IntroductionThe Federal Rules of Civil Procedure (FRCP) can be intricate and confusing, especially when it comes to the interplay between various rules. Few aspects of civil litigation present potential pitfalls such as amending and supplementing pleadings.No matter how perfect a pleading may have been when it was filed, changing circumstances and newly emerging facts often require litigants to amend or supplement pleadings after filing. FRCP 15 establishes the guidelines for how and when litigants can amend and supplement pleadings in a pending case.In this post, we’ll define FRCP 15 in more detail, explain what it requires, and explore how the 2015 amendments to FRCP 4 affect FRCP 15. Then, we’ll talk about when to apply FRCP 15 versus FRCP 21 when adding or dropping parties. Finally, we’ll share our top four ways to efficiently prepare for trial and explain how technology can help.ContentsWhat is FRCP 15 and what does it allow?Amendments before trialAmendments during and after trialRelation back of amendmentsSupplemental pleadingsHow do the 2015, 2016, and 2017 amendments to FRCP 4 affect FRCP 15? Adding and dropping parties: Does FRCP 15 or FRCP 21 apply? 4 tips for efficient trial preparation Technology can help you tell a compelling storyWhat is FRCP 15 and what does it allow?FRCP 15 is a shorthand name for Rule 15 of the Federal Rules of Civil Procedure, which allows parties to amend or supplement pleadings they have a

Id. at 1978. As a result of the holding in Carter, the First Circuit released an unpublished decision on December16, 2015, ruling that a qui tam relator could cure a first-to-file jurisdictional defect by supplementing his complaint under FRCP 15(d), where the previously pending action had been settled and dismissed while the relator’s appeal was pending. United States ex rel. Gadbois v. PharMerica Corp., No. 14-2164, 2015 U.S. App. LEXIS 21841 (1st Cir. R.I. Dec. 16, 2015).

In In re IndyMac Mortgage-Backed Securities Litigation, No. 11-2998-CV, 2013 WL 3214588 (2d Cir. June 27, 2013), the United States Court of Appeals for the Second Circuit held that the tolling rule established by the United States Supreme Court in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), which suspends the applicable statute of limitations for putative class members upon the commencement of a class action, does not apply to the three-year statute of repose contained in Section 13 of the Securities Act of 1933 (“1933 Act”), 15 U.S.C. § 77m. The Court also held that the “relation back” doctrine of the Federal Rule of Civil Procedure 15(c) does not permit putative class members to intervene in the class action as named parties to revive claims that were previously dismissed for want of jurisdiction. This decision thus holds that litigants cannot circumvent Section 13’s statute of repose for 1933 Act claims by invoking American Pipe or Rule 15(c).

Id. at 1978. As a result of the holding in Carter, the First Circuit released an unpublished decision on December 16, 2015, ruling that a qui tam relator could cure a first-to-file jurisdictional defect by supplementing his complaint under FRCP 15(d), where the previously pending action had been settled and dismissed while the relator’s appeal was pending. United States ex rel. Gadbois v. PharMerica Corp., No. 14-2164, 2015 U.S. App. LEXIS 21841 (1st Cir. R.I. Dec. 16, 2015).

The Trademark Trial and Appeal Board recently examined the distinction between applications filed under Section 1(a) and Section 1(b) of the Trademark Act in determining whether the issue of lack of bona fide intent to use was tried by consent under Federal Rule of Civil Procedure 15(a). In Hole In 1 Drinks, Inc. v. Lajtay, the Board found that an individual’s underlying application based on Section 1(b) was void ab initio because the individual, a co-founder of Hole-In-One Drinks, LLC, lacked an intent to use the HOLE IN ONE mark himself as of the filing date of the application.

Whereas the former limits the availability of remedies and may be subject to equitable tolling, the latter creates a substantive right protecting a party from liability for certain causes of action after a specific cut-off date and therefore is “subject [only] to legislatively created exceptions, and not to equitable tolling[.]” IndyMac, at 11-12 (citations and quotations omitted). The Second Circuit also held that members of a putative class, who are not named as parties in the class complaint, cannot use Federal Rule of Civil Procedure 15(c)’s “relation back” doctrine to revive untimely claims that were dismissed on jurisdictional grounds.The issues presented in IndyMac arose from two separate putative class actions, commenced by the Police and Fire Retirement System of the City of Detroit (“Detroit PFRS”), on the one hand, and the Wyoming State Treasurer and the Wyoming Retirement System (the “Wyoming entities”), on the other hand, alleging that IndyMac MBS, Inc. and certain of its officers, directors, and underwriters made fraudulent misrepresentations and omissions in the offering and sale of financial instruments known as mortgage pass-through certificates, which plaintiffs and other putative class members had purchased.

