- 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.Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 NextLast modified: November 10, 2007