Amending a Delaware pleading: one free amendment, and you must show plainly what changed

Delaware's amendment rule follows the familiar pattern — one amendment as of right, then leave freely given — and adds a requirement most states leave to courtesy.

Rule 15(aa):

Form of amendments. A party serving an amended pleading shall indicate plainly in the amended pleading in what respect the amendment differs from the pleading which it amends.

The changes have to be visible in the pleading itself. A clean amended complaint that silently rewrites paragraphs does not comply, however accurate it is.

The one free amendment

Rule 15(a):

Amendments. A party may amend the party's 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, the party may so amend it at any time within 20 days after it is served. Otherwise, a party may amend the party's 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.

Four things worth drawing out.

The trigger is a responsive pleading, not a motion. A Rule 12 motion is not a pleading, so a defendant who moves to dismiss has not cut off the plaintiff's free amendment. Where a motion is pending, the right usually survives.

The second limb has two conditions. Twenty days is available only where no responsive pleading is permitted and the action has not been placed on the trial calendar. Reaching the trial calendar closes it.

Consent works in writing. Leave of court is not the only route — written consent of the adverse party does the same job, without a motion.

The response period is a floor, not a substitute. The rule takes the longer of the time remaining on the original pleading and ten days, so an amendment served early in a twenty-day answer period does not shorten what is left.

Relating back

Rule 15(c) decides whether an amendment is treated as filed on the date of the original pleading — the question that matters when a limitations period has since run.

Relation back of amendments. An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) 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, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by statute or these Rules for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

The three limbs are alternatives — "or" — so a claim that fails one may still relate back under another.

(1) defers to the limitations law itself. Where that law permits relation back on terms of its own, those terms govern.

(2) is the ordinary test for new claims: the same "conduct, transaction, or occurrence". Note the phrase "set forth or attempted to be set forth" — an inadequate attempt in the original pleading still counts as the reference point.

(3) covers changing or renaming a party, and stacks three requirements on top of (2). The new party must, within the period for service of the summons and complaint, have received notice such that it is not prejudiced in defending, and have known or had reason to know that but for a mistake about identity the action would have named it.

The timing condition in (3) is the one that decides most cases. Notice has to have arrived inside the service window, not merely before the amendment is filed.

Amending to match the evidence

Rule 15(b) deals with issues that surface at trial.

Where issues not raised in the pleadings "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", and amendment "may be made upon motion of any party at any time, even after judgment".

The rule then adds a clause that removes most of the risk: "failure so to amend does not affect the result of the trial of these issues." If the issue was tried by consent, the judgment stands whether or not anyone remembered to amend.

Where evidence is objected to as outside the pleadings, the Court "may allow the pleadings to be amended and shall do so freely 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 the party". The burden of showing prejudice sits with the objector, and the Court may grant a continuance to let them meet the evidence.

So an objection on this ground is unlikely to exclude the evidence outright. What it realistically buys is time.

Supplemental pleadings

Rule 15(d) covers events that happen after the pleading was filed, which is a different thing from amending what it said.

Supplemental pleadings. Upon motion of a party the Court may, upon reasonable notice and upon such terms as are just, permit the party 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.

There is no supplemental pleading as of right. And unlike an amended pleading, a supplemental one draws no automatic response — the other side pleads to it only if the Court says so.

Where this connects

Amending is also the cure for two of the waiver traps in Rule 12. A defense of personal jurisdiction, venue, insufficiency of process or insufficiency of service survives if it is included in "an amendment thereof permitted by Rule 15(a) to be made as a matter of course" — so the free amendment is a second chance at those four. See the Delaware motion to dismiss.

For the answer clock an amendment resets, see responding to a Delaware complaint.

Where an amendment adds material outside the pleadings on a motion already pending, note the conversion route into Delaware summary judgment, where cross motions are treated as a stipulation to decide the case.

How Delaware compares

A short checklist

1. Check whether a responsive pleading has been served. A pending Rule 12 motion is not one.
2. Mark the changes. Rule 15(aa) requires the amended pleading to show plainly how it differs.
3. Ask for written consent before moving for leave — it is an independent route.
4. Count the response period as the longer of the two, not automatically ten days.
5. If a limitations period has run, work through 15(c) limb by limb — they are alternatives.
6. For a new party, the notice must have arrived inside the service window.
7. Use Rule 15(d) for events since filing, and expect to need a motion.
8. If you are amending to preserve a Rule 12 defense, do it as of course — that is the amendment the waiver provision names.

Where these rules live

• Del. Super. Ct. Civ. R. 15 — Amended and supplemental pleadings
• Del. Super. Ct. Civ. R. 12 — Defenses and objections
• Del. Super. Ct. Civ. R. 6 — Time

This page explains what the rules say. It isn't legal advice, and whether a claim is time-barred depends on limitations law this site doesn't cover.