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Procedural Standard--Leave To Amend
Rule 41(a) provides in effect that after the pleadings are
closed, “a party may amend a pleading only by leave of Court or
by written consent of the adverse party, and leave shall be given
freely when justice so requires.” Like rule 15(a) of the Federal
Rules of Civil Procedure, from which it is derived, Rule 41(a)
reflects “a liberal attitude toward amendment of pleadings.” 60
T.C. 1089 (explanatory note accompanying promulgation of Rule
41). The U.S. Supreme Court has interpreted the “freely given”
language of the civil rule as follows:
If the underlying facts or circumstances relied upon by
a plaintiff may be a proper subject of relief, he ought
to be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared
reason--such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment,
etc.--the leave sought should, as the rules require, be
“freely given.” * * * [Foman v. Davis, 371 U.S. 178,
182 (1962).]
Accordingly, leave to amend should typically be supported by the
presence of a colorable position and the absence of undue
prejudice. We consider the substantive law and the factual
circumstances underlying respondent’s motion in light of the
foregoing procedural standard.
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Last modified: May 25, 2011