We are pro se defendants in a civil action. We incorrectly filed our Counterclaim; we didn't file it in a responsive pleading. So we now need to amend our answer to properly assert it. We now know we should've filed a "Leave of Absence to Amend." Can this be done along with the amended Answer or do we wait until permission is granted before filing the Amended Anwer?
Are there any specific rules surrouding the Leave of Absense? Is it just a Motion without any time limitations? We've scoured the net for anwers and are uneasy just filing it without knowing for sure.
Please help. We hope to file this Monday.
Again, thanks so much for creating this help site!-)
1 Answer from Attorneys
I have been practicing law for nearly 20 years, and have no idea what a "leave of absence to amend" is. While one can certainly assert a counterclaim in a responsive pleading, a counterclaim can also be filed as a separate document. Take a look at rule 55.32 (e). If this is state, rather than federal court, leave of court is freely given to amend where justice requires, and if this is a compulsory counterclaim, it MUST be filed so leave will be given. In Federal court, time limits are typically strictly enforced.
Handling a claim, and a counter claim, in most instances, are not something the average layperson can manage. The rules are a minefield and the pro se litigant wears big shoes.