A complaint is filed. Defendant moves to dismiss. Plaintiff believes she can address the alleged deficiency in the complaint with an amendment to the complaint. Does she have to file a motion to amend her complaint and have it heard before a hearing on the motion to dismiss? Or does she have the right to file an amended complaint as a matter of right?
The answer to this question depends on whether a motion to dismiss is a “responsive pleading.” Rule 15.01 of the Tennessee Rules of Civil Procedure provides a party may amend its pleading “once as a matter of course at any time before a responsive pleading is served[.]” Thus, if a motion to dismiss is not a responsive pleading, plaintiff can amend her complaint without leave of court if she has not previously amended the complaint.
Tennessee case law provides that a motion to dismiss is not a responsive pleading and therefore under Rule 15.01 the plaintiff has an absolute right to file an amended complaint. Grose v. Kustoff, 2017-01984-COA-R3-CV, 2019 WL 244469 , at * 4 (Tenn. Ct. App. Jan. 17, 2019); Mosby v. Colson, No. W2006-00490-COA-R3-CV, 2006 WL 2354763, at *12 (Tenn. Ct. App. Aug. 14, 2006) (citing Adams v. Carter County Mem’l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977) (noting that a motion to dismiss is not a responsive pleading for purposes of Rule 15.01). Thus, a motion to amend the complaint is not necessary because the absolute right to amend is granted in Rule 15.01 itself (assuming that the plaintiff has not previously amended the complaint).
Indeed, some courts have held that a plaintiff who files a motion to amend under such circumstances loses the right to argue that the complaint is automatically amended by the filing of a motion and then leave of court is necessary to amend. See City of Oak Ridge v. Levitt, 493 S.W.3d 492, 497 n.3 (Tenn. Ct. App. 2015) (noting that the plaintiff chose not to take advantage of Rule 15.01 allowance of an amended pleading without leave of court); Mosley v. State, No. W2014-01307-COA-R3-CV, 2015 WL 3971883, at *5 (Tenn. Ct. App. June 30, 2015) (indicating that where a plaintiff does not take advantage of its right to amend without leave of the court, this appellate court cannot correct that choice on appeal).
Thus, the correct approach for a plaintiff who is facing a motion to dismiss (but no answer has been filed) and who believes that an amended complaint will cure the allegedly defective original complaint is to simply file an amended complaint, referencing that you are doing so under Rule 15.01. Ideally, the amended complaint should be filed before the hearing on defendant’s motion to dismiss and before any response to the motion to dismiss is filed.
However, if an answer to the complaint has been filed, or if plaintiff has previously amended the complaint, a motion seeking leave to amend is required if plaintiff believes another amendment is necessary. Once again, the motion seeking leave to amend should be filed (and ideally heard) before the motion to dismiss is set for hearing.