Motion to Amend (Litigation Checklist)

This motion to amend a complaint checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- Confer & certification pursuant to C.R.C.P. 121 1-15(8)
- Set forth legal standard (see case law, below)
- If any applicable statute of limitation has run, set forth the basis for the amendment relating back per Rule 15(c) (see below)
- Explain claims/counter-/cross-claims to be added, and explain why they were not included in initial pleadings
- Attach proposed amended complaint/counter-/cross-claims
- Request court to grant motion and accept proposed amended complaint as filed
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Case Law, Thoughts & Best Practices:
- Consider relation back:  Rule 15(c) states that, for purposes of the statute of limitations, "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading."  If the amendment changes the party against whom a claim is asserted, it still relates back if the party being brought in to the lawsuit "(1) Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that,m but for a mistake concerning the identity of the party, the action would have been brought against him."  The US Supreme Court recently construed the nearly identical federal rule in Krupski v. Costa Crociere, S.p.A. (--- U.S. ----, decided June 7, 2010), holding that relation back turns on what the party to be added knew or should have known, not on the amending party's knowledge or timeliness in seeking amendment.
- Rule 15(a) of the Colorado Rules of Civil Procedure provides that a party may amend its pleadings by leave of court and that such “leave shall be freely given when justice so requires.” See also Stuart v. Frederick R. Ross Investment Co., 773 P.2d 1107, 1110 (Colo. App. 1988) (“Only if an opposing party can demonstrate prejudice to it . . . is the denial of a motion to amend appropriate.”), cert. denied (1989).
- Colorado law allows an amendment of the pleadings “at any stage of the litigation process so long as undue delay does not result and other parties are not prejudiced by such amendments.” Nelson v. Elway, 971 P.2d 245, 249 (Colo. App. 1998) (allowing an amended pleading after remand from appeals process).
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This motion to amend complaint checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.