It happens to the best of attorneys – the moment you realize that you have filed a Complaint or an Answer and you’ve left out a cause of action or relevant affirmative defense. This is critically important, especially if you've left out a defense – under Rule 1.140, Florida Rules of Civil Procedure, most defenses, which are not asserted in the responsive pleading, are deemed to have been waived. Luckily, Rule 1.190 allows for a party to amend a pleading with or without leave (depending on the timing of the motion).
Under 1.190, if you have filed a Complaint, you can amend it without leave of court at any time before the responsive pleading has been served. If you have filed a responsive pleading, you may amend it without leave of court within 20 days of its filing (so long as the case has not been set down on the trial calendar). But what happens if you don't realize your omission, until after these deadlines have past?
If the deadlines enumerated above have past, hope is not lost. You can still potentially amend your complaint or answer, but you'll need to file a "motion for leave to amend" with the trial court, or obtain "consent" from the opposing party (good luck). See Fla. R. Civ. P. 1.190(a).
The rule directs the court to grant leave to amend "freely" when "justice so requires." In addition to the rule itself, a large body of case law has also developed in this area, which directs the Court to consider three factors in determining whether to grant leave to amend: (1) whether the opposing party will be prejudiced if the amendment is permitted; (2) whether the party seeking leave to amend is abusing the process or privilege; and (3) whether the amendment is futile. See Life Gen. Sec. Ins. Co. v. Horal, 667 So. 2d 967 (Fla. 4th DCA 2001).
The timing of a motion for leave is critical: Courts are directed to be "liberal in permitting" a motion for leave to amend, made at or before a motion for summary judgment. See Saidi v. Saqr, 207 So. 3d 991 (Fla. 5th DCA 2016); Dimick v. Ray, 774 So. 2d 830 (Fla. 4th DCA 2000); Thompson v. Bank of New York, 862 So. 2d 768 (Fla. 4th DCA 2003); Cobbum v. Citi Mortgage, Inc., 158 So. 3d 755 (Fla. 2d DCA 2015). Accordingly, motions for leave to amend at this stage in litigation will almost always be granted by the court in its discretion.
The near certainty of the permissibility of a Motion for Leave at or before summary judgment brings up a question of professional responsibility – what if you are the opposing party to a motion to amend at this stage? Should you consent to the amendment? Do you object and force a motion, and hearing?
Many attorneys feel that agreeing to any motion in civil litigation, even a clearly permissible one, constitutes a failure to "zealously advocate" for their client. It is important to remember that you also have a duty of candor to the tribunal; when case law clearly provides you with no legal basis to object, objecting for the sake of objection can leave you in bad regard with the Court, opposing counsel, and even potentially your client. The point is: consider whether your legal position in objecting is sound before you object merely for the joy of creating contempt in your adversary.
The practice take away: If you've left out a critical cause of action, or affirmative defense-evaluate your case status, and consider making a motion for leave to amend. On the other hand, if you are faced with a motion for leave, or a request for "consent" to amend, remember that case law largely favors amendments made at or before summary judgment and object (or refrain from