I had thought Rule 41(a) prohibited embedding a proposed amendment to a pleading within the motion for leave to amend. But here is Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan apparently hewing an exception for the trusty attorney for Frederick W. Gruber & Ellen N. Gruber, Docket No. 3891-24, filed 5/14/24, whom I’ll call AJ.

AJ filed an amended petition today, approximately three (count ’em, three) weeks after IRS answered. As we all know, Rule 41 (a) says once a responsive pleading has been filed, amendment of one’s previous pleading is permissive, not as-of-right. Moreover, AJ didn’t move separately, but just filed his amendment.

Ch J TBS, generous, gives AJ same-day service.

“…petitioner’s First Amendment to Petition is recharacterized as petitioner’s Motion for Leave to File First Amendment to Petition (Embodying First Amendment to Petition).” Order, at p. 1.

Even better, “…petitioner’s just-referenced Motion for Leave is granted nunc pro tunc as of May 14, 2024, and the First Amendment to Petition is hereby filed as of such date.” Order, at p. 1. Apparently IRS doesn’t care.

Except.

When IRS does, Judge Travis A. (“Tag”) Greaves is willing to listen. See Amgen Inc. & Subsidiaries, Docket No. 15631-22, filed 5/14/24.

“Respondent does not allege that the amendment will cause unfair surprise or prejudice. Instead, he argues that the amendment does not sufficiently set forth the grounds on which petitioner disputes the alternative penalties. Petitioner’s amendment provides fair notice that it plans to contest all of the penalties and the basis for the challenge. Thus, we are satisfied that petitioner’s amendment sufficiently complies with our Rules. Therefore, we will grant petitioner’s Motion for Leave to File First Amendment to Petition.” Order, at p. 1.

And Amgen’s trusty attorneys, all 20 (count ’em, 20) of them, followed the Rule, and lodged their proposed amendment simultaneously with filing their motion.

Taishoff says isn’t it time for Ch J TBS to adopt our NY system, where we embed our proposed amended pleadings within our motions for leave, at least where we have sophisticated litigants and attorneys? I can see not snow-blinding the hapless self-represented with embedded motions for leave, but I can’t think either OCC or Amgen’s trusty and blindingly white-shod attorneys, much less Judge Tag Greaves or Ch J TBS, are unable to deal with the motion as embedded with their exemplary ability.