PastPaperHero | Pretrial procedures - Pleadings and amended and supplemental pleadings

Learning Outcomes

This article explains the Federal Rules of Civil Procedure governing pleadings, amended pleadings, and supplemental pleadings for purposes of MBE-style multiple-choice analysis, including:

Identifying which documents qualify as pleadings under Rule 7 and how they differ from motions for timing, amendment, and default issues.
Determining whether a complaint satisfies Rule 8(a)’s jurisdiction, claim, and demand requirements and Rule 9’s heightened pleading standards.
Evaluating answers for proper admissions, denials, and inclusion of compulsory counterclaims, crossclaims, and affirmative defenses to avoid waiver.
Applying Rule 12 to select and sequence motions, recognize when defenses must be raised in the first response, and spot when key defenses have been irrevocably waived.
Applying Rule 11’s certification standards, safe-harbor procedure, and sanctions framework using an objective reasonableness test.
Using Rule 15(a), (b), and (d) to decide when amendments are allowed as of right, when leave should be granted, and when supplemental pleadings are appropriate.
Analyzing relation-back problems under Rule 15(c), including amendments adding new claims or correcting party misidentification after limitations periods expire.
Assessing when failure to plead or otherwise defend properly results in entry of default or default judgment under Rule 55 and when such orders may be set aside.

MBE Syllabus

For the MBE, you are required to understand the federal rules governing the initiation and development of a lawsuit through pleadings, as well as the process for correcting or adding to those pleadings, with a focus on the following syllabus points:

Identify the types of pleadings allowed under the Federal Rules (Rule 7).
Understand the requirements for stating a claim in a complaint (Rule 8(a)).
Analyze requirements for answers, including admissions, denials, counterclaims, crossclaims, and affirmative defenses (Rule 8(b)–(c), Rule 13).
Recognize how defenses and objections are presented and when they are waived (Rule 12).
Apply the certification requirements and sanctions mechanisms of Rule 11.
Distinguish between amendments as a matter of course and amendments by leave of court or consent (Rule 15(a)).
Apply the “relation back” doctrine for amendments changing claims or parties (Rule 15(c)).
Understand the purpose and procedure for supplemental pleadings (Rule 15(d)).
Understand the basics of defaults and default judgments when a party fails to plead (Rule 55).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Under the Federal Rules, which of the following is NOT a required element of a complaint initiating a civil action?
1. A short and plain statement of the grounds for the court's jurisdiction.
2. A short and plain statement of the claim showing the pleader is entitled to relief.
3. A detailed statement of the facts constituting the cause of action.
4. A demand for the relief sought.
A defendant files an answer to a complaint but fails to include the defense of insufficient service of process. Three months later, the defendant seeks leave to amend the answer to add this defense. Will the court likely permit the amendment?
1. Yes, because leave to amend should be freely given when justice so requires.
2. Yes, because the defense relates to a fundamental aspect of due process.
3. No, because the defense was waived by failure to include it in the initial answer or a pre-answer motion.
4. No, because amendments are only permitted within 21 days of serving the original answer.
A plaintiff files a complaint on January 10th for an injury that occurred on January 15th two years earlier. The applicable statute of limitations is two years. On March 1st, after the statute of limitations has run, the plaintiff seeks leave to amend the complaint to add a new claim based on a different negligent act by the same defendant arising from the same accident. Will the amendment relate back?
1. Yes, because the new claim arises from the same conduct, transaction, or occurrence as the original pleading.
2. Yes, because the defendant had notice of the lawsuit before the statute of limitations expired.
3. No, because the statute of limitations on the new claim has expired.
4. No, because amendments adding new claims never relate back.
Which of the following best describes the standard applied by a federal court when determining whether to impose sanctions under Rule 11?
1. Subjective bad faith on the part of the attorney or party.
2. Negligence in conducting the prefiling inquiry.
3. An objective standard of reasonableness under the circumstances.
4. Strict liability for any inaccurate factual or legal assertion.

Introduction

Pleadings are the formal written documents filed with the court that state the parties' claims and defenses. They frame the issues for litigation and provide notice to the parties and the court about the nature of the dispute. The Federal Rules of Civil Procedure (FRCP) govern pleadings in federal court, emphasizing simplicity and notice-giving over the technical requirements of older code pleading systems.

