Memo to File RE rule 15(b)

    MEMO TO FILE: BRADLEY V. MILLIKEN

DATE: SATURDAY, JULY 7, 1973

Rule 15 (b) , Federal Rules of Civil Procedure; Amendment
of Pleadings to Conform to Evidence.

The purpose of this rule relating to the amendment 
of pleadings to conform to proof is to rely on the pleadings 

to conform to the issues actually tried; the rule does not 
permit the amendments to include issues which may be in- 
ferentially suggested by incidental evidence of the re­

cord. Cole v. Layrite Products Co., (Court of Appeals,

Wash. 1971) 439 F.2d 958.
The underlying purpose of this rule permit­

ting amendment of complaint to conform to evidence, is 

to permit final disposition of case on the evidence ra­
ther than on the pleadings. Henry v. Coahoma Co. Bd. of- 

Educ., (D.C. Miss. 1963) 246 F.Supp. 517, aff'd 353 F.2d

648, cert, denied 384 U.S. 962.

RETROACTIVE EFFECT
Where claim to be set forth by amended com­

plaint arose out of conduct and occurence set forth in 
an original complaint, amendment would relate back to 
date of original complaint. Allen v. Cllnchfield Rail­

way Co., (D.C. Tenn. 1971) 325 F.Supp. 1305.
Where evidence when offered is objected to as 

not being within issues made by pleadings, the district 

court may allow an amendment of pleadings to facilitate 

presentation of the merits, but where no such objection 
is made and case is tried as if the issue had been 

raised, an amendment to the pleadings is not imperative. 
Pearl Insurance Co. vs. First Liberty National Bank,

(5th Cir. 1944) 140 F.2d 200.

The Court's granting permission to plaintiffs 

to amend complaint in accordance with testimony clearly



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indicating additional element of damages had legal ef­

fect of amending complaint to conform to proof and was 
sufficient to support jury’s verdict in access of ad 
damnum clause even though complaint was never physically 
amended. Troutman v. Modlin (Court of Appeals, Ark. 
1965)353 F.2d 382.

Formal amendment of pleadings to conform to 
evidence is needed only when evidence is objected to at 

trial as not within the scope of the pleadings. Hester 
v. New Amsterdam Casualty Co., (D.C.S.Ca. 1968) 287 F. 
Supp. 957, aff’d F.2d 505.

An amendment which does not introduce a new 
cause of action but restates in different form cause 

of action originally pleaded, relates back to commence­
ment of actions for the purpose of applying the statute 
of limitations. U.S. v. Templeton, (D.C. Tenn. 1961), 199 
F.Supp. 179.

Supplemental pleading enables the Court to 
award complete relief or more nearly complete relief in 
one action and to avoid costs, delay and waste of se­
parate actions which must be separately tried and pro­
secuted. New Amsterdam Casualty Co. v. Waller, 323 F.2d 
20, cert, denied 326 U.S. 963.

Supplemental complaint which concerns revised
State Tuition grant system for children of private schools
after the Court’s judgment in the original cause holding
former systems of tuition grants unconstitutional and 

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which made sufficient allegations to bring it within pur- 
vue of original cause that resulted in judgment provided 
expressly for the district court to retain jurisdic­
tion to amend or modify decree, could properly be filed 
after entry of original judgment. Pointdexter v. Loui­
siana Financial Assistance Commission, 296 F.Supp. 686, 
aff»d 393 U.S. 17. .

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Permitting plaintiff in personal injury case 
to amend her complaint to increase the prayer for general 

damages for $25,000.00 to $50,000.00 following the close 
of testimony was within the sound discretion of the trial 

court. Zatina vs. Greyhound Lines, Inc., (C.A.N.D. 1971) 

442 F .2d 238.
The following is the text of Rule 15(b):
(b) Amendments to Conform to the Evidence.
When 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 plea­
dings 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 so to 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 there­
by and the objecting party fails to satis­
fy the court that the admission of such 
evidence would prejudice him in maintaining 
his action or defense upon the merits. The 
court may grant a continuance to enable the 
objecting party to meet such evidence.

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