Appeals Regarding Amendments to Pleadings

An order granting or denying leave to amend the pleadings ordinarily is not appealable directly since it is not a final order and may be reviewed on appeal from the final judgment.  Courts have held that an order dismisses a complaint but allows the plaintiff time to file an amended complaint is interlocutory in nature and not a final judgment.  Courts generally resort to such rules to avoid unnecessary delays and confusions.

Rule 58 of the Federal Rules of Civil Procedure stipulate that in order to be a final judgment, the court shall direct that “all relief be denied.”  For instance, in Jung v. K. & D. Mining Co., 78 S. Ct. 764 (U.S. 1958), the court has held that an order of a District Court by which plaintiff’s motion to vacate a previous order dismissing the complaint and granting plaintiff leave to file an amended complaint was denied and by which plaintiff was granted further leave to amend his complaint, did not constitute a final judgment which started the time for appeal running.  The court reasoned that since it did not direct that “all relief be denied,” as required by Rule 58 of the Federal Rules of Civil Procedure, but left the suit pending for further proceedings either by amendment of the complaint or entry of a final judgment; as in the case of an order sustaining a demurrer with leave to amend, another order of absolute dismissal after expiration of the time allowed for amendment was required to make a final disposition of the cause.  An order denying leave to amend a complaint is not a ‘final decision’ within the meaning of 28 U.S.C. § 1291.[i]

Courts have held that leave of court is required to file the cross-claim and appellants could assert the cross-claim only in their answer.  The answer could be amended without leave only within twenty days of service. [ii]

The granting of leave to amend under Fed. R. Civ. P. 15(a) is a matter within the discretion of the trial court.[iii]  In deciding whether to permit amendment, a district court must consider whether the amendment, if allowed, would prejudice the party opposing it.[iv]

While deciding whether the order of the District Court denying leave to amend is appealable, the court may apply the collateral order doctrine. Applicability of the  collateral order doctrine depends upon three tests: “(1) the order must be a final determination of a claim of right separable from, and collateral to, rights asserted in the action; (2) it must be too important to be denied review, in the sense that it presents a serious and unsettled question; and (3) its review cannot, in the nature of the question that it presents, await final judgment because when that time comes, it will be too late effectively to review the . . . order and rights conferred . . . will have been lost, probably irreparably.”[v]

[i] De Nubilo v. United States, 343 F.2d 455 (2d Cir. N.Y. 1965)

[ii] Fed. R.   Civ. P. 15(a)

[iii] Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321 (U.S. 1971)

[iv] Id. at 330-331

[v] In re Cessna Distributorship Antitrust Litigation, 532 F.2d 64, 67 (8th Cir. Mo. 1976)


Inside Appeals Regarding Amendments to Pleadings