It is a reality of litigation that the facts of a case can change in significant ways between the filing of the complaint and trial, but litigants do not always amend pleadings to address these changes. A recent decision by the U.S. Court of Appeals for the Third Circuit offers incentive to amend in those situations. In West Run Student Housing Associates LLC v. Huntington National Bank, 7 F.3d 165 (3d Cir. 2013), the Third Circuit held that averments in a complaint that is later amended do not amount to judicial admissions.
The procedural posture of the West Run case is not unique. The plaintiff, West Run Student Housing Associates, filed a complaint alleging, inter alia, a breach of contract. The plaintiff claimed that the defendant, Huntingdon National Bank, breached its agreement to provide financing for a housing project. The contract required the bank to provide the financing if the plaintiff sold the requisite number of housing units. The original complaint included averments regarding the number of units sold, and those numbers were not sufficient to trigger the financing requirement. Huntingdon moved to dismiss the original complaint, and the plaintiff, not unexpectedly, amended. The amended complaint did not contain averments regarding the number of housing units sold.