court adopted the special master’s recommendation. Still normal, okay? But, but, but: “Somehow, for reasons that the record does not make clear, within the span of two weeks the MDL Court entered a conditional remand order, remanding Hall and 21 other cases to their respective transferor courts.” MDLs sometimes offer efficiencies, sometimes offer inanities, and sometimes offer insanities.As The Pretenders sang, the Hall case went “back to Ohio.” The distributors wanted out of the case, argued that the earlier dismissal of them for fraudulent joinder was law of the case, and argued that the plaintiff’s filing of the Second Amended Complaint bringing the distributors back into the case was “an end-run around the fraudulent joinder ruling that used an administrative housekeeping order in the MDL as cover for an improper amendment.” The plaintiff argued that he had played fair, had complied with the MDL court’s scheduling order, that the pleadings were now closed, and that, in any event, Fed. R. Civ. P. 15’s “liberal amendment standard” saved the amendment and kept the distributors in the case. Did inclusion of the distributors destroy federal jurisdiction? Yes, of course it did. That was the point all along.We cannot decide whether this scenario would make for a really good or really bad law school exam.The remand court, the Northern District of Ohio, cut to the heart of the matter by identifying the controlling rule/statute as not Rule 15, but, instead, the MDL statute, 28 U.S.C. §1447. Specifically, section 1447(e) governs procedure in federal courts after removal of a case from state court. It provides as follows: “If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.” Thus, the MDL statute gave MDL judges broader discretion to deny such amendments, replacing the usual Rule 15 “freely granted” standard. In exercising its discre

Noting that the complaint’s only remaining deficiency was the failure to allege copyright registration, the First Circuit stated that the district court should not have dismissed the copyright claim with prejudice: “Generally, when a plaintiff’s claim is dismissed for failing to satisfy a pre-suit requirement, the dismissal should be ‘without prejudice’ when the plaintiff may be able to satisfy the requirement in the future.” Cortes-Ramos argued that he should have been allowed to supplement his complaint once the Copyright Office issued a registration for his music video, per FRCP 15(d). Agreeing that “this case appears to be a candidate for a Rule 15(d) supplement,” the Court remanded the case to the district court for consideration of whether Cortes-Ramos should be allowed to supplement his complaint under Rule 15(d) or required to file a new action now that his copyright registration has been issued. Of the Federal Circuit, sitting by designation.

llowing:Whether the court of appeals erred in holding that, even if the Patent Trial and Appeal Board exceeds its statutory authority in instituting an IPR proceeding, the Board's decision whether to institute an IPR proceeding is judicially unreviewable.Whether the court of appeals erred in holding that, even if the Board's final written decision in an IPR proceeding readdresses its own earlier determination that it had authority to institute the proceeding, the Board's determination that it had such authority is still judicially unreviewable.Cert. petition filed 12/29/15. Petition dismissed – Rule 46, 2/9/16.CAFC Opinion, CAFC ArgumentApls South, LLC v. The Ohio Willow Wood Company, No. 15-567Questions Presented:This case presents three related questions for review:1. When post-complaint events establish plaintiff's prudential standing, may plaintiff cure a prudential standing defect existing when the original complaint was filed by filing a supplemental complaint in accordance with Fed. R. Civ. P. 15(d), or must it file a new case to assert its claim for relief?2. If a district court exercises its discretion to allow a supplemental complaint pursuant to Fed. R. Civ. P. 15(d), does the supplemental complaint become the operative complaint from which plaintiff's prudential standing to bring the action is determined?3. Where an exclusive licensee acquires all substantial rights in a patent after bringing an infringement action, and it files a supplemental complaint, pursuant to Fed. R. Civ. P. 15(d), after acquiring those rights, does the exclusive licensee have prudential standing to proceed with a patent infringement action in only its name, when it did not own all substantial rights in the patent when it originally brought the infringement action?Cert. petition filed 10/29/15, conference 1/15/16. Petition denied 1/19/16.CAFC Opinion, CAFC ArgumentArunachalam v. JPMorgan Chase & Co., No. 15-691Questions Presented:1. Is the Court of Appeals for the Federal Circuit (“CAFC”) permitted to

Other violations that plaintiff cites-sexual harassment, discrimination on the basis of his sex, and retaliation for engaging in protected activity-are adequately alleged under circuit standards. Court also erred by dismissing before plaintiff had full 21-day period under FRCP15(a)(1) to re-plead without leave of court.Carothers v. County of Cook, 808 F.3d 1140, 128 FEP 784, 32 A.D. Cases 731 (7th Cir. 2015). Panel: BAUER, Flaum, Manion.