Key rules include:

Rule 7 (Pleadings Allowed; Form of Motions)
Rule 8 (General Rules of Pleading)
Rule 9 (Pleading Special Matters)
Rule 10 (Form of Pleadings)
Rule 11 (Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions)
Rule 12 (Defenses and Objections; When and How Presented)
Rule 13 (Counterclaim and Crossclaim)
Rule 15 (Amended and Supplemental Pleadings)
Rule 55 (Default; Default Judgment)

Key Term: Complaint
The initial pleading filed by a plaintiff that sets forth the claims against the defendant and initiates a lawsuit.

Key Term: Answer
A defendant's principal pleading in response to a plaintiff's complaint, containing admissions, denials, and any affirmative defenses and counterclaims.

Key Term: Pre-answer Motion
A Rule 12 motion (typically under Rule 12(b), 12(e), or 12(f)) filed before the defendant serves an answer, which can raise certain defenses, seek a more definite statement, or move to strike portions of the complaint.

Pleadings vs. Motions: Rule 7

Rule 7(a) specifically lists the pleadings allowed in federal court:

A complaint.
An answer to a complaint.
An answer to a counterclaim designated as a counterclaim.
An answer to a crossclaim.
A third-party complaint (impleader).
An answer to a third-party complaint.
If the court orders one, a reply to an answer.

No other pleading is allowed unless ordered by the court. Importantly, motions are not pleadings. A motion to dismiss under Rule 12(b) or a motion for summary judgment under Rule 56 is a motion, not a pleading. This matters for amendment rules (Rule 15) and for defaults (Rule 55): a timely Rule 12 motion counts as “otherwise defending,” so the defendant is not in default even though no answer has yet been filed.

Form of Pleadings: Rule 10

Rule 10 sets out basic formatting requirements:

Each pleading must include a caption with the court name, a title, a file number, and the names of the parties.
Claims and defenses should be stated in numbered paragraphs, each limited as far as practicable to a single set of circumstances.
Separate transactions or occurrences should be set out in separate counts or defenses if doing so would improve clarity.

These formalities are occasionally tested on the MBE but are less common than substance and timing issues.

Requirements for Pleadings

The Complaint (Rule 8(a))

The complaint is the initial pleading that commences the action. Under Rule 8(a), it must contain three essential elements:

A short and plain statement of the grounds for the court’s subject matter jurisdiction.
A short and plain statement of the claim showing that the pleader is entitled to relief.
A demand for the relief sought.

1. Jurisdictional Statement

The complaint must identify the basis for federal subject matter jurisdiction:

Federal question jurisdiction (arising under the Constitution, laws, or treaties of the United States).
Diversity jurisdiction (complete diversity plus amount in controversy exceeding $75,000).
Supplemental jurisdiction is usually not pleaded as a separate basis; instead, the primary claim’s jurisdictional basis is alleged, and related claims are included as arising from the same case or controversy.

The jurisdictional statement need not be elaborate, but it must identify why a federal court is the correct forum.

2. Stating the Claim – Plausibility Standard

The complaint must contain a short and plain statement of the claim showing the pleader is entitled to relief. This embodies notice pleading but, after Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, it must satisfy a plausibility standard:

The complaint must contain enough factual matter, accepted as true, to state a claim to relief that is plausible on its face.
Conclusory statements (e.g., “Defendant was negligent”) are not enough by themselves.
The plaintiff must allege facts that, if true, allow a reasonable inference that the defendant is liable (e.g., “Defendant drove through a red light at 50 mph in a 25 mph zone and struck Plaintiff in the crosswalk”).

Courts ignore pure legal conclusions and test whether the remaining factual allegations plausibly show entitlement to relief.

3. Demand for Relief

The complaint must include a demand for the relief sought, which may include:

Compensatory and punitive damages.
Injunctive or declaratory relief.
Costs and attorneys’ fees, when allowed by statute or contract.
Alternative or inconsistent forms of relief (e.g., damages in the alternative to rescission).

In federal court, the amount of damages need not be stated with precision, except that in diversity cases the amount alleged can matter for subject matter jurisdiction.

Special Pleading: Rule 9

While Rule 8(a) sets the general standard, Rule 9 requires heightened specificity for certain issues often tested:

Fraud or mistake must be pleaded “with particularity” – the who, what, when, where, and how of the alleged fraud or mistake.
Special damages (damages that would not ordinarily be expected from the wrong, such as lost profits from a particular contract) must be specifically stated.
Conditions precedent may be alleged generally, but a denial of performance or occurrence of a condition precedent must be made with particularity.

