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AMENDMENT OF PLEADINGS

Under Fed.R.Civ.Proc. 15(a), 'a party may amend his pleading once as a matter of course at any time before a responsive pleading is served.' Many courts have held that 'a motion to dismiss is not a `responsive pleading' within the meaning of the Rule. Neither the filing nor granting of such a motion before answer terminates the right to amend; an order of dismissal denying leave to amend at that stage is improper.' Schreiber Distributing v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.'86). 'It is of no consequence that no request to amend the pleading was made in the district court.' Id. In dismissing for failure to state a claim, 'a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.' Cook, Perkiss & Liehe v. N. Cal. Collection Service, 911 F.2d 242, 47 (9th Cir.'90). However, where redrafting could not cure the pleading, it is proper for the district court to dismiss the complaint without allowing the plaintiff to amend. Frigard v. U.S., 862 F.2d 201, 04 (9th Cir.'88), cert. denied, 490 U.S. 1098 ('89).

'[a ] pro se litigant must be given leave to amend his or her complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' ' Noll v. Carlson, 809 F.2d 1446, 48 (9th Cir.'87) (quoting Broughton v. Cutter Labs., 622 F.2d 458, 60 (9th Cir.'80)).

Denial Of Leave To Amend Answer.

Rule 15(a) of the Federal Rules of Civil Procedure 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. 'Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.' Fed.R.Civ.P. 15(a). Determining whether to give leave of court requires an exercise of discretion by the trial court. The exercise of that discretion is of course not unfettered, and the rule itself makes clear that leave shall be freely given when justice so requires. Unless a procedural matter is importantly related to an area of this court's exclusive jurisdiction, as a matter of convenience for district judges we will usually be guided by the views of the circuit in which the trial court sits with regard to general procedural issues. In re Innotron Diagnostics, 800 F.2d 1077, 80 n.3, 231 USPQ 178, 180 n.3 (Fed. Cir.'86); Panduit Corp. v. All States Plastic Mfg. Co., Inc., 744 F.2d 1564, 223 USPQ 465 (Fed. Cir.'84). In this case, that is the Ninth Circuit.

The Ninth Circuit has made clear that '[i]n exercising its discretion, 'a court must be guided by the underlying purpose of Rule 15 -- to facilitate decision on the merits rather than on the pleadings or technicalities,'' Leighton, 833 F.2d at 186, quoting U.S. v. Webb, 655 F.2d 977, 79 (9th Cir.'81).

The Ninth Circuit has articulated four concerns it brings to the review of a trial court's exercise of discretion regarding motions to amend a pleading. 'These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment.' Leighton, at 186, citing Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 19 (9th Cir.'84), and Howey v. United States, 481 F.2d 1187, 90 (9th Cir.'73).

Practice. The correction, by allowance of the court, of an error committed in the progress of a cause.

Amendments at common law, independently of any statutory provision on the subject, are in all cases in the discretion of the court, for the furtherance of justice they may be made while the proceedings are in paper, that is, until judgment is signed, and during the term in which it is signed; for until the end of the term the proceedings are considered in fieri, and consequently subject to the control of the court and even after judgment is signed, and up to the latest period of the action, amendment is, in most cases, allowable at the discretion of the court under certain statutes passed for allowing amendments of the record; and in later times the judges have been much more liberal than formerly, in the exercise of this discretion. They may, however, be made after the term, although formerly the rule was otherwise and even after error brought, where there has been a verdict in a civil or criminal case. A remittitur damna may be allowed after error and this, although error be brought on the ground of the excess of damages remitted. But the application must be made for the remittitur in the court below, as the court of error must take the record as they find it. So, the death of the defendant may be suggested after errer coram nobis. So by agreement of attormeys, the record may be amended after error.

Amendments are, however, always limited by due consideration of the rights of the opposite party; and, when by the amendment he would be prejudiced or exposed to unreasonable delay, it is not allowed.

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