Lee B. Arberg and Melissa A. Quinn - Page 15




                                       - 15 -                                         
          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).  As such, it tempers Rules 34(b) and              
          39, which essentially deem waived any issue or affirmative                  
          defense not pleaded.  The U.S. Supreme Court has interpreted the            
          “freely given” language of the rule 15(a) 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).]                                                           
               Respondent’s motion is premised particularly on Rule                   
          41(b)(1), which reads:                                                      
                    (b) Amendments To Conform to the Evidence:  (1)                   
               Issues Tried by Consent:  When issues not raised by 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.  The Court,                  
               upon motion of any party at any time, may allow such                   
               amendment of the pleadings as may be necessary to cause                
               them to conform to the evidence and to raise these                     
               issues, but failure to amend does not affect the result                
               of the trial of these issues.                                          








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