Failure to comply with Rule 9 can support a motion for a more definite statement or dismissal.

Responsive Pleadings: The Answer (Rule 8(b))

The answer is the defendant's primary response to the complaint. In responding to a pleading, a party must:

State in short and plain terms its defenses to each claim asserted.
Admit or deny the allegations asserted against it by the opposing party.

Timing of the Answer

Under Rule 12(a), the defendant must serve an answer:

Within 21 days after being served with the summons and complaint, or
Within 60 days after the request for waiver of service was sent (90 days if outside the United States) if the defendant waives formal service.
If the defendant makes a Rule 12 motion and it is denied or postponed, the answer is due 14 days after notice of the court’s action.

Failure to answer or otherwise defend on time can lead to default (discussed below).

Admissions and Denials

In the answer, the defendant must respond to each numbered allegation in the complaint by:

Admitting the allegation.
Denying the allegation.
Stating that the party lacks knowledge or information sufficient to form a belief about the truth of an allegation (which has the effect of a denial).

Denials must fairly respond to the substance of the allegation. A party may make:

A general denial (denying all allegations), although this is rare and risky.
Specific denials addressing each allegation individually.
Qualified denials admitting part of an allegation and denying the rest.

Any allegation—other than those relating to the amount of damages—not denied is deemed admitted.

Affirmative Defenses (Rule 8(c))

Key Term: Affirmative Defense
A defense that does not merely negate an element of the plaintiff’s claim but instead introduces new facts or legal theories that, if proven, avoid or mitigate liability even if the plaintiff’s allegations are true (e.g., statute of limitations, res judicata, assumption of risk).

In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

Statute of limitations.
Statute of frauds.
Res judicata and collateral estoppel.
Comparative or contributory negligence.
Assumption of risk.
Release, waiver, accord and satisfaction.
Fraud, duress, estoppel.

Failure to plead an affirmative defense generally results in waiver of that defense, although courts sometimes allow late assertion if there is no unfair prejudice and the issue has been tried by consent.

A classic MBE trap is the defendant who files an answer denying all factual allegations but omits the statute of frauds defense, then files a post-answer motion to dismiss based on the statute of frauds. Because statute of frauds is an affirmative defense that should have been pleaded, the defense is waived unless the defendant successfully amends the answer.

Counterclaims and Crossclaims (Rule 13)

Pleadings also contain counterclaims and crossclaims, which are frequently tested.

Key Term: Compulsory Counterclaim
A claim that a defending party has against an opposing party, arising out of the same transaction or occurrence as the opposing party’s claim, that must be stated in the responsive pleading or it is barred.

A compulsory counterclaim arises out of the same transaction or occurrence as the plaintiff’s claim and must be asserted in the answer, or it is forfeited.
A permissive counterclaim does not arise from the same transaction or occurrence; it may be asserted in the answer but can also be brought later in a separate lawsuit (subject to jurisdictional requirements).
A crossclaim is a claim by one party against a coparty (e.g., one defendant against another) arising out of the same transaction or occurrence as the original action or a counterclaim. Crossclaims are always permissive, not compulsory.

Counterclaims and crossclaims are pleadings and thus must satisfy Rule 8’s requirements.

Rule 12 Defenses and Waiver

Rule 12 governs how defenses and objections are presented—by motion or in a responsive pleading—and sets strict rules on when certain defenses must be raised.

Key Term: Waiver
The loss of a procedural right or defense by failing to assert it in the manner or at the time required by the rules (for example, losing a personal jurisdiction defense by omitting it from the first Rule 12 response).

Defenses That May Be Raised by Motion (Rule 12(b))

Rule 12(b) allows a defendant to raise seven defenses by motion before answering:

Lack of subject matter jurisdiction (12(b)(1)).
Lack of personal jurisdiction (12(b)(2)).
Improper venue (12(b)(3)).
Insufficient process (defects in the summons itself) (12(b)(4)).
Insufficient service of process (12(b)(5)).
Failure to state a claim upon which relief can be granted (12(b)(6)).
Failure to join a required party under Rule 19 (12(b)(7)).

