Rule 15.Amended and supplemental pleadings

Reporter’s Notes—2018 Amendment: Rule 15(a) is amended to extend its 10- and 20-day time periods to 14 and 21 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporter’s Notes—1995 Amendment: Rule 15(c) is amended for conformity with a 1991 amendment of Federal Rule 15(c). The reasons for the amendment are those given in the federal Advisory Committee’s Note: The rule has been revised to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense. Paragraph (c)(1). This provision is new. It is intended to make it clear that the rule does not apply to preclude any relation back that may be permitted under the applicable limitations law . . . . Whatever may be the controlling body of limitations law, if that law affords a more forgiving principle of relation back than the one provided in this rule, it should be available to save the claim . . . . If Schiavone v. Fortune, 106 S. Ct. 2379 (1986) implies the contrary, this paragraph is intended to make a material change in the rule. Paragraph (c)(3). This paragraph has been revised to change the result in Schiavone v. Fortune, supra, with respect to the problem of a misnamed defendant. An intended defendant who is notified of an action within the period allowed by [V.R.C.P. 3] for service of a summons and complaint may not under the revised rule defeat the action on account of a defect in the pleading with respect to the defendant’s name, provided that the requirements of clauses (A) and (B) have been met. If the notice requirement is met within the [V.R.C.P. 3] period, a complaint may be amended at any time to correct a formal defect such as a misnomer or misidentification. On the basis of the text of the former rule, the Court reached a result in Schiavone v. Fortune that was inconsistent with the liberal pleading practices secured by Rule 8 . . . . New V.R.C.P. 15(c)(3) similarly recognizes that liberal pleading and amendment procedures are a longstanding feature of Vermont practice. The rule would change the interpretation of former Rule 15(c) announced in Bashara v. Corliss, 161 Vt. 1, 632 A.2d 30 (1993). In that case, the Court relied on Schiavone v. Fortune, supra, to hold that an amended complaint substituting the defendant’s first name for that of his father did not relate back where the amended complaint was filed and served after the statute of limitations had run but within the 60-day period provided by Rule 3 for service. Assuming that Rules 15(c)(3)(A), (B), are satisfied by service on the Commissioner of Motor Vehicles under 12 V.S.A. § 892 in a situation where the complaint alleged conduct attributable only to the true defendant, the amended complaint in such a case would relate back. Cf. Bashara v. Corliss, 161 Vt. at 5-7, 632 A.2d at 32-34 (Morse, J., dissenting). The final paragraph of the amended rule adapts the final paragraph of former Rule 15(c) to the new provisions.

Reporter’s Notes: This rule is virtually identical to Federal Rule 15 and is the substantial equivalent of previous Vermont practice. Rule 15(a) is similar in effect to the provisions of 12 V.S.A. §§ 1034, 1132 (now superseded); former Chancery Rules 11, 29; and former County Court Rules 13, 14.5, 14.6. The statement in the federal rule that “leave [to amend] shall be freely given when justice so requires” is in accord with prior Vermont practice. See City Electrical Service & Equipment Co. v. Estey Organ Co., 116 Vt. 435, 77 A.2d 835 (1951). Although the rule is silent on the point, the federal courts have recognized that the court’s discretion to grant or deny amendment includes the power to grant it subject to conditions such as the imposition of costs. See 1A Barron & Holtzoff, Federal Practice and Procedure § 445 (Wright ed. 1961). The provision of 12 V.S.A. § 1034 for free amendment before hearing on a motion to dismiss is broadened by Rule 15, under which the federal courts have permitted amendment until the entry of judgment on the motion. See 1A Barron & Holtzoff § 443. Rule 15(b), permitting amendment to conform to the evidence even after judgment when issues not within the pleadings are tried without objection, is consistent with prior Vermont practice. See Brassard Bros., Inc. v. Barre Town Zoning Board, 128 Vt. 416, 264 A.2d 814 (1970). So also is the provision of the subdivision for amendment on objection at the trial in the absence of prejudice to defendant, with a continuance if necessary. See Congdon v. Torrey, 95 Vt. 38, 112 A. 202 (1921); former County Court Rule 14.6. Note that under Rule 15(b) amendment may be allowed after trial of the issues without regard to germaneness of the amendment to the former pleading. Amendment may be allowed at the trial over objection “when the presentation of the merits of the action will be subserved thereby” and there is no prejudice to defendant. The rule thus states a more liberal and pragmatic test than that previously followed in Vermont, where, although the term is defined broadly, the amendment must not state “a new cause of action.” See City Electrical Service & Equipment Co. v. Estey Organ Co., supra. Rule 15(c) imposes a restriction upon amendments under Rule 15(a) that is also less onerous than prior Vermont practice. An amendment that does not arise out of “the conduct, transaction, or occurrence” set forth in the original pleading will be barred if the statute of limitations has run between the date of the pleading and that of the amendment, because such an amendment does not “relate back” to the date of the original pleading. An amendment that does arise out of the same conduct, transaction, or occurrence is not barred. The doctrine of relation back was previously recognized in Vermont practice. See Dana v. McClure, 39 Vt. 197 (1867). The rule differs in two important respects, however: (1) It uses pragmatic terms rather than the technical “cause of action” to state the test for permitting relation back. (2) It applies only to amendments that would be time-barred: other amendments are permitted even if they do state a new claim. See 1A Barron & Holtzoff § 448. This approach in effect uses technicality only when necessary to protect the defendant from real prejudice. The last sentence of the first paragraph of Rule 15(c), in emphasizing a new defendant’s notice and knowledge of the original proceeding within the period of the statute of limitations, is consistent with prior Vermont practice in cases of misnomer. See Russell v. Barre Plywood Co., 116 Vt. 40, 68 A.2d 691 (1949); Hosford v. New York Central & Hudson River R. Co., 47 Vt. 533 (1875). Rule 15(d) is nearly identical to 12 V.S.A. § 1035 (now superseded). The rule, however, includes a provision, added to Federal Rule 15(d) after enactment of the Vermont statute, that permission to file a supplemental pleading may be granted even though the original pleading is defective. This change, intended only to state the result reached under the original federal rule by the better-considered cases, should work no change in Vermont practice.