Does Rule 15(b)(2) (Which Provides That, If An Issue Not Raised by the Pleadings Is Tried by the Parties, It Is to Be Considered As If It Had Been Pled) Apply to Summary Judgment? Circuit Split

Posey v. NJR Clean Energy Ventures Corp., 2015 U.S. Dist. LEXIS 146688 (D.N.J. Oct. 29, 2015): 

1   Plaintiff contends that, pursuant to Fed. R. Civ. P. 15(b)(2), Defendant "effectively consented by its conduct" to resolve the new theories of liability raised in the proposed amended complaint through the pending motion for summary judgment, because Defendant argued the substantive merits of the proposed amendment in its summary judgment briefing. Pl.'s Reply Mem. of Law in Supp. of Mot. for Leave to File Am. Compl. ("Pl.'s Reply Mem.") p 3. Under Rule 15(b)(2), "[w]hen an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings." When analyzing whether there has been implied consent, courts look to "whether the parties recognized that the unpleaded issue entered the case at trial, whether the evidence that supports the unpleaded issue was introduced at trial without objection, and whether a finding [*8]  of trial by consent prejudiced the opposing party's opportunity to respond." Addie v. Kjaer, 737 F.3d 854, 867 (3d Cir. 2013) (citation and internal quotations omitted). Additionally, "an issue has not been tried by implied consent if evidence relevant to the new claim is also relevant to the claim originally pled, because the defendant does not have any notice that the implied claim was being tried." Id. (citation and internal quotations omitted). Currently, there is a circuit split as to whether Rule 15(b)(2) applies on summary judgment, and the Third Circuit has not yet ruled on this issue. Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 676 F.3d 318, 327 n. 7 (3d Cir. 2012) ("Courts of Appeals for the D.C., Ninth, and Eleventh Circuits have concluded that Rule 15(b), captioned 'Amendments During and After Trial,' may not apply to pretrial motions because the Rule is designed to address discrepancies between pleadings and evidence introduced at trial. However, other circuits have applied Rule 15(b) at the summary judgment stage. We decline to address the issue today because resolution of it is unnecessary to the disposition of this case." (citing those circuits declining to apply Rule 15(b) at summary judgment: Harris v. Sec'y, U.S. Dep't of Veterans Affairs, 126 F.3d 339, 344 n. 3 (D.C. Cir. 1997); Crawford v. Gould, 56 F.3d 1162, 1168-69 (9th Cir. 1995); Blue Cross & Blue Shield of Ala. v. Weitz, 913 F.2d 1544, 1550 (11th Cir. 1990); and those applying Rule 15(b) at summary judgment: Cruz v. Coach Stores, Inc., 202 F.3d 560, 569 (2d Cir. 2000); Suiter v. Mitchell Motor Coach Sales, Inc., 151 F.3d 1275, 1279-80 (10th Cir. 1998); Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1030 (6th Cir. 1992); Walton v. Jennings Cmty. Hosp., Inc., 875 F.2d 1317, 1320 n. 3 (7th Cir. 1989); Canion v. Randall & Blake, 817 F.2d 1188, 1193 (5th Cir. 1987).)). Here, I need not resolve the question of whether to apply Rule 15(b) at the summary judgment [*9]  stage, because the evidence relevant to Plaintiff's new legal theories, the Lease and associated documents, is also relevant to her original claims. Moreover, Defendant has explicitly opposed both amending the Complaint to incorporate Plaintiff's new legal theories and addressing the theories at the summary judgment stage. Def.'s Mem. of Law in Opp'n to Pl.'s Mot. for Leave to Amend her Compl. ("Def.'s Opp'n Mem."); Def.'s Reply Mem. of Law in Further Supp. of Def.'s Mot. for Summ. J. Dismissing Pl.'s Claims p 9. Because Defendant has not given implied consent, Rule 15(b)(2) cannot apply.

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