Attorney-at-Law

“EMBODIMENT OF EVERYTHING THAT’S EXCELLENT”

In Uncategorized on 11/06/2020 at 11:59

Judge Morrison may indeed reincarnate Sir W. S. Gilbert’s Lord Chancellor, but today he approves the embodiment of a proposed amended petition in the motion to amend, flatly contradicting Rule 41(a), in Debra Hall, Docket No. 15954-19, filed 11/5/20.

Don’t get me wrong. I think that requiring a proposed amendment to a pleading to be lodged, while the motion to amend those pleadings is filed separately, is nonsensical.

Suppose I want to oppose the motion. Under Rule 41(a), in my opposition papers, I have to flip-flop page and paragraph references between motion and proposed amendment, when quoting specific allegations that I claim prejudice me, or otherwise undermine the motion. And the movant, if permitted to reply, and the Judge or STJ deciding the motion, must do likewise.

In State Court here in Excelsior-land, we embody the amendment in the motion, and have done, AFAIK for the past fifty-three years, with no ill effects. And I can find no requirement of like tenor with Rule 41(a) in the FRCP.

Of course, I’m always glad to learn. If someone can tell me a rational reason why embodying the proposed amended pleading in the motion for leave to amend works a hardship on court or litigant, I will be pleased to withdraw any objection of mine.

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