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint, applying the Twombly/Iqbal plausibility standard. The court considers the complaint, attachments, and matters properly subject to judicial notice; if the motion relies on matters outside the pleadings and the court considers them, the motion is treated as one for summary judgment.

Rule 12 also authorizes:

A motion for a more definite statement (Rule 12(e)) when the complaint is so vague that a response cannot reasonably be framed.
A motion to strike (Rule 12(f)) redundant, immaterial, impertinent, or scandalous matter from a pleading.

Consolidation and Waiver of Rule 12 Defenses (Rules 12(g) and 12(h))

Rule 12(g) and 12(h) establish important waiver rules that are repeatedly tested:

If a party makes a pre-answer Rule 12 motion and omits any defense listed in Rule 12(b)(2)–(5) from that motion, the omitted defense is waived.
If no pre-answer motion is made, defenses under Rule 12(b)(2)–(5) must be raised in the answer, or they are waived.

Specifically:

The defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process must be raised in the defendant’s first Rule 12 response (either a Rule 12 motion or the answer). If they are not, they are forever waived.
The defenses of failure to state a claim (12(b)(6)) and failure to join a required party (12(b)(7)) may be raised later—by motion for judgment on the pleadings, in the answer, or at trial.
Lack of subject matter jurisdiction (12(b)(1)) can be raised at any time, by any party, or by the court on its own; it is never waived.

Exam Trap

A defendant first moves to dismiss for failure to state a claim (12(b)(6)), then later files a second motion to dismiss for lack of personal jurisdiction (12(b)(2)). Under Rule 12(g) and 12(h)(1), the personal jurisdiction defense is waived because it was omitted from the first Rule 12 motion.

Interaction with the Answer

A defendant may choose:

To file a pre-answer motion under Rule 12(b), or
To skip pre-answer motions and assert defenses in the answer.

Either way, all Rule 12(b)(2)–(5) defenses must be included in that first response. After that point, amendment of the answer to add such defenses is generally futile because the defenses have been waived by rule.

Failure to State a Claim: 12(b)(6) vs. 12(c)

A Rule 12(b)(6) motion is filed before an answer; a Rule 12(c) motion for judgment on the pleadings can be filed after the pleadings are closed.
Both test the legal sufficiency of the complaint and apply similar standards; both may be used to assert a failure-to-state-a-claim defense.

Signing Pleadings: Rule 11 Certifications and Sanctions

Rule 11 applies to every pleading, written motion, and other paper filed with the court (with limited exceptions, such as discovery papers, which are governed by Rules 26–37). It requires that each such document be signed by at least one attorney of record (or by an unrepresented party).

By signing or later advocating a paper, an attorney or unrepresented party makes several representations.

Key Term: Rule 11
A rule requiring that pleadings, motions, and other papers be signed, certifying that, after reasonable inquiry, the filing is not for an improper purpose, that legal contentions are warranted, and that factual contentions and denials have or are likely to have evidentiary support; it authorizes sanctions for violations.

Key Term: Safe Harbor (Rule 11)
The 21-day period after service of a Rule 11 sanctions motion during which the challenged paper may be withdrawn or corrected; if it is withdrawn or corrected within this time, the motion must not be filed with the court.

Rule 11(b) Certifications

By presenting a paper to the court, the filer certifies, to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that:

The paper is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
The legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law.
The factual contentions have evidentiary support or, if specifically identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
The denials of factual contentions are warranted on the evidence or, if specifically identified, are reasonably based on belief or a lack of information.

The standard is objective reasonableness under the circumstances, not subjective good faith.

Sanctions Under Rule 11(c)

If Rule 11(b) is violated, the court may impose sanctions on the attorney, law firm, or party responsible. Key points for the MBE:

Sanctions are discretionary, not mandatory.
The primary purpose is deterrence, not compensation.
Sanctions may include:
- Nonmonetary directives (e.g., ordering a lawyer to attend a legal education program).
- A penalty paid to the court.
- Payment to the other party of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.

Sanctions on motion:

A party seeking Rule 11 sanctions must serve the motion on the offending party but not file it.
The movant must wait 21 days (the safe harbor period). If the challenged paper is withdrawn or corrected within that time, the motion must not be filed.
Only if the paper is not withdrawn or corrected may the motion be filed.

Sanctions on the court’s initiative:

The court may issue an order to show cause why conduct has not violated Rule 11.
The safe harbor procedure does not apply when the court acts on its own, but monetary sanctions on the court’s initiative are limited in certain ways (for example, they cannot be imposed after a voluntary dismissal or settlement).

