Formal Definition of Leave of Court
"Leave of court" is defined as "permission to do something that must otherwise wait." Kenneth Culp Davis, Administrative Law Text § 4.32 (3d. ed. 1972). It is legislative or judicial permission to do some act which would be illegal without it. BLACK’S LAW DICTIONARY 916 (7th ed. 1999); Davis, supra at § 4.33. An act without leave of court is void and a nullity. See 8 L.R.A. (n.s.) 815 (1900). In federal courts, "no trial judge ought to be permitted to entertain in his discretion a motion of this description, unattended, as here, with any specifications of reasons, or with any suggestions calculated to refine the decision upon its merits; but he should promptly grant or deny leave, as of course, with the reasons therefor." United States v. Shearer, 474 US 53, 63 (1985) (opinion of White, J.) (Schwarz, J., concurring).
Just as a court’s granting of leave to file an amended complaint does not guarantee that the plaintiff will ultimately prevail, but only indicates that the proposed amended complaint has met the minimum standards allowing it to be entertained by the court, so also the granting of a motion for leave of court does not guarantee that the court will grant the ultimate relief requested. Anderson v. City of Irondale, 901 So.2d 790, 792 (Ala. 2004) ("The granting of a motion for leave to amend a complaint, however, is not the same as granting a motion for summary judgment . ")
In Alabama state court, leave of court is required before a party can intervene. See, e.g., Ala. R. Jud. Admin. 32.06(b) ("A person desiring to intervene in a pending action shall file a motion for leave to intervene."); Old Republic Surety Co. v. Scott & Stringfellow, Inc., 740 So. 2d 1057, 1057-58 (Ala. 1999) (ruling that "[t]he trial court did not err in denying the motion to intervene on the ground that [the proposed intervenors] failed to seek leave of court before filing their answers and counterclaims"). Leave is not required under the Federal Rules for intervention or amicus curiae briefs. See Fed. R. Civ. P. 24(a)(3) (stating that existing parties may amend pleadings "by leave of court"); Fed. R. App. P. 29 (stating that "[a]ny attorney . . . may file an amicus curiae brief in any court whose judgment is the subject of review by the court of appeals" and that "[a] motion for leave to file an amicus curiae brief need not contain a certificate, and a statement of identity, interest, and authority"). The federal district courts have identified a "general rule that failure to seek leave to file an amicus brief is not fatal." Neonatology Specialists, P.C. v. Vijaykumar, No. 09-CV-02339, 2009 WL 3353481, at *1 (E.D. Pa. Oct. 16, 2009) (internal quotation marks omitted).
Historical Origins of Leave of Court
The term ‘leave of court" has been used across many jurisdictions for centuries to describe the permission granted by the court for a party to take a step which would otherwise not be allowed as of right. Research into the use of the term in ancient legal systems, including Roman and Greek, shows that ‘leave of court’ was used to refer to such permission, including among Roman administrators and Roman jurists.
For large parts of history it has been the practice in common law jurisdictions for a party to apply to the court for leave before taking a step which would have been permitted as of course at an earlier point in proceedings. This can be contrasted with the modern approach of dealing with such procedural issues in the rules of court.
In the United States, the Federal Rules of Civil Procedure ("FRCP") mirror the modern approach to such procedural issues. In terms of the FRCP, as a new term "permission to do something", the term "leave of court" is often used interchangeably with the term "leave to file", although the latter is more common. The U.S.-style system also provides for motions, which are more commonly referred to in the U.S. than in the U.K., in which a party seeks the permission of the court to implement a step in proceedings.
The modern approach to procedural requirements in the context of motions is distinct from the historical and traditional approach. The historical approach was more formal and rigorous, where the leave of court was only given if certain strict requirements had been met by an applying party. The modern approach is less formal and rigorous, where the leave of court is a procedural requirement without further qualifications or conditions.
Because the use of the term "leave of court" is ubiquitous throughout the law, many jurisdictions using it throughout their legislative system, the term has become more or less universally understood across legal and non-legal professions.
Circumstances Where Leave of Court is Necessary
Leave of Court is not always needed in a lawsuit. This is especially true before a case is "at issue" (meaning that both sides have brought pleadings and the period for discovery has commenced). You may recall that I explained the concept of "at issue" in an earlier post.
However, once you are "at issue" leave of Court often becomes necessary. When might you need leave of Court? When amending a pleading.
