Amending a Hawaii pleading: Ramseyer formatting, the whole pleading, and then a clean copy

Hawaii borrowed a drafting convention from its legislature and put it in the civil rules. A motion or stipulation to amend a pleading must attach the proposed pleading in Ramseyer formatting, showing every change against the existing text.

It is a three-document, two-stage process, and nothing about it is optional.

One amendment as of course

Rule 15(a)(1):

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served.

Two windows. The first runs until a responsive pleading is actually served, with no day count attached — so a plaintiff facing a defendant using all 20 of their Rule 12(a) days can amend as of right for that whole period. Federal Rule 15(a)(1) caps the equivalent at 21 days.

The second window carries the trial-calendar condition that Washington and Alaska also impose: 20 days, and only if the case is not yet set.

Rule 15(a)(2): Ramseyer formatting

For everything else, leave of court or the adverse party's written consent is required, "and leave shall be freely given when justice so requires." Then:

A motion or stipulation to amend a pleading shall be accompanied by the proposed amended pleading in Ramseyer formatting (additions underscored and deletions bracketed and stricken). A party filing or moving to file an amended pleading shall reproduce the entire pleading as proposed and shall not incorporate any part of the prior pleading by reference, except with leave of court. If granted or allowed, the amended pleading shall be filed, with Ramseyer formatting removed, and served forthwith.

Three requirements and a second filing.

Ramseyer formatting — the convention Hawaii uses for bills amending existing statutes. New text is underscored; deleted text is bracketed and struck through. The reader sees the change, not just the result.

The entire pleading, reproduced. No incorporation by reference of any part of the prior pleading, except with leave. An "Amendment to Complaint" adding a count does not comply.

And then a clean copy. Once the motion is granted or the stipulation allowed, the amended pleading is filed again — this time with the Ramseyer markup removed — and served forthwith.

So a contested amendment produces two filings of the same pleading: the marked-up version attached to the motion, and the clean version filed after it is granted. Calendar the second one. The order granting leave does not put the amended pleading on file.

Alaska reaches a similar destination by a different route: its Rule 15(e) requires the amended pleading to be retyped complete in itself with all exhibits, and says "no pleading will be deemed to be amended until this subdivision has been complied with." Washington's CR 15(a) requires a copy "denominated 'proposed' and unsigned" attached to the motion. Hawaii is the only one of the three that requires the changes to be visible.

Responding to an amendment

Rule 15(a)(3): a party pleads in response to an amended pleading "within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer," unless the court orders otherwise.

Whichever is longer. An amendment served early does not shorten the original period; one served late still gives at least 10 days.

Note that 10 is more than 7, so Rule 6(a)'s weekend-exclusion rule does not apply to it — those are 10 calendar days.

Amendments during and after trial

Rule 15(b)(1) — 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." Amendment to conform may be made on motion of any party "at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues."

Rule 15(b)(2) — objection at trial. Where evidence is objected to as outside the issues made by the pleadings, "the court may allow the pleadings to be amended 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 such evidence would prejudice the party in maintaining the party's action or defense upon the merits." The court may grant a continuance to let the objecting party meet the evidence.

The burden sits on the objecting party. And note that a trial amendment under Rule 15(b) is not subject to the Ramseyer requirement, which by its terms applies to a motion or stipulation to amend a pleading.

Relation back: three routes

Rule 15(c) is broader than the versions in the neighbouring states, because it opens with a route the others lack:

An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Route (1) is the one to check first. If the statute supplying the limitations period has its own relation-back provision, and it is more generous, it governs. That mirrors the modern federal formulation in FRCP 15(c)(1)(A). Washington's CR 15(c) and Oregon's ORCP 23 C contain only the equivalents of routes (2) and (3).

And note what route (3) does not say. The federal rule and its Washington and Oregon counterparts require the new party's notice and knowledge to arrive within a defined window — the limitations period, or the service period. Hawaii's Rule 15(c)(3) states the two conditions without attaching an express outer period to them in the rule text.

Supplemental pleadings

Rule 15(d): on motion, reasonable notice and just terms, the court may permit a supplemental pleading setting forth "transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented."

"Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense." If the court deems it advisable that the adverse party plead to the supplemental pleading, "it shall so order, specifying the time therefor."

A supplemental pleading always requires a motion; the as-of-course right in Rule 15(a)(1) covers amendments only.

Where amendment meets waiver

Rule 12(h)(1) saves a personal jurisdiction, venue, process or service defence that is included "in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course."

The as-of-course amendment only. Once a responsive pleading has been served, that route is closed, and a Rule 15(a)(2) amendment by leave will not revive the defence — no matter how carefully it is Ramseyer-marked.

How Hawaii compares

A short checklist

1. Check whether a responsive pleading has been served. If not, amend as of course — no motion, no Ramseyer markup.
2. For a pleading needing no response, check the trial calendar as well as the 20 days.
3. Prepare the proposed pleading in Ramseyer formatting: additions underscored, deletions bracketed and stricken.
4. Reproduce the whole pleading. No incorporation by reference without leave.
5. File the clean copy after leave is granted, with the markup removed, and serve it forthwith. The order is not the amendment.
6. Calendar the response — remaining time or 10 calendar days from service, whichever is longer.
7. On limitations, check Rule 15(c)(1) first — the statute supplying the limitations period may have its own relation-back rule.
8. If you are preserving a Rule 12(h)(1) defence, do it in the as-of-course amendment.

Where these rules live

• Haw. R. Civ. P. 6 — Times
• Haw. R. Civ. P. 7 — Pleadings allowed; form of motions
• Haw. R. Civ. P. 8 — General rules of pleading
• Haw. R. Civ. P. 12 — Defenses and objections
• Haw. R. Civ. P. 15 — Amended and supplemental pleadings
• Haw. R. Civ. P. 56 — Summary judgment

Circuit court rules add their own filing requirements. This page explains what the rules say. It isn't legal advice.