I sued for breach of contract. I learned yesterday that the defendant converted my money by spending my money on himself and no longer has it. Trial is 2 weeks away. Can I amend the Complaint now, before trial, at trial, after I ask the witness questions to admit he converted my money? What should I do? The other party defaulted - would amendment change the default? Thanks
2 defendants. 1 defaulted - the other wants the trial. I heard that you can amend the complaint at or even after the trial.
This is confusing. If the other party defaulted, then there should be no trial date. There may be a "prove-up" hearing, but there is no trial.
Let me assume there is really a trial. In this case, you will not be allowed to amend your complaint if it denies your adversary the time needed to adequately prepare his or her case as to the new allegations and claims. The more "new facts" needed to prove the amendment that are not needed to prove the original allegations, the more likely the motion to amend will be denied. If you surprise your adversary with the new theory at trial, moreover, the motion stands a very good chance of being denied. If you are going to file a motion to amend, you really should do it now.
Lawsuit / Dispute Attorney
I'm going to assume by "the other party," you mean a second defendant. The default is only good against the complaint they were served with, and they chose to ignore (this a due process issue).
While you can amend the complaint at any time, if the court permits, I'm not entirely sure what the purpose is here. You claim that the same amount is due under each claim really. Although, I guess you could add punitive damages to the conversion.
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Generally speaking, you must seek leave of court to amend your complaint to include additional claims and/or additional defendants. There are instances where a plaintiff can "amend according to proof" after the presentation of evidence at the time of trial.
However, in most instances, you need to make a motion to amend first. You must demonstrate that there is no prejudice to the defendant or defendants in light of the trial date. Sometimes this means continuing the trial to permit the defendant(s) more time to conduct discovery Sometimes no additional discovery is needed because the additional claim is against the same existing defendant and that defendant already participated in discovery such that the defendant cannot claim surprise.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
Personal Injury Lawyer
Is the one that converted the money the one who hasnt defaulted? You can amend on the deft who has defaulted, unless you want to serve him again. Not a good idea with trial so close. You can amend according to proof at trial if you can get the deft to admit he converted, or have other evidence he was aware of previously. It is up to the judge. If there are no new fact and the deft was aware of these facts, he arguably hasnt been prejudiced, and doesnt need a continuance to do more discovery.