A party may rely on an amended pleading so long as its contents show that the moving party is entitled to relief, but the moving party must obtain leave of court before it files an amended pleading. Rule 15(a) of the North Carolina Rules of Civil Procedure ("Rule") governs the right of a party to amend a pleading before trial.
In Chapter 1A, Rule 15(a) provides that: [A] party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served…except that a party shall not amend a complaint to add a claim for punitive damages after the expiration of the window of time set by G.S. 1A-1, Rule 9(j) at the request of the adverse party. Otherwise, a party may amend the party’s pleading only by leave of court. Leave shall be freely given when justice requires. However, a party shall not amend the party’s pleading to add a claim for punitive damages without leave of court upon the filing of a motion to amend that is supported by an affidavit filed within the window of time set by G.S. 1A-1, Rule 9(j). The court shall consider an amendment to assert a claim for punitive damages as untimely when justice did not sufficiently require the amendment as a matter of course.
As to a Defendant, the Rule specifically provides that: [A] defendant may amend a motion for judgment on the pleadings, a motion to dismiss for failure to state a claim for relief, or an answer to add a claim for a permissive counterclaim at any time within thirty days of serving its motion for judgment on the pleadings or motion to dismiss or within thirty days of service of its answer for a permissive counterclaim.
Defendants may, however, amend their answer to assert a permissive counterclaim or additional counterclaims without leave of court in accordance with this rule.
When moving to amend a motion for judgment on the pleadings or motion to dismiss, the moving party must also file an affidavit that attests that the claim or defense to be asserted in the amended motion for judgment on the pleadings or amended motion to dismiss was timely asserted under this Rule.
Timing of filing an amended pleading
Amendments to pleadings during the discovery period are subject to time limitations as provided by Chapter 1A, Rule 15(a) of the North Carolina General Statutes. Specifically, a party seeking to amend a pleading in response to discovery must do so within "30 days after the time specified in the discovery plan for completion of discovery or any date to which the parties have Agreed-Or which the court has ordered."
Generally speaking, amendments to pleadings are disfavored if they are filed after the close of discovery. In Mathis v. Fidelity Investments Institutional Services Company, Inc., the plaintiff failed to timely amend their Original Complaint; therefore, the amendment was denied and dismissed with prejudice. Specifically, the Court noted that the plaintiff’s delay in asserting their breach of contract claim—after the close of discovery-was not done in good faith.
In Mathis, the plaintiffs sought to amend their complaint to assert a breach of contract claim against the defendants after the close of discovery. Specifically, the plaintiffs did not file their motion to amend until one year after discovery had closed. The plaintiffs sought to amend the pleading in connection with a new theory of recovery providing for joint and several liability against investment entities involving the same fund.
The Motion to Amend was granted over the objection of the defendant because the motion was filed prior to the Pre-Trial order.
Again, amendments to pleadings are generally disfavored if they are filed after the close of discovery. Given the prolonging nature of litigation, the time for amending pleadings is limited to a certain time period. Amendments to pleadings are not allowed after the deadline for the completion of discovery of a case.
Amendments few and far between after discovery
Although leave of Court is not necessarily required to amend a pleading prior to the completion of discovery, amendments to pleadings are frequently disfavored once discovery is complete. This is due to the potential for prejudice, delay, judicial economy, and other factors.
Takeaway
As a general rule, in litigation, leave of court is required to amend a pleading, regardless of whether you are adding a claim or a defense. However, leave of court is not required in every situation.
How to Obtain Leave of Court
The process to obtain leave of court is dependant on the Alabama Rule of Civil Procedure that applies to the relief the party is seeking. For example, under Alabama Rule of Civil Procedure 60, the aggrieved party must file a petition and an affidavit in support of their petition. Rule 60 requires the petition to be filed within 90 days of the entry of the final judgment, decree, or order which is being attacked.
The aggrieved party must also "set forth specifically the grounds upon which relief is sought." ARCP 60(b). The grounds set forth must be "warranted by the facts in the case"—the facts are the evidence. Petition for Relief from Judgment, Trial Rule 60(B), 4A Wn. Prac., Advisory Comm. Note: 2009 Supp. (citing McDonald v. Internet Gateway, No. 1:00-CV-0072, 2000 WL 1739625, at *2 (D. Idaho Nov. 30, 2000) (citations omitted)). Finally, the petition must contain a proposed order. A suggested form of an appropriate motion and order is provided in the Alabama Rules of Civil Procedure.
