Amending Pleadings In Illinois: The Four-Factored Test – A Case Note

Illinois follows a policy of expansively allowing amendments to pleadings so cases can be decided on their merits instead of technicalities.  And while parties are generally given a lot of latitude to amend, the right to do so is not absolute.  The Court still has broad discretion to permit or disallow a request to amend.

Zweig v. Bozorgi Limited Partnership, 2016 IL App (1st) 152628-U, a business dispute lawsuit, provides a useful synopsis of Illinois’s governing pleading amendment factors and gives clues as to when a court exceeds its bounds in refusing an attempt to amend.

The Zweig plaintiff filed breach of contract, fiduciary duty and fraud counts against various defendants stemming from a failed partnership.  The plaintiff alleged he was tricked into investing $2M into a failed ambulatory surgical partnership.  The trial court first denied the plaintiff’s request to amend its complaint and then dismissed the complaint with prejudice.  Plaintiff appealed.

Reversing, the appeals court first stated the well-settled principles that govern pleading amendments in Illinois.  At any time before final judgment, a party can amend its pleading to change the parties, facts or causes of action.

The four factors a court considers when deciding whether to allow an amended pleading are: (1) whether the proposed amendment cures the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend could be identified.

The most important factor is the second one – whether there is prejudice or surprise to the opponent if the pleading is amended.  Prejudice is shown where a delay in seeking to amend leaves a defendant unprepared to defend a new theory at trial.  Where a defendant still has time to take discovery and prepare a defense, there will be no prejudice.

(¶¶ 12-13, 18-19)

In finding the trial court overreached in denying the plaintiff’s attempt to amend, the appeals court noted that in the early pleading stage, a plaintiff should be allowed to amend his complaint where the proposed amendment cures any defects in the current (prior) complaint.  The court also held there was no prejudice to the defendant since in the amended pleading, plaintiff was proceeding on the same legal claims he previously filed – he just amplified some of the key facts.

Addressing the third and fourth amendment to pleading factors, the Court found the proposed amended complaint timely since it was brought within one month of the filing date of the defendants’ motion to dismiss the prior Complaint.  In addition, this was only the plaintiff’s second request to amend and the first request was done only to preserve its appeal rights on an unrelated count.  Taken together, the four factors weighed in favor of allowing the plaintiff to amend its complaint.


This case serves as a recent and relevant illustration of the pleading amendment guideposts in Illinois.  While a court has broad discretion to grant or deny a request to amend, that discretion still has some checks on it.

The case also teaches that if the denial of a motion to amend prevents a party from fully presenting its claim and if the opposing party has time to discover and defend against the amended pleading’s salient facts, there is likely no danger of prejudice or unfair surprise and the court should err on the side of allowing the proposed amendment.


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Litigation attorney at Bielski Chapman, Ltd. representing businesses and individuals in business litigation, post-judgment enforcement, collections and real estate litigation.