Amendment Case Analysis

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The decision is highly suspect because it is premised upon an unfounded assumption — that there is a different standard for a plaintiff’s motion to amend pleadings after summary judgment for the defendant than after judgment upon a verdict.

The court stated, "because the relevant factors after the close of evidence are not entirely the same as after the grant of a motion for summary judgment, we do not suggest that Soczka authoritatively defines the correct legal standard in this case."

The court cites no authority for that proposition, however. Furthermore, the court assumes that motions after summary judgment should be granted more liberally than after a trial, but there is no reason why that should be so.

If anything, such motions should be treated less liberally. As anyone who has ever been involved in a trial knows, unexpected testimony occurs sometimes. As a result, the statutes expressly permit amendment of the pleadings to conform to the evidence.

Section 802.09(2) provides: "If issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice such party in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence."

On motions for summary judgment, however, there is no unexpected evidence, because such motions are argued based on depositions, affidavits, and evidence previously available to all parties.

Should an unexpected argument arise, parties have ample opportunity to amend their pleadings before judgment. Weeks may pass between the filing of the briefs and the hearing before the court, and months may pass before the court issues its judgment. Even if the court issues an oral decision at the hearing, the parties should know from the earlier-filed briefs that they may need to amend the pleadings.

As a result, there is no reason why plaintiffs’ motions to amend pleadings after summary judgment for the defendant should be treated more liberally than such motions made after trial.

Ironically, despite the court’s assumption that a different standard should apply, the federal cases it cites with approval make no such distinction.

	Links Wisconsin Court of Appeals Related Article Standards adopted for amending pleadings

One such case quoted by the court, Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598, n.2, (5th Cir. 1981), holds that, despite the federal rule allowing for liberal amendment of pleadings, the burden shifts to the moving party "after the trial court has disposed of the case on the merits as in the case of summary judgment or judgment after a full trial. Then the concerns of finality in litigation become more compelling, and the litigant has had the benefit of a day in court, in some fashion, on the merits of the claim. (emphasis added)."

A Seventh Circuit case quoted by the court of appeals sets forth the burden the plaintiff must meet: "the presumption that leave to amend shall be freely given pursuant to Rule 15(a) disappears after the entry of judgment. A party seeking amendment at that stage of the proceedings must provide the district court with a good reason to grant its motion." Illinois Conference of Teamsters and Employes Welfare Fund v. Steve Gilbert Trucking, 71 F.3d 1361, 1368 (7th Cir. 1995).

Thus, applying the federal cases, Allison has the burd
en of producing a "good reason" why it should be permitted to amend its pleadings.

However, the court’s decision is conspicuously lacking any reason whatsoever, much less the good one required by the federal courts on which the court purports to rely.

Perhaps Allison did give some reason. But, if he did, that reason should have been included in the court of appeals’ decision.

Absent a reference to such "good reason" by the court, however, the decision in this case should have been that Allison failed to meet his burden, as a matter of law, and never should have been permitted to amend his pleadings.

– David Ziemer

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David Ziemer can be reached by email.