The MBE frequently tests:

The requirement of an objective standard.
The safe harbor mechanism.
That Rule 11 does not apply to discovery (which is governed by separate rules).

Amended and Supplemental Pleadings (Rule 15)

Rule 15 governs how parties can amend their pleadings and when those amendments relate back to the date of the original pleading for statute of limitations purposes. It also covers supplemental pleadings based on events that occur after the original pleading.

Key Term: Relation Back Doctrine
A doctrine under Rule 15(c) allowing an amended pleading to be treated as though it were filed on the date of the original pleading, primarily to avoid statute of limitations problems when claims or parties are added after the limitations period has expired.

Key Term: Supplemental Pleading
A pleading that sets forth transactions, occurrences, or events that happened after the date of the pleading being supplemented.

Amendments Before Trial

Amendment as a Matter of Course (Rule 15(a)(1))

A party may amend its pleading once as a matter of course (without leave of court or consent) within:

21 days after serving it, or
If the pleading is one to which a responsive pleading is required (e.g., a complaint), 21 days after service of:
- A responsive pleading, or
- A motion under Rule 12(b), 12(e), or 12(f),

whichever is earlier.

This right belongs separately to each party with respect to its own pleadings. For example, the defendant can amend an answer once as of right within 21 days after serving it.

Worked Example 1.1

Plaintiff filed a complaint against Defendant on June 1st. Defendant filed and served its answer on June 20th. On July 15th, Plaintiff realized she omitted a relevant factual allegation and wished to amend her complaint. Can Plaintiff amend her complaint as a matter of course?

Answer:
No. Plaintiff could amend once as a matter of course within 21 days after Defendant served its answer. That period expired on July 11th (21 days after June 20th). Since it is now July 15th, Plaintiff must obtain Defendant's written consent or seek leave of court to amend.

In all other cases, a party may amend its pleading:

With the opposing party's written consent, or
With the court's leave.

The rule states that the court should “freely give leave when justice so requires.” Courts consider factors such as:

Undue delay.
Bad faith or dilatory motive.
Repeated failure to cure deficiencies by previous amendments.
Undue prejudice to the opposing party.
Futility of amendment (e.g., the amended claim would still be subject to dismissal).

On the MBE, unless facts clearly show serious prejudice, bad faith, or futility, assume leave to amend will be granted.

Worked Example 1.3

A defendant timely answers a complaint but forgets to plead the statute of frauds as an affirmative defense. Two weeks later, before any significant discovery has occurred, the defendant moves to amend the answer to add the statute of frauds defense. The plaintiff objects, arguing waiver. How should the court rule?

Answer:
The statute of frauds is an affirmative defense that should be pleaded in the answer. Technically, omitting it may result in waiver. However, because the defendant promptly sought leave to amend, there has been no undue delay, and the plaintiff has not shown prejudice, the court should likely grant leave to amend under Rule 15(a)(2), and the defense will be allowed.

Amendments During and After Trial (Rule 15(b))

Rule 15(b) allows amendments:

To conform the pleadings to the evidence when issues not raised by the pleadings are tried by the parties’ express or implied consent.
Even after judgment, to reflect issues actually litigated.

Courts will not allow an amendment that introduces a new claim or defense when the opposing party had no notice and would be prejudiced because they lacked an opportunity to prepare.

Relation Back of Amendments (Rule 15(c))

Rule 15(c) determines when an amendment “relates back” to the date of the original pleading, which is important when the statute of limitations has expired between the original filing and the amendment.

An amendment relates back when:

The law that provides the applicable statute of limitations allows relation back; or
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
The amendment changes the party or the naming of the party against whom a claim is asserted, if both:
- The amendment arises out of the same conduct, transaction, or occurrence; and
- Within the period provided by Rule 4(m) for serving the summons and complaint (90 days after filing), the party to be brought in by amendment:
  - Received such notice of the action that it will not be prejudiced in defending on the merits, and
  - Knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

Relation Back for New Claims (Same Party)

When the amendment only changes or adds claims against an existing party, the key question is whether the new claim arises out of the same conduct, transaction, or occurrence as the original claim.

If it does, relation back is allowed, and the amendment is treated as filed on the date of the original complaint.
If it arises from different events, relation back is not allowed, and the claim may be time-barred.

