Legal Memorandum: Futility Doctrine and Amendments

Issue: Under federal law, when will an amendment to a complaint be precluded because of futility?

An amendment may be barred by the futility doctrine.  The Supreme Court’s most recent decision in the area is Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010).

Krupski stated the correct rule as follows:

We disagree, however, with respondent’s position that any time a plaintiff is aware of the existence of two parties and chooses to sue the wrong one, the proper defendant could reasonably believe that the plaintiff made no mistake. The reasonableness of the mistake is not itself at issue. As noted, a plaintiff might know that the prospective defendant exists but nonetheless harbor a misunderstanding about his status or role in the events giving rise to the claim at issue, and she may mistakenly choose to sue a different defendant based on that misimpression. That kind of deliberate but mistaken choice does not foreclose a finding that Rule 15(c)(1)(C)(ii) has been satisfied.

Id. at 549.

Significantly in a case postdating Krupski, it was held that suing a defendant who has a form of immunity and the failure to sue the party directly liable constitutes a "mistake" within the meaning of rule 15(c)(1)(C)(ii) which justifies relation back of amendments adding the new parties. See Benson v Univ. of Maine Sys., 857 F. Supp. 2d 171 (D. Me. 2012).

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