Question
Can a civil claim in eastern district court be amended if its over a year and prior to any depositions?
Details
Family filed a civil claim in federal court with two different people involved. We want a new attorney and want to know if can add a claim lets say after 3 years after it happened due to the attorney being negligent . If the original claim states a basic negligent infliction of emotional distress and is not complete for the other party who is being sued, nor does it explain the cause of action "specifically", can the specifications be added after 3 yrs that the claim was not "tolled" but in federal court as supplemental jurisdiction? Is there still time to amend a claim to make it better or to add a claim which is related or make it more specific? Is this malpractice if the atty did not put all the family claims on the suit since the monetary value will be much lower and the retainer was clearly specific to add a certain person to the claim?
Gabriel P. HarvisCivil Rights AttorneyNew York, NY ·
A motion to amend the complaint can be made and the judge is likely to grant it if there is no prejudice to the adverse party. Look at Federal Rule 15. That would allow you to add specificity to the claims. New claims could be added subject to the applicable statute of limitations. The filing of a complaint does not toll the statute of limitations.
Generally, you are always free to seek leave to amend the Complaint. Whether leave will be granted depends on a number of factors. The biggest concern with amending a claim late in the game is whether the statute of limitations has expired or not. As you mentioned, tolling of the statute can sometimes help if the Court agrees that the statute was tolled.
Rule 15(a)(2) of the Federal Rules of Civil Procedure provide that, other than an amendment very early in the case, a pleading may be amended "only with the opposing party's written consent or the court's leave." You are probably unlikely to get the defendant's written consent, but it is at least worth asking. The good news is that that same rule provided, in part, that, "The court should freely give leave when justice so requires."
An amendment will typically be allowed so long as the party that seeks to amend has not unduly delayed; is not acting in bad faith or with an intent to delay; the defendant will not be unduly prejudiced; and the amendment is not futile.
A key inquiry as to whether undue prejudice will result is the degree to which it would delay the final disposition of the action. But even prejudice to the opposing party, by itself, is not sufficient grounds to deny the motion, inasmuch as the prejudice would have to be “undue.”
The burden of showing that there would be substantial prejudice falls upon the party opposing the motion. Thus, some courts have held that there is no prejudice where discovery has not begun.
An important factor for the court to consider is whether denial of the motion will lead to a second action that is substantially similar to the first.
It is impossible for me to try to apply these various factors to your particular situation, because you say very little about the current status of the action, other than that depositions have yet to begin.
As for your question as to whether your current attorney committed malpractice, I am not going to go near that question. A determination as to whether malpractice occurred is a fact-intensive inquiry. There are various reasons why particular claims may not have been interposed, and your brief posting does not allow any of us to know enough to make even the most elementary evaluation.
Good luck to you.
It depends on when you found out about the negligence and whether you had been dutiful in making a determination and inquiry into the facts. It's important to do more than just ask for the time, but show that you could not known about the negligence perhaps due to misrepresentation and/or fraud. You have to have a basis for seeking to amend your claims so long after you filed them.