Worked Example 1.4

Plaintiff timely files a complaint for negligence arising from a car accident, alleging that Defendant ran a red light. After the statute of limitations expires, Plaintiff seeks to amend to add a new count for negligence based on Defendant’s driving while intoxicated during the same accident. Does the amendment relate back?

Answer:
Yes. Both negligence theories arise from the same accident—the same conduct, transaction, or occurrence. The amendment changes the legal theory and adds additional facts about Defendant’s conduct but concerns the same event. Under Rule 15(c)(1)(B), the amendment relates back to the original filing date.

Changing Parties and Relation Back (Rule 15(c)(1)(C))

Relation back is more demanding when the amendment changes the party or the naming of the party:

The new claim must arise from the same conduct, transaction, or occurrence as the original complaint.
The new party must have received notice of the action within the Rule 4(m) service period (90 days after filing) such that the party will not be prejudiced in defending on the merits.
The new party must have known or should have known that, but for a mistake concerning the proper party’s identity, the action would have been brought against it.

The Supreme Court in Krupksi v. Costa Crociere clarified that the relevant question is what the new party knew or should have known—not whether the plaintiff acted reasonably in making the mistake.

Typical exam patterns include:

Misnaming a defendant (e.g., suing a corporate affiliate instead of the correct corporation).
Suing an individual when the claim should have been against a governmental entity, or vice versa.

Pure “lack of knowledge” (John Doe defendants) is not a “mistake” for Rule 15(c)(1)(C) purposes in many courts, and may not support relation back for a newly identified party.

Worked Example 1.5

Plaintiff is injured on a cruise ship operated by CruiseCo Ltd. Within the limitations period, Plaintiff mistakenly sues “CruiseCo USA, Inc.” (a marketing affiliate), alleging negligence in ship operations. After the limitations period expires but within 90 days of filing, CruiseCo Ltd. receives notice of the suit and understands that it, not CruiseCo USA, operated the ship. Plaintiff moves to amend to substitute CruiseCo Ltd. for CruiseCo USA. Does the amendment relate back?

Answer:
Yes, if the Rule 4(m) notice and mistake conditions are met. The claim arises from the same incident. CruiseCo Ltd. received notice within the 90-day Rule 4(m) period and knew or should have known that, but for Plaintiff’s mistake regarding which corporate entity operated the ship, the action would have been brought against it. Under Rule 15(c)(1)(C) and Krupksi, the amendment relates back.

Supplemental Pleadings (Rule 15(d))

On motion and reasonable notice, 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.

Key Term: Supplemental Pleading
A pleading setting forth transactions, occurrences, or events that happened after the date of the pleading being supplemented (distinct from an amended pleading, which corrects or adds to matters existing at the time of the original pleading).

Key points:

Supplemental pleadings are appropriate for new facts that occurred after filing—for example, ongoing breaches, newly incurred damages, or post-filing retaliatory acts.
Leave should be freely given when doing so will facilitate efficient resolution of related disputes.
A supplemental pleading can introduce new claims based on post-filing events if jurisdictional requirements (e.g., same case or controversy) are satisfied.

Worked Example 1.2

Plaintiff sued Defendant for breach of a contract executed on January 1st. The complaint was filed on March 1st. On April 1st, Defendant committed a second, unrelated breach of the same contract. Can Plaintiff add this new breach to the current lawsuit using Rule 15?

Answer:
Plaintiff should seek leave to file a supplemental pleading under Rule 15(d), not an amended pleading under Rule 15(a), because the second breach occurred after the original complaint was filed. A supplemental pleading addresses events happening after the pleading to be supplemented; an amended pleading addresses matters existing at the time of the original pleading but omitted or defectively stated.

Worked Example 1.6

Plaintiff files a complaint alleging that Defendant has continuously discharged pollutants into a river up to the date of filing. Six months later, Defendant continues the discharges, causing additional harm. Plaintiff wants to recover for this additional harm in the same action. What should Plaintiff do?

Answer:
Plaintiff should move to file a supplemental complaint under Rule 15(d) adding the post-filing discharges and resulting damages. Because the new events are part of the same continuing conduct, the court is likely to grant leave.

Defaults and Default Judgments (Rule 55)

Although not themselves pleadings, defaults and default judgments are the procedural consequences of failing to plead or otherwise defend.

