Consequently, Skydive, presumably recognizing the defect in its pleading upon which the Rule 12(b)(6) was based, did not pursue a Rule 59(e) motion, and had no alternative but to appeal the motion to dismiss.Ĭlearly, Rule 15(a) favors a liberal approach to the amendment of pleadings. Thus, while the court articulated the logical time to request leave to amend to correct a Rule 12(b)(6) pleading defect is after a finding the original pleading was deficient, it also recognized that opportunity is foreclosed where, as here, the case is dismissed with prejudice. Further, a Rule 59(e) motion is not mandatory. A motion for reconsideration is not an option if counsel has determined, through discovery, or otherwise, that the pleading is insufficient. Initially looking at the court’s treatment of Rule 12(b)(6), it determined if, as here, the motion to dismiss is granted, a Rule 59(e) motion is an alternative, but only if the party legitimately believes the pleading was sufficient. 1 Skydive appealed, the Court of Appeals affirmed, and on Writ of Certiorari, the Supreme Court reversed, remanding the case to the circuit court, allowing Skydive the opportunity to file an amended complaint.īecause a Rule 12(b)(6) motion tests the sufficiency of a complaint rather than the merits of the claim, it is to be determined based solely upon the pleading. Pursuant to Rule 12(b)(6), the lower court dismissed Skydive’s claims against the individual employees, pursuant to the SC Tort Claims Act, without allowing Skydive to amend its complaint. Among the recitations from the complaint were Skydive’s allegations that at all relevant times the individual employees were acting as agents of the County and the Department. Horry County, et al, 2019 WL 1146068 (March 13, 2019).īriefly, without extreme attention to the facts, Skydive Myrtle Beach (“Skydive”) initiated this action alleging Horry County, Horry County Department of Airports (“Department”) and several of their employees improperly attempted to remove Skydive from space it leased at Grand Strand Airport. What happens, however, when the court dismisses a claim, with prejudice, pursuant to Rule 12(b)(6) and does not consider a party’s request to amend? That issue was recently addressed by the South Carolina Supreme Court in Skydive Myrtle Beach, Inc. Otherwise, amendment may be upon written consent of the adverse party or by leave of court leave shall be freely given when justice requires and amendment does not prejudice any other party. Rule 15(a) provides that a party may amend its pleading, as a matter of course, at any time before or within 30 days after a responsive pleading. Rule 12(a) instructs the practitioner on procedure following the denial of a Rule 12(b)(6) motion but fails to provide guidance as to applicable process if such a motion is granted. Such motion may be made in any permitted pleading or even upon the trial of the case. It is well established that the defense of failure to state facts sufficient to constitute a cause of action may be set forth by way of motion, pursuant to Rule 12(b)(6). Also by definition, the rules shall be construed to achieve the speedy and inexpensive determination of every action. The South Carolina Rules of Civil Procedure, by definition, are intended to govern the procedure followed in all South Carolina courts in all civil actions, whether legal or equitable. Maynard Nexsen PC Maynard Nexsen PC Main Content Main Menu Menu
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