Day on Torts Nugget – Amending Complaint While a Motion to Dismiss is Pending

Does a plaintiff have the right to amend a complaint while a motion to dismiss is pending and no answer has been filed?

Yes.  Rule 15.01 of the Tennessee Rules of Civil Procedure provides a party may amend its pleading “once as a matter of course at any time before a responsive pleading is served[.]” A motion to dismiss is not a responsive pleading and under Rule 15.01 the plaintiff has an absolute right to file an amended complaint.  Grose v. Kustoff, 2017-01984-COA-R3-CV,  2019 WL 244469 , at * 4  (Tenn. Ct. App. Jan. 17,  2019); Mosby v. Colson, No. W2006-00490-COA-R3-CV, 2006 WL 2354763, at *12 (Tenn. Ct. App. Aug. 14, 2006) (citing Adams v. Carter County Mem’l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977) (noting that a motion to dismiss is not a responsive pleading for purposes of Rule 15.01).  No motion to amend is necessary because the right to amend is granted in Rule 15.01 itself.

Indeed, some courts have held that a plaintiff who files a motion to amend under such circumstances loses the right to argue that the complaint is automatically amended by the filing of a motion and then leave of court is necessary to amend.  See City of Oak Ridge v. Levitt, 493 S.W.3d 492, 497 n.3 (Tenn. Ct. App. 2015) (noting that the plaintiff chose not to take advantage of Rule 15.01 allowance of an amended pleading without leave of court); Mosley v. State, No. W2014-01307-COA-R3-CV, 2015 WL 3971883, at *5 (Tenn. Ct. App. June 30, 2015) (indicating that where a plaintiff does not take advantage of its right to amend without leave of the court, this Court cannot correct that choice on appeal)

Thus, the correct approach for a plaintiff who is facing a motion to dismiss and no answer has been filed is to simply file an amended complaint, referencing that you are doing so under Rule 15.01.  If an answer has been filed, a motion seeking leave to amend is necessary.