asserted may relate back (and thus preclude a statute of limitations defense) if the claim in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Massachusetts practice is more liberal than Federal Rule 15(c) in allowing amendments adding or substituting party defendants after expiration of the period of limitations. The Massachusetts rule is set out in detail in Wadsworth v. Boston Gas Company, 352 Mass. 86, 88-89, 223 N.E.2d 807, 809-810 (1967) in the following language:

“. . . It has often been said that the running of the statute of limitations is not a reason for denying an amendment and may furnish a reason for allowing it. Johnson v. Carroll, 272 Mass. 134, 138, 172 N.E. 85; Peterson v. Cadogan, 313 Mass. 133, 134, 46 N.E.2d 517, and cases cited. In general, the law in this Commonwealth with respect to amendments is more liberal than elsewhere, and cases from other jurisdictions are not in point. Neszery v. Beard, 226 Mass. 332, 334, 115 N.E. 420. See Ideal Financing Assn. Inc. v. McPhail, 320 Mass. 521, 523, 70 N.E.2d 311.

“There is ample authority for the proposition that where an action has been commenced before the statute of limitations has run, a plaintiff may be allowed to substitute one defendant for another after the statute of limitations has run against the proposed substitute defendant. McLaughlin v. West End St. Ry., 186 Mass. 150, 151, 71 N.E. 317. Genga v. Director Gen. of Railroads, 243 Mass. 101, 104, 137 N.E. 637, and cases cited. After the amendment has been allowed and the defendant brought into court by due process, the substitution relates back to the date of the writ and makes the substituted defendant a party from that date. Johnson v. Carroll, 272 Mass. 134, 137, 172 N.E. 85. We discern no difference in principle between permitting a plaintiff to substitute a defendant and permitting a plaintiff to add a defendant. See Cohen v. Levy, 221 Mass. 336, 337, 108 N.E. 1074; McPherson v. Boston Edison Co., 336 Mass. 94, 97, 142 N.E.2d 758. The effect in both cases is that a different defendant is called upon to defend the action. We hold, therefore, that the propriety of allowing the amendment in both cases is governed by the same rules.”

For statutory requirements governing amendment of names in Superior Court divorce proceedings, see G.L. c. 208 § 10.

Rule 15(d) provides that the court, upon motion of a party, may allow the party to serve a supplemental pleading setting forth transactions, occurrences, or events postdating the pleading sought to be supplemented. This liberalizes Massachusetts law, which did not allow an amendment to sustain a new cause of action not intended when the writ was drawn. See Church v. Boylston and Woodbury Cafe Co., 218 Mass. 231, 105 N.E. 883 (1914).