Legal Memorandum: Amending a pleading before or after summary judgement

Issue: Under Illinois law, when should the court permit a party to amend pleadings?

The Illinois Code of Civil Procedure states in relevant part: "Before or after the entry of a summary judgment, the court shall permit pleadings to be amended upon just and reasonable terms." [statref]735 ILCS 5/2-1005(g) (West 2012)[/statref]. In deciding whether a post-summary judgment amendment is proper, the following four factors are considered: "(1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified." Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992).

Under section [statref]2-1005(g)[/statref], amendment may be appropriate where summary judgment is entered on the theory pleaded, but the depositions and affidavits indicate that another theory is viable. Steinberg v. Dunseth, 276 Ill. App. 3d 1038, 1047 (1995). "As a rule, the circuit court’s ruling to allow or deny an amendment is a matter of discretion and will not be reversed absent an abuse of discretion." Board of Directors of Bloomfield Club Recreation Ass’n v. The Hoffman Group, Inc., 186 Ill. 2d 419, 432 (1999). A circuit court abuses its discretion when it refuses to allow a party to amend when a cause of action can be stated if the amendment is permitted. Moiseyev v. Rot’s Building & Development, Inc., 369 Ill. App. 3d 338, 343 (2006). The party seeking leave to […]