Motion to Amend Must Be Considered Before Hearing Motion to Dismiss

Before granting a motion to dismiss, a trial court should fully consider a pending motion to amend the complaint.

In Grose v. Kustoff, No. W2017-01984-COA-R3-CV (Tenn. Ct. App. Jan. 17, 2019), plaintiffs filed a pro se legal malpractice claim against defendant attorney. Instead of filing an answer, defendant filed a motion to dismiss based on the statute of limitations. Plaintiffs followed by filing a motion to amend their complaint, and they attached their proposed amended complaint to the motion. The trial court granted defendant’s motion to dismiss, ruling that the claim was time-barred, but never specifically addressed the motion to amend in its ruling. Plaintiff appealed, and the Court of Appeals vacated the judgment.

The Court began by noting that because defendant had not filed a responsive pleading, plaintiffs were entitled to amend their complaint once as a matter of course without leave of the court pursuant to Tenn. R. Civ. P. 15.01. Because plaintiffs chose to file a motion to amend rather than simply filing their amended complaint, however, they could not rely on Rule 15.01 and did need leave of court to amend. In Tennessee, “even where leave of court is necessary to the filing of an amended pleading, the trial court must properly consider the motion pursuant to the liberal policy outlined by Rule 15.01.” (internal citation omitted).

In its analysis, the Court relied heavily on Henderson v. Bush Bros. & Co., 868 S.W.2d 236 (Tenn. 1993), wherein “the trial court granted the defendant’s motion for summary judgment without ruling on or considering the plaintiff’s pending motion to amend its complaint beyond stating that the amendment was ‘too late.’” In reviewing the federal counterpart to Tennessee’s Rule 15.01, the Supreme Court ruled in that case that “given the policy of liberality behind Rule 15(a), it is apparent that when a motion to amend is not even considered, much less not granted, an abuse of discretion has occurred.”

In the present matter, the motion to amend was pending when the motion to dismiss was granted, but all the trial court said in its order was that “any and all outstanding Motions or Petitions are denied.” The trial court gave no “reasoned explanation” for its denial. In response to defendant’s argument that the amendment would have been futile, the Court stated that while it “agree[d] that futility and bad faith may indeed provide an appropriate basis for the denial of a motion to amend, the trial court here did not deny Plaintiffs’ motions on either of these bases and we decline to address these issues in the first instance.” (internal citation omitted). The Court held that “Plaintiffs [were] entitled to a full and careful consideration of their requests pursuant to Rule 15.01 by the trial court,” and that “[i]n failing to perform this duty, the trial court committed an abuse of discretion.” The dismissal was accordingly vacated.

These plaintiffs likely got some leeway due to their pro se status, but the holding of the case is nonetheless important. If a plaintiff has a motion to amend pending, he or she is entitled to have that motion considered before a dispositive motion for a defendant is granted.