§ 6-1115.Amended and supplemental pleadings.

Current version (effective January 1, 2025)

COMMENTS TO § 6-1115 [1] Subpart (a)(1) allows a party to amend its pleading once as a matter of course, without the need to obtain leave of court or the consent of the opposing party. The 2024 Amendments made changes to the time for amending as a matter of course. The purpose of the changes is to give plaintiffs (and other parties asserting claims) the opportunity to amend their pleadings to address issues raised by an answer or by a motion to dismiss, a motion for a more definite statement, or a motion to strike. Giving plaintiffs that opportunity may help to move the case forward more efficiently and avoid the need for the court to rule on some or all the motions. The changes were modeled on Rule 15(a)(1) of the Federal Rules of Civil Procedure but set a shorter time period than the federal rules do. [2] Cases may involve multiple parties, with some defendants appearing and serving pleadings or motions earlier than others. In those cases, the time period for amending as a matter of course for all parties begins to run when the first responsive pleading or § 6-1112(b), (e), or (f) motion is served. [3] Subpart (a)(3) provides that unless the court orders otherwise, the responsive pleading to an amended pleading must be served within the time remaining to respond to the original pleading or 14 days after service of the amended pleading, whichever is longer. The 2024 Amendments increased the number of days from 10 to 14 as part of the general resetting of time periods in multiples of 7. The reason for resetting the time periods is discussed in Comment [1] on § 6-1112. [4] The original title of subpart (b) was “Amendments to Conform to the Evidence.” The subpart provided, among other things, that an amendment was not necessary when the issues were tried by the express or implied consent of the parties. The most common scenario of implied consent is that of a party failing to object when the opposing party offers evidence that is uniquely relevant to an unpled issue. [5] It was unclear whether the implied consent provisions applied to summary judgment motions or were instead limited to trials. The issue was raised but not decided in Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809 (2006). The 2024 Amendments answer the question. The amendments changed the title of subpart (b) to “Amendments During and After Trial” and restructured the subpart to make it clear that the provisions only apply to objections made or to consent given during trial.

Prior version (in effect before January 1, 2025)

COMMENT Relation back of amendments is governed by § 25-201.02. (d) 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 a defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.