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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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Last modified: November 10, 2007