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Rule 7. Amended and Supplemental Pleadings
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Originally from:
Handbook On the Rules Of Civil Procedure For West Virginia Magistrate Courts - Hardcover Version
Handbook On The Rules Of Civil Procedure For West Virginia Magistrate Courts - PDF Version
Rule 7. Amended and Supplemental Pleadings - Preview Page
Upon request by any party, the magistrate may permit the filing of an amended pleading, or amendment by interlineation, at any stage of the proceeding and upon such terms as may be just. Upon request, the magistrate may also permit the filing of supplemental pleadings asserting claims or defenses which have arisen since the date of the pleading to be supplemented. Permission to file an amended or supplemental pleading shall be freely given, and may be done with or without a hearing. Continuances to meet new matter asserted by way of amended or supplemental pleadings shall be granted if necessary to avoid surprise or other prejudice to the opposing party.
§ 7 Amended and Supplemental Pleading
[1] General commentary
Rule 7 sets out the requirements for amending or supplementing a complaint, answer or other pleading. The matters addressed by the rule for amending or supplementing a pleading are discussed separately in the subparts that follow.
An amended pleading and a supplemental pleading are distinguishable. As a general matter, an amended pleading seeks to set out matters that occurred prior to the filing of the original pleading. A supplemental pleading, on the other hand, incorporates matters which have occurred after the original pleading was filed.1
The underlying purpose of Rule 7 is to facilitate decisions on the merits, rather than on the pleadings or technicalities. In fulfilling this purpose magistrates courts should always be cognizant of the fact that leave to amend should be freely granted. The provisions of Rule 7 should also be liberally construed.2
[2] Amending pleading
Rule 7 states that upon request by any party, the magistrate may permit the filing of an amended pleading at any stage of the proceeding and upon such terms as may be just.3 A pleading may be amended to add or drop a party.4 It should be clearly understood that the rule does not allow an amendment of a pleading without approval by a magistrate.5 However, the rule provides that permission to file an amended pleading must be freely given.
About the Authors:
Justice Robin Jean Davis was engaged in the private practice of law in the state of West Virginia from 1982 until 1996. In 1996, she was elected as a Justice to the West Virginia Supreme Court of Appeals to fill an unexpired term. She was re-elected in November 2000. Justice Davis served as Chief Justice in 1998, 2002, 2006, 2007, and 2010. Justice Davis is the author of several West Virginia Law Review articles, including: "A Tribute to Franklin D. Cleckley: A Compendium of Essential Legal Principles from His Opinions as a Justice on the West Virginia Supreme Court of Appeals"; "A Tribute to Thomas E. McHugh: An Encyclopedia of Legal Principles from Opinions Written by Justice McHugh"; "An Analysis of the Development of Admitting Expert Testimony in Federal Courts and the Impact of That Development on West Virginia Jurisprudence"; and is the co-author with Louis J. Palmer, Jr. of "Workers' Compensation Litigation in West Virginia: Assessing the Impact of the Rule of Liberality and the Need for Fiscal Reform." In addition, Justice Davis is the co-author with Franklin D. Cleckley and Louis J. Palmer, Jr. of Litigation Handbook on West Virginia Rules of Civil Procedure (3d ed. 2008).
Louis J. Palmer, Jr. has been a staff attorney on the West Virginia Supreme Court of Appeals since 1996. He has authored several books that include: Encyclopedia of Abortion in the United States (2d ed. 2008); Encyclopedia of Capital Punishment in the United States (2d ed. 2008); Racism in America: A Guide to Understanding Discrimination (2006); and Encyclopedia of DNA and the United States Criminal Justice System (2004). In addition, Mr. Palmer is the co-author with Franklin D. Cleckley and Robin Jean Davis of Litigation Handbook on West Virginia Rules of Civil Procedure (3d ed. 2008).
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