Petitions made pursuant to ARCP 60 make no distinction between an original petition made to secure relief for the first time and a second or successive petition. However, the court in Ex parte Williams, 628 So. 2d 882 (Ala. Civ. App. 1993), imposed temporal restrictions on post judgment motions. It noted that "in order for a Rule 60(b) motion to be effective, it must be ruled on within thirty days of its filing, and that any motion filed outside of that time frame is a nullity." Williams, 628 So. 2d at 883 (citing Baird v. Baird, 366 So. 2d 719 (Ala. 1979)).
Aggrieved parties may not rely on a Rule 60(b) motion if the motion does not contain the required petition and supporting affidavit setting forth specific grounds for relief. ARCP 60(b), Advisory Committee’s Note. An aggrieved party’s submission of a motion that does not comply with the requirements of Rule 60 and therefore is defective on its face will not toll the running of the time during which an appeal may be taken. Williams, 628 So. 2d at 883. A timely petition made pursuant to ARCP 60 can impact the period of time in which a party may appeal. In State v. Escambia Coal Co., 610 So. 2d 1198 (Ala. Civ. App. 1992), the Alabama Court of Civil Appeals explained that the entry of an order setting aside a judgment tolls the running of the appeal clock. However, the motion must be presented to the trial court within 14 days of the entry of the judgment which is being attacked. Id. Failure to follow this procedure runs the risk of voiding the appeal. Section 12-22-131, Code of Alabama 1975; ARCP Rule 77(d).
The trial court is required to hold a hearing on the petition which will be conducted in accordance with the relevant rules for civil trials. Williams, 628 So. 2d at 883 (citing Shores v. City of Birmingham, 613 So. 2d 124 (Ala. Civ. App. 1992)). If relief is granted, the trial court must enter an order granting relief. Completed forms are available in the Alabama Rules of Civil Procedure for the trial court to use.
All petitions pursuant to Rule 60 should be filed "as a separate action" and not as part of the underlying action which the petitioner seeks to vacate. Williams v. McMillan, 552 So. 2d 131 (Ala. Civ. App. 1989). The petitioner is responsible for serving those parties affected by the petition. Williams, 628 So. 2d at 883.
Failure to Obtain Leave of Court
Consequences of Failing to Obtain Leave of Court
While an incomplete order may seem innocuous, as a parent whose objections are properly before the Court, it can have a lasting effect on your rights within the proceedings. In essence, the incomplete Order can affect the subject matter of your pleadings or request to the Court.
As Judge Vaugn Settle in Stratton v. Stratton explained, in order for the Court to have jurisdiction to legalize an out of state, foreign divorce, the Court must determine that the foreign Court had subject matter jurisdiction over the matter, and personal jurisdiction over the parties. Where a party fails to object to the lack of leave being attained, they may be surprised not to be able to overturn an improper order.
In Stratton, the Husband sought to overturn an Out of State, Foreign Divorce Order by motioning the court to grant him a Hearing on his request. However, in his motion, he failed to obtain leave of Court pursuant to the literal requirements of the rule. As a result, Judge Settle dismissed the motion as moot. As Judge Settle explained:
The above statute requires a party seeking enforcement or modification of a divorce decree entered in another state to obtain leave of court ". . . if such decree is based, in whole or in part, on a classification of property changing subsequent to its entry in such court . "
The petition filed by the former husband did not make any reference to obtaining leave of court pursuant to the statute. He simply states, "Petitioner requests that this Honorable Court enter an order requiring Respondent to specifically comply with the November 22, 2002, judgment and order of the State of Wyoming."
Even if the prayer were construed as a motion for leave of court, the former husband failed to allege or specifically even argue that the property classification changed subsequent to the entry of the Wyoming decree. In fact, there is no issue of property involved in the case sub judice. The former husband was not challenging any property award in the California divorce decree.
Further, as discussed in Fuentes v. Fuentes, the failure to respond, oppose, or object to a motion for leave being granted can result in a waiver of an objection to the underlying substantive objection before the Court, including a summary judgment. Citing Cal. Emplmt. Stabilization Bd. v. Wag, "A waiver can be either express or implied from a party’s failure to respond to a motion (see [Code Civ. Proc.] § 437); accord [id. § 1014].") Waiver effectively negates the effect of an objection, unless the Court determines that a substantive injustice would be accomplished.
