In federal court, Rule 15 of the Federal Rules of Civil Procedure allows a party to amend its pleading only with the opposing party's consent or the court's leave when justice so requires. With this rule, leave to amend a pleading is freely granted. However, what may be unclear for many attorneys is how to preserve error when amending a complaint after some claims have been dismissed.
This issue is likely to occur more often than one might think. One of the most common ways is when a trial court rules on a motion to dismiss, dismissing multiple causes of action. Another method by the trial court can be to grant the motion to dismiss the incurable cause of action with leave or without leave to amend. For example, a trial court might dismiss an incurable cause of action, giving the plaintiff the right to leave to amend such actions that were in the original complaint.