Del. R. Ch. Ct. 15

As amended through November 14, 2024
Rule 15 - Amended and Supplemental Pleadings
(a) Amendments Before Trial.
(1)Amendments as a Matter of Course. A party may amend the party's pleading once as a matter of course:
(A) at any time before a responsive pleading is served; or
(B) if the pleading is one to which no responsive pleading is required and the action has not been set for trial, no later than 20 days after the pleading is served.
(2)Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the Court's leave. The Court should freely give leave when justice so requires.
(3)Form of Amendments. A party must file an amended pleading with the Court, even if the Court has granted a motion for leave to file the amended pleading. A party filing an amended pleading must also file a document indicating plainly how the amendment differs from the pleading that it amends.
(4)Effect of an Amended Pleading on Other Parties' Claims. An amended pleading has no effect on another party's counterclaims, crossclaims, or third-party claims, which are preserved and do not need to be re-filed.
(5)Time to Amend After Certain Motions and Consequence of Not Amending.
(A) If a party wishes to amend the party's complaint in response to a motion to dismiss under Rules 12(b)(6) or 23.1, the party must amend the party's complaint-or seek leave to amend-either:
(i) before the party's response to the motion is due; or
(ii) if the case has been transferred from another court, within 30 days after the transfer, even if the party responded to the motion in the other court.
(B) If a party neither amends nor moves to amend by the time set forth in Rule 15(a)(5)(A), a dismissal under Rule 12(b)(6) or 23.1 will be with prejudice- but only as to the named party-unless the Court for good cause shown dismisses the complaint without prejudice.
(6)Time to Respond to Amended Pleading. Unless the Court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 10 days after service of the amended pleading, whichever is later.
(b) Amendments During and After Trial.
(1)Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The Court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the Court that the evidence would prejudice that party's action or defense on the merits. The Court may grant a continuance to enable the objecting party to meet the evidence.
(2)For Issues Tried by Consent. When an issue not raised by the pleadings is tried with the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move-at any time, even after judgment-to amend the pleadings to conform to the evidence and to raise an unpled issue. But failure to amend does not affect the result of the trial of that issue.
(c) Relation Back of Amendments. An amendment to a pleading relates back to the date of the original pleading when:
(1) the law that provides the applicable statute of limitations allows relation back;
(2) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading; or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(2) is satisfied and, within 120 days of the filing of the complaint, or such additional time the Court allows for good cause shown, the party to be brought in by amendment:
(A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits; and
(B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
(d) Supplemental Pleadings. On a motion, the Court may permit a party to serve a supplemental pleading setting out any transaction, occurrence or event that happened after the date of the pleading to be supplemented. The Court may permit supplementation even though the original pleading is defective in stating a claim or defense. If the Court permits the supplemental pleading, the opposing party must respond within 10 days after service of the pleading.

Del. R. Ch. Ct. 15

Amended May 31, 2024, effective 6/14/2024; amended July 12, 2024, effective 7/12/2024.

Comment

In 2024, Rule 15 was revised to align its language in certain respects with Federal Rule of Civil Procedure Rule 15, while maintaining the Court's unique approach to (1) subsequent pleadings embodied in former Rule 15(aaa); (2) filing the amended pleading as a separate, signed, and verified docket entry; and (3) the 120-day timeframe in former Rule 15(c)(3). Except as noted, no substantive changes in the interpretation of the rule were intended by these stylistic changes.

The revision deviates from both the Federal Rules and the prior Rule in the following substantive respects:

First, the rule regarding form of amendments (former Rule 15(aa) and now Rule 15(a)(3)) was revised to conform to the current practice of filing a separate blackline reflecting any changes.

Second, the rule regarding time to amend after certain motions (former Rule 15(aaa) and now Rule 15(a)(5)) was revised in response to Otto Candies, LLC v. KPMG, LLP, 2019 WL 1856766 (Del. Ch. Apr. 25, 2019), to allow 30 days after transfer from another court for a party to determine whether to amend or stand on their pleading.

Finally, a rule regarding the effect of an amended pleading on other parties' claims (Rule 15(a)(4)) was added to clarify that (1) a complainant cannot moot a counterclaim, crossclaim, or third-party claim by amending its complaint; (2) one does not waive a counterclaim, crossclaim, or third-party claim by failing to assert it in an answer to an after filed amended complaint; and (3) a counterclaim, crossclaim, or third-party claim remains extant until dismissed.

As a result of the abrogation of Rule 13(f), an amendment to add a counterclaim is now governed only by Rule 15.