Practical Example of Leave of Court
One of the best ways to understand the true essence of "leave of court" is through real-world case studies. In 2011, the Ninth Circuit in Munoz v. United States might have finally provided some clarification after a long line of cases and a variety of treatments across jurisdictions. The court had three issues to address in the appeal by Munoz, but only one of them is relevant here. As the court stated: "Munoz also argues that we have jurisdiction pursuant to 27 U.S.C. § 2410 as case arising under federal law because the district court ordered him to show cause why he should not be held in contempt for failing to comply with the court’s order granting . . . a Writ of Garnishment." The Ninth Circuit disagreed, relying on Aliff v. Magnolia Petroleum Co., 268 F.2d 278 (5th Cir. 1959), where the "Fifth Circuit held that contempt proceedings initiated to enforce a judgment provide for appellate review as a continuation of the original suit if the proceeding was pending when the appeal was taken." Here, however, Munoz had filed a third party petition well after the initial garnishment and levy orders were entered, so the court agreed with the reasoning of the Fifth Circuit rather than the outcome of a Ninth Circuit case, stating: "We decline to expand our holding in In re Tully to apply ‘to subsequent proceedings that are offensive to the original creditor.’" This case and others illustrate that the reasoning behind the order granting leave of court can vary significantly depending on the context of the case itself.
Another example of leave in action is in Ortega v. City of Oakland, which involved a defendant seeking to enforce an attorney client’s lien. The lien, if valid, would "give rise to an award of attorneys’ fees" directly from the prevailing party in the case. However, prior to an answer being entered, the defendant/landlord in the case filed a motion to strike/for judgment on the pleadings to dispose of the action on procedural grounds. The trial court granted the motion, but specifically stated that the defendant could move for attorneys’ fees within 20 days. The plaintiff filed an appeal, but the Ninth Circuit dismissed the case due to lack of appellate jurisdiction, as the order granting/denying leave of court was not a final judgment. The Ninth Circuit found that "leave to move for attorneys’ fees in this case, as is often the case, is not a final ruling because it does not finally determine the defendant’s rights. Instead, a post-judgment motion for fees merely provides an avenue for relief that remains dependent on an underlying judgment for its viability." Thus, despite granting leave of court to seek attorneys’ fees, the trial judge’s failure to rule on the merits of the attorney’s fee petition left the defendant without recourse at the appellate level.
These and other cases ultimately reveal that throughout the years numerous courts have encountered leave of court issues of their own making and provided diverse outcomes. Many times the decisions of these courts derive solely from the procedural context of the case, while others fall under the ultimate authority of the federal courts of the various jurisdictions. Interesting case studies involving leave of court demonstrate how various judges, in different circumstances, have ruled on the matter and what the courts have included in their decisions to allow or deny leave of court.
Leave of Court FAQ
What is a motion for leave of court?
Asking the court to take a certain action (like to file a late answer) is done by filing a motion. In some cases, it’s necessary to specifically ask the court for permission to do something. This is known as a motion for leave of court. "Leave" means permission.
When do I need leave of court?
There are a couple of scenarios in which you must obtain permission from the court to take an action. One is if the court has already made a ruling on your claim or defense and you want to bring it up again. For example, if a party’s motion for summary judgment is denied, the party is not entitled leave of court before trying again to get summary judgement on the exact same grounds. But if the party wants to try to get summary judgement on different grounds, they may need to ask the court for permission.
Another scenario is if you are attempting to file pleadings or motions after a case is over. Again , even in these circumstances, you’re not guaranteed permission from the court. Sometimes this is granted, and sometimes not. A motion for leave of court is required in Sampson proceedings.
Do I always need leave of court?
No. Leave of court is usually only required when the action you are trying to take is an exception to the normal rules. For example, if you miss a deadline (like the deadline for filing a motion for new trial) you’ll likely need to ask the court for permission to file it anyway, but you may be able to go ahead and file an appeal without permission.
What happens if I don’t get leave of court?
If you do not obtain leave of court when it’s required, odds are that the court will deny your motion. It’s always a good idea to make sure you are getting leave of court when needed. Otherwise, you may find yourself stuck.