Amending a Georgia pleading: no leave needed until the pretrial order

Most systems tie the right to amend to a responsive pleading and measure it in days. Georgia ties it to a single event that may not happen for a year or more.

The rule

O.C.G.A. § 9-11-15(a):

A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order. Thereafter the party may amend his pleading only by leave of court or by written consent of the adverse party. Leave shall be freely given when justice so requires.

Read that against the federal analogue. FRCP 15(a)(1) gives one amendment as of right, within 21 days. Georgia gives an unlimited number, with no deadline other than the pretrial order.

Three consequences follow.

No count. The subsection says "as a matter of course" without qualification. There is no one-amendment limit.

No days. An answer, a motion to dismiss, or a summary-judgment motion does not close the window. Only the pretrial order does.

The trigger is a docket event, not a calendar date. In a case where no pretrial order has been entered, the right to amend is still open — even late in the litigation.

Responding to an amended pleading

The same subsection: "A party may plead or move in response to an amended pleading and, when required by an order of the court, shall plead within 15 days after service of the amended pleading, unless the court otherwise orders."

Note the condition — the 15-day obligation attaches "when required by an order of the court." A response to an amended pleading is permissive under the statute unless the court orders one.

That fits with § 9-11-12(a)(1), which provides that a cross-claim or counterclaim requires no answer unless the court orders one, and "shall automatically stand denied."

After the pretrial order

Once a pretrial order is entered, amendment requires leave of court or the adverse party's written consent, and "leave shall be freely given when justice so requires" — the same standard as FRCP 15(a)(2).

The practical effect is that Georgia front-loads freedom and back-loads control, where the federal rules do the reverse.

Amendments to conform to the evidence

O.C.G.A. § 9-11-15(b) covers two situations.

Issues tried by consent. "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." An amendment to conform may be made on motion of any party "at any time, even after judgment" — and failure to amend "does not affect the result of the trial of these issues."

Objection at trial. If evidence is objected to on the ground that it isn't within the issues made by the pleadings, the court may allow amendment "and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of the evidence would prejudice him in maintaining his action or defense upon the merits." The court may grant a continuance to let the objecting party meet the evidence.

Both provisions place the burden on the party resisting the amendment.

Relation back

O.C.G.A. § 9-11-15(c): whenever the claim or defence in the amended pleading "arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading."

For an amendment changing the party against whom a claim is asserted, relation back requires that provision to be satisfied and that, within the period provided by law for commencing the action against them, the party brought in by amendment:

1. "has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits"; and
2. "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him."

That mirrors FRCP 15(c)(1)(C), with one difference in the window: Georgia measures the notice period by "the period provided by law for commencing the action," where the federal rule uses the Rule 4(m) service period.

Supplemental pleadings

O.C.G.A. § 9-11-15(d): on motion, and upon reasonable notice and just terms, the court may permit a party to serve a supplemental pleading setting out transactions, occurrences or events that have happened since the date of the pleading being supplemented.

As in the federal rules, a supplemental pleading always requires a motion — the as-of-course right in subsection (a) applies to amendments, not supplements.

Dropping a claim instead

O.C.G.A. § 9-11-41(a) governs voluntary dismissal. A plaintiff may dismiss without order of court before the plaintiff rests, subject to the conditions the section sets, and the section contains Georgia's own two-dismissal provision — a second dismissal of a claim previously dismissed operating as an adjudication on the merits.

O.C.G.A. § 9-11-21 governs adding and dropping parties, which the court may order at any stage on just terms.

How this compares

The last row is the one to watch when moving between systems. In federal court, a Rule 16 scheduling order sets an amendment deadline that arrives long before trial and displaces Rule 15's generosity. Georgia's equivalent event — the pretrial order — typically comes much later.

Where these rules live

• O.C.G.A. § 9-11-6 — Time
• O.C.G.A. § 9-11-12 — Defenses and Objections
• O.C.G.A. § 9-11-15 — Amended and Supplemental Pleadings
• O.C.G.A. § 9-11-21 — Misjoinder and Nonjoinder of Parties
• O.C.G.A. § 9-11-41 — Dismissal of Actions
• O.C.G.A. § 9-11-55 — Default Judgment

The Georgia courts publish self-help material at georgiacourts.gov. This page explains what the statutes say. It isn't legal advice.