Neb. Sup. Ct. R. 6-1115

As amended through November 11, 2024

Section 6-1115 - [Effective 1/1/2025] Amended and supplemental pleadings

(a) Amendments In General.

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course no later than:

(A) 30 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 14 days after service of a responsive pleading or 14 days after service of a motion under § 6-1112(b), (e), or (f), whichever is earlier. When a responsive pleading is required from multiple parties, the 14-day period commences on service of the first responsive pleading or motion under § 6-112(b),(e),or (f).

(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 grant leave when justice so requires.

(3) Time to Respond. 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 14 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 by 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 them 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. Relation back of amendments is governed by Neb. Rev. Stat. § 25-201.02.

(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, 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 for relief or a defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.

Neb. Sup. Ct. R. 6-1115

Amended November 13, 2024, effective 1/1/2025.

COMMENTS TO § 6-1115

[1] Subpart (a)(1) allows a party to amend its pleading once as a matter of course, without the need to obtain leave of court or the consent of the opposing party. The 2024 Amendments made changes to the time for amending as a matter of course. The purpose of the changes is to give plaintiffs (and other parties asserting claims) the opportunity to amend their pleadings to address issues raised by an answer or by a motion to dismiss, a motion for a more definite statement, or a motion to strike. Giving plaintiffs that opportunity may help to move the case forward more efficiently and avoid the need for the court to rule on some or all the motions. The changes were modeled on Rule 15(a)(1) of the Federal Rules of Civil Procedure but set a shorter time period than the federal rules do.

[2] Cases may involve multiple parties, with some defendants appearing and serving pleadings or motions earlier than others. In those cases, the time period for amending as a matter of course for all parties begins to run when the first responsive pleading or § 6-1112(b), (e), or (f) motion is served.

[3] Subpart (a)(3) provides that unless the court orders otherwise, the responsive pleading to an amended pleading must be served within the time remaining to respond to the original pleading or 14days after service of the amended pleading, whichever is longer. The 2024 Amendments increased the number of days from 10 to 14 as part of the general resetting of time periods in multiples of 7. The reason for resetting the time periods is discussed in Comment [1] on § 6-1112.

[4] The original title of subpart (b) was "Amendments to Conform to the Evidence." The subpart provided, among other things, that an amendment was not necessary when the issues were tried by the express or implied consent of the parties. The most common scenario of implied consent is that of a party failing to object when the opposing party offers evidence that is uniquely relevant to an unpled issue.

[5] It was unclear whether the implied consent provisions applied to summary judgment motions or were instead limited to trials. The issue was raised but not decided in Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809 (2006). The 2024 Amendments answer the question. The amendments changed the title of subpart (b) to "Amendments During and After Trial" and restructured the subpart to make it clear that the provisions only apply to objections made or to consent given during trial.