Bonerb v. Richard J. Caron Foundation

159 F.R.D. 16 (W.D.N.Y. 1994)


  • ¶ slipped and fell in a muddy basketball court while a patient at r’s drug & alcohol rehab center.


Procedural History:

  • ¶‘s initial complaint alleges negligence in the maintenance of basketball court by r.
  • After changing counsel, ¶ moved to amend the complaint to include “counseling malpractice”

Motion to amend granted.


Contentions of parties:

r: the amendment does not relate back to the original complaint.



Whether under Rule 15 the r was put on notice by the original claim to the new claim in the amendment.



Under Rule 15 the r was put on notice by the original claim to the new claim in the amendment because even though the amendment changes the legal theory of the case, it rests upon the same factual basis that the plaintiff was put on notice for in the complaint.



Under Rule 15, an amendment may be allowed by the court “when justice so requires.”


(1) Relates back to the same nucleus of operative facts

(2) Original complaint gives sufficient notice

(3) Fair


Rule(s) of Law:

Rule 15: provides that once time for amending a pleading as of right has expired, a party may request leave of court to amend, which “shall be freely given when justice so requires.”

Forman v. Davis: “This provision has been liberally construed, and leave to amend should be granted absent undue prejudice to the party opposing the amendment, undue delay on the part of the party seeking the amendment, or bad faith. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Oliner v. McBride’s Industries, Inc., 106 F.R.D. 9, 12 (S.D.N.Y.1985). However, an amendment which seeks to add a time-barred claim would be futile, and should not be allowed unless the otherwise untimely claim “relates back” to the date of the original pleading. Fed.R.Civ.P. 15(c); Oliner v. McBride’s, supra”


This is a change in legal theory rather than a change in facts.

Court’s Order:

Motion to amend granted.