In its decision in Carpenter v. Kenneth Thompson Builder, Inc., et al., the Mississippi Court of Appeals had some sharp footnotes aimed at MDOT regarding opposition to a motion to amend:
We recognize that MDOT may have had a reason to not agree to the entry of an order allowing an amendment to the complaint. However, based on the clear instruction in Mississippi Rule of Civil Procedure 15 that leave to amend be granted “freely,” a motion for leave to amend pleadings is not the type of motion that should normally be contested. For the denial of a motion to amend to be proper, the opposing party must show some type of prejudice.
 Matters set for a hearing should be of significant merit. Mississippi Rule of Professional Conduct 3.1 provides that “[a] lawyer shall not . . . controvert an issue therein, unless there is a basis in law and in fact for doing so . . . .” Rule 3.2 provides that “[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” The Comment states “[d]ilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose.” Typically, orders granting leave to amend should be routinely executed, without the necessity of a hearing, unless one party has a real and clearly stated objection that is included in a responsive pleading.
¶ 7, nn. 2 & 3. Generally, as an attorney, I would prefer not having the MRPC quoted at me by the court in a civil case. Ouch!
Today, the MSSC reversed the COA. What had happened was that Carpenter, having sued MDOT, wanted to amend her complaint to add some folks, but couldn’t get a hearing set before the SOL would run. So she filed a second complaint (i.e., a new lawsuit). This, the MSSC held, was claim-splitting and not allowed.
What’s striking to me is that the MSSC nowhere treats the setting of a hearing, on a motion to amend, as somehow improper. MDOT apparently didn’t file a response opposing the motion, which the COA treats as suggestive that MDOT didn’t have a good basis for opposing it. But the MSSC merely notes that
no special circumstances are present to justify an exception to the procedural bar. The second motion to amend was filed almost a year after Carpenter became aware of the existence of the new defendants; multiple timely court dates were available for the parties to work with; Carpenter’s own attorney had limited availability, and no bad faith is evident from any of the parties regarding the scheduling.
And it seems that, in this case, requiring a hearing on a motion to amend effectively jinxed the suit against the new parties. So contra the COA’s wrist-slapping, “no bad faith is evident” in requiring a hearing to be set on a motion to amend, even if you haven’t filed a response opposing the motion? Not necessarily how TBA would play, but there you have it if you want it.
… Comments? If the movant has the burden, is it ethical to make ‘em show up & convince the court, even if you don’t have specific grounds to oppose it?