Key Term: Default
A notation by the clerk that a party against whom a judgment for relief is sought has failed to plead or otherwise defend within the time allowed by the rules.

Key Term: Default Judgment
A judgment entered against a party who has defaulted, establishing liability and, after proof, the amount of damages or other relief.

Rule 55 distinguishes between entry of default and entry of default judgment:

If a party against whom relief is sought has failed to plead or otherwise defend, and that fact is made to appear, the clerk must enter the party’s default.
After default is entered, the plaintiff may seek a default judgment.

Default judgment by the clerk (Rule 55(b)(1)) is allowed when:

Plaintiff’s claim is for a sum certain or a sum that can be made certain by computation.
The defendant has been defaulted by failing to appear.
The defaulting defendant is not a minor or incompetent.
The amount claimed does not exceed the amount demanded in the pleadings.

In other cases, the court must enter the default judgment (Rule 55(b)(2)), and may hold a hearing to determine damages.

A defendant who has “appeared” (for example, by filing a motion or otherwise indicating an intent to defend) is entitled to 7 days’ notice of the hearing on a default judgment.

Setting aside defaults:

An entry of default may be set aside for “good cause” and, in practice, courts also look for a meritorious defense.
A default judgment may be set aside under Rule 60(b) for reasons such as mistake, excusable neglect, or void judgment (for lack of jurisdiction), but strict time limits apply.

Worked Example 1.7

Defendant is served with a complaint and summons but does nothing. Ninety days later, Plaintiff applies to the clerk for a default judgment for $100,000 on a promissory note that states a principal amount of$ 100,000 with no interest provision. The clerk enters a default judgment for $100,000. Was this proper?

Answer:
Yes. Defendant failed to plead or otherwise defend, so entry of default was proper. Plaintiff’s claim is for a sum certain—the fixed principal amount on the note—so the clerk could enter default judgment under Rule 55(b)(1) without a hearing.

Exam Warning

Be careful to distinguish between:

Rule 12(b) defenses that are waived if not raised in the first response (lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process) under Rule 12(h)(1).
Defenses that can be raised later (failure to state a claim and failure to join a required party) under Rule 12(h)(2).
Lack of subject matter jurisdiction, which is never waived and can be raised at any time under Rule 12(h)(3).

Also distinguish between:

Amendments under Rule 15(a), which correct or expand on facts and claims existing at the time of the original pleading.
Supplemental pleadings under Rule 15(d), which cover post-filing events.
Relation back under Rule 15(c), which determines whether an otherwise time-barred amendment can be treated as timely.

Key Point Checklist

This article has covered the following key knowledge points:

The FRCP limits pleadings to complaints, answers, and specific additional pleadings such as replies when ordered; motions are not pleadings.
Complaints must state grounds for subject matter jurisdiction, a plausible claim for relief, and a demand for judgment (Rule 8(a)); fraud and certain other matters require particularity under Rule 9.
Answers must admit or deny allegations, assert defenses, and include counterclaims and crossclaims when appropriate (Rules 8(b), 13).
Affirmative defenses such as statute of limitations and statute of frauds must be pleaded in the answer or they are generally waived.
Rule 12 allows defenses to be raised by pre-answer motion or in the answer; lack of personal jurisdiction, improper venue, insufficient process, and insufficient service are waived if omitted from the first Rule 12 response.
Rule 11 imposes objective certification obligations on attorneys and parties, with a 21‑day safe harbor when sanctions are sought by motion.
Pleadings can be amended once as of right within specific time limits, and thereafter with consent or leave of court, which should be freely given when justice so requires (Rule 15(a)).
Amendments relate back if they arise from the same conduct, transaction, or occurrence; changing parties additionally requires notice within the Rule 4(m) period and a mistake concerning identity (Rule 15(c)).
Supplemental pleadings are used to add events occurring after the original pleading (Rule 15(d)).
Failure to plead or otherwise defend can lead to entry of default and default judgment; defaults can sometimes be set aside for good cause (Rule 55).

Key Terms and Concepts

Complaint
Answer
Pre-answer Motion
Affirmative Defense
Compulsory Counterclaim
Waiver
Rule 11
Safe Harbor (Rule 11)
Relation Back Doctrine
Supplemental Pleading
Default
Default Judgment

Pretrial procedures - Pleadings and amended and supplemental...