Attorney-at-Law

WHY NOT?

In Uncategorized on 02/09/2021 at 17:44

I often echo the words of George Bernard Shaw, as modified by Robert F. Kennedy: “There are those that look at things the way they are, and ask why? I dream of things that never were, and ask why not?”

The thing that never was is the amendment embodied in the motion to amend. At least in US Tax Court. In every other court I have encountered, the embedded amendment (be it complaint, petition, answer, or other pleading) is the accepted method of proceeding.

I have asked the question before. See my blogpost “Technical Fouls,” 10/7/20.

But there is embedding and embedding.

Today I ask the question again, after reading Denise J. Goltz, Docket No. 10012-20, filed 2/9/21. Denise’s proposed amended petition gets tossed because the motion for leave to serve same contained within it the proposed amendment.

Now I understand tossing the embedded amendment if defective in form, that is, trying to effect a piecemeal amendment by adding or eliminating stray allegations at random in the body of the motion, rather than by inserting the entire amended petition as a single document compliant with Rule 23 bodily in the motion or as an attachment thereto. A litigant, be they petitioner, respondent, or intervenor, needs to have one document, with discrete and separately numbered or lettered paragraphs, so as to be able to respond point by point. And the judge needs coherent documents in order to render an order or opinion speedily and efficiently.

Ch J Maurice B (“Mighty Mo”) Foley seems to be saying that in the above-referred-to order.

“‘The amendment to the pleading shall not be incorporated into the motion but rather shall be separately set forth and consistent with the requirements of Rule 23 regarding form and style of papers filed with the Court.’ Stated otherwise, the amendment to the pleading should be set forth in a separate document and lodged at the same time that a motion for leave to amend is filed.” Order, at p. 1.

Maybe my question only applies to lodging, rather than attaching. Is there concern that attaching will confuse a counterparty? Why?

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