Motion for Leave to Amend in Virginia

Understanding the Purpose and Significance of a Motion for Leave to Amend

“Rule 1:8 provides that leave to amend shall be liberally granted in furtherance of the ends of justice.” (See Kole v. City of Chesapeake (1994) 247 Va. 51, 57.)

“A motion to amend gives the opposing party notice of the claimed factual basis for the newly-asserted claim or defense and an opportunity to prepare to meet it.” (See Ford Motor Company v. Benitez (2007) 273 Va. 242, 252.)

"no amendment shall be made to any pleading after it is filed save by leave of court.” (See Herndon v. Wickham (1957) 198 Va. 824, 826.)

“In granting leave to amend the court may make such provision for notice thereof and opportunity to make response as the court may deem reasonable and proper." (See id.)

Procedural Steps Involved in Filing a Motion for Leave to Amend

Rule 1:8 of the Virginia Court Rules governs amendments.

The rule states, “No amendments may be made to any pleading after it is filed save by leave of court.” (See Va. R. Sup. Ct. 1:8.)

“Leave to amend should be liberally granted in furtherance of the ends of justice.” (See id.)

“Unless otherwise provided by order of the court in a particular case, any written motion for leave to file an amended pleading must be accompanied by a properly executed proposed amended pleading, in a form suitable for filing.” (See id.)

“If the motion is granted, the amended pleading accompanying the motion will be deemed filed in the clerk's office as of the date of the court's order permitting such amendment.” (See id.)

“If the motion is granted in part, the court may provide for filing an amended pleading as the court may deem reasonable and proper.” (See id.)

“Where leave to amend is granted other than upon a written motion, whether on demurrer or oral motion or otherwise, the amended pleading must be filed within 21 days after leave to amend is granted or in such time as the court may prescribe.” (See id.)

“In granting leave to amend the court may make such provision for notice thereof and opportunity to make response as the court may deem reasonable and proper.” (See id.)

Discretion of the Court in Deciding a Motion for Leave to Amend

“Whether to grant an amendment is a matter resting within the sound discretion of the trial court.” (See Brown v. Jacobs (2015) 768 S.E.2d 421, 426; Kimble v. Carey (2010) 279 Va. 652, 662, 691 S.E.2d 790, 795; Roberts v. Roberts (1982) 223 Va. 736, 742, 292 S.E.2d 370, 373; Kole v. City of Chesapeake (1994) 247 Va. 51, 57.)

“Although amendments are not a matter of right, a trial court's decision refusing leave to amend after a showing of good cause is an abuse of discretion in ordinary circumstances.” (See Costanzo v. Costanzo, Record No. 0174-08-2, at *4 (Va. Ct. App. Feb. 3, 2009); Ford Motor Company v. Benitez (2007) 273 Va. 242, 252, 639 S.E.2d 203, 208.)

“Good cause can exist where a party has not previously sought to amend her pleadings, a request was timely made, and nothing in the amendments suggest that the non-moving party would be prejudiced.” (See Costanzo v. Costanzo, Record No. 0174-08-2, at *3 (Va. Ct. App. Feb. 3, 2009); Ogunde v. Prison Health Services, Inc. (2007) 274 Va. 55, 67, 645 S.E.2d 520, 527.)

“The circuit court must consider whether the [non-moving party] will be prejudiced and whether such prejudice will affect the [non-moving party's] ability to have a fair trial." (See Costanzo v. Costanzo, Record No. 0174-08-2, at *3 (Va. Ct. App. Feb. 3, 2009); Peterson v. Castano (2000) 260 Va. 299, 303, 534 S.E.2d 736, 738.)

“The court may also consider whether the request to amend is to avoid or unnecessarily delay the trial.” (See Costanzo v. Costanzo, Record No. 0174-08-2, at *3 (Va. Ct. App. Feb. 3, 2009); Ogunde v. Prison Health Services, Inc. (2007) 274 Va. 55, 67, 645 S.E.2d 520, 527.)

“Our Supreme Court has previously concluded that a circuit court abuses its discretion when it denies a motion to amend where there is no evidence that the [non-moving parties] would have suffered any prejudice, and the amendment would have been in furtherance of the ends of justice." (See id.)

Legal Precedents and Case Law on a Motion for Leave to Amend

It is well settled that “generally, amendments will be permitted when their object is the trial and determination of the subject matter of the controversy upon which the action was originally based. When the plaintiff in the amended bill attempts to assert rights and to enforce claims arising out of the same transaction [or] act, however great the difference in the form of liability as contained in the amended bill from that as stated in the original bill, the amendment will not be viewed as stating a new cause of action. Thus, an amendment does not constitute a new or different cause of action if it only varied the mode of demanding the same thing.” (See Carter v. Williams (1993) 246 Va. 53, 57; Accord Vines v. Branch (1992) 244 Va. 185, 188, 418 S.E.2d 890, 892-93; New River Min. Co. v. Painter (1902) 100 Va. 507, 510, 42 S.E. 300, 301.)

It is also well settled that pursuant to Virginia Code § 8.01-6 “a misnomer in any pleading may, on the motion of any party, and on affidavit of the right name, be amended by inserting the right name.” (See Va. Code § 8.01-6; Richmond v. Volk (2016) 291 Va. 60, 69; Edwards v. Omni Int'l Servs., Inc. (2022) 872 S.E.2d 428, 429.)