SUPREME COURT OF ARIZONA
En Banc
SUZANNE TYMAN, ) Arizona Supreme Court
) No. CV-06-0008-PR
Plaintiff-Appellant, )
) Court of Appeals
v. ) Division One
) Nos. 1 CA-CV 05-0165
HINTZ CONCRETE, INC., an Arizona ) 1 CA-CV 05-0352
corporation; HAINES CONSTRUCTION, ) (Consolidated)
INC., an Alaska corporation, )
) Maricopa County
Defendants-Appellees. ) Superior Court
__________________________________) No. CV2004-010551
)
SUZANNE TYMAN, )
)
Plaintiff-Appellant, ) O P I N I O N
)
v. )
)
NEW SONG UNITED METHODIST CHURCH, )
a non-profit Arizona corporation, )
)
Defendant-Appellee. )
)
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Michael J. O'Melia, Judge
AFFIRMED
________________________________________________________________
Memorandum Decision of the Court of Appeals, Division One
Filed Dec. 8, 2005
VACATED
________________________________________________________________
YEN PILCH KOMADINA & FLEMING, P.C. Phoenix
By F. Kenton Komadina
Robert E. Yen
Caroline A. Pilch
Neil Landeen
Attorneys for Suzanne Tyman
SKYPECK & SORENSEN Phoenix
By John H. Ishikawa
Attorneys for Hintz Concrete, Inc.
CHEIFETZ IANNITELLI MARCOLINI, P.C. Phoenix
By Steven W. Cheifetz
Matthew Klopp
Attorneys for Haines Construction, Inc.
SWENSON STORER ANDREWS & FRAZELLE, P.C. Phoenix
By Michael J. Frazelle
Kimberly J. Sayre
Attorneys for New Song United Methodist Church
________________________________________________________________
H U R W I T Z, Justice
¶1 This case requires us to interpret Arizona Rule of
Civil Procedure 15(c), which provides that in certain
circumstances an amended complaint “relates back to the date of
the original pleading” for statute of limitations purposes.
I.
¶2 On June 4, 2002, Suzanne Tyman tripped and fell at a
sidewalk construction site. She sustained personal injuries and
retained counsel to pursue redress.
¶3 Tyman initially filed a notice of claim against the
City of Surprise pursuant to A.R.S. § 12-821.01(A) (2001).
Tyman learned, however, that the City was not responsible for
the construction site at which she sustained her injuries. Her
counsel then sent letters of representation to Arizona Public
Service and Mastec Construction. Tyman later learned that
neither had any involvement with the construction site.
2
¶4 On the eve of the expiration of the statute of
limitations, Tyman still had not identified the parties
responsible for the construction site. She nevertheless filed a
complaint in superior court on June 2, 2004, two days before the
two-year statute of limitations expired. See A.R.S. § 12-542(1)
(2003) (providing two-year limitations period for personal
injury claims). The complaint named as defendants Arizona
Public Service; Mastec Construction; Pinnacle West Capital
Corporation; Pinnacle West Construction, LLC; Temcon Concrete
Construction Company; Bob’s Barricades, Inc.; United Rentals
Highway Technologies, Inc.; and thirty fictitious defendants.
¶5 After further investigation, Tyman filed an amended
complaint on August 23, 2004. The amended complaint dropped all
non-fictitious defendants named in the original complaint and
instead sought damages against Hintz Concrete, Inc.; Haines
Construction, Inc.; and New Song United Methodist Church
(collectively, the “New Defendants”). Tyman served Hintz
Concrete and New Song with the amended complaint eighty-four
days after the statute of limitations expired. Haines
Construction was served seven days later.
¶6 The New Defendants moved for summary judgment, arguing
that the statute of limitations barred the amended complaint.
The superior court granted the New Defendants’ motions and
entered judgment. The court of appeals affirmed. Tyman v.
3
Hintz Concrete, Inc., 1 CA-CV 05-0165 (Ariz. App. Dec. 8, 2005)
(mem. decision).
¶7 Tyman petitioned this court for review. We granted
review because the courts below have interpreted Rule 15(c)
inconsistently. We have jurisdiction pursuant to Arizona
Constitution article 6, section 5, clause 3 and A.R.S. § 12-
120.24 (2003).
II.
¶8 Rule 15(c) provides, in relevant part:
Whenever the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in
the original pleading, the amendment relates back to
the date of the original pleading. An amendment
changing the party against whom a claim is asserted
relates back if the foregoing provision is satisfied
and, within the period provided by law for commencing
the action against the party to be brought in by
amendment, plus the period provided by Rule 4(i) for
service of the summons and complaint, the party to be
brought in by amendment, (1) has received such notice
of the institution of the action that the party will
not be prejudiced in maintaining a defense on the
merits, and (2) knew or should have known that, but
for a mistake concerning the identity of the proper
party, the action would have been brought against the
party.
¶9 The purpose of Rule 15(c), like the federal rule upon
which it is modeled, is “to ameliorate the effect of the statute
of limitations.” See 6A Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 1497 (2d ed.
1990) (describing Fed. R. Civ. P. 15(c)). Rule 15(c) permits
4
this amelioration upon three conditions: (1) the claim in the
amended pleading must arise “out of the conduct, transaction, or
occurrence” alleged in the original complaint, Ariz. R. Civ. P.
15(c); (2) “within the period provided by law for commencing the
action against the party to be brought in by amendment, plus the
period provided by Rule 4(i) for service of the summons and
complaint,” the new defendant must have “received such notice of
the institution of the action that the party will not be
prejudiced in maintaining a defense on the merits,” Ariz. R.
Civ. P. 15(c)(1); and (3) during the same period, the new
defendant either “knew or should have known that, but for a
mistake concerning the identity of the proper party,” the new
defendant would have been named in the original complaint, Ariz.
R. Civ. P. 15(c)(2).
A.
¶10 The first requirement of Rule 15(c) is not at issue
here. The amended complaint plainly involved the same
occurrence described in the original complaint.
¶11 Nor is there any question that the second requirement
was satisfied. Arizona Rule of Civil Procedure 4(i) allows
service of a complaint within 120 days of filing. The New
Defendants were served with the amended complaint, and therefore
received notice of the claim, fewer than 120 days after the
original complaint was filed. A defendant brought in through an
5
amended complaint suffers no prejudice for purposes of Rule
15(c)(1) if served “within the time that would have been proper
if [the defendant] had been correctly named in the first place.”
Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 466, 799
P.2d 801, 807 (1990).
B.
¶12 The case before us turns, then, on whether the third
requirement of Rule 15(c) was satisfied — whether during the
specified time period, the New Defendants “knew or should have
known that, but for a mistake concerning the identity of the
proper party,” they would have been named in the original
complaint. The courts below took differing approaches to this
issue.
¶13 The superior court’s minute entry granting summary
judgment concluded, without elaboration, that “there is no
mistake concerning the identity of the proper party.” The court
also relied on the fact that the New Defendants “had absolutely
no notice or knowledge of the claim until” the statute of
limitations had run.
¶14 The court of appeals, on the other hand, assumed
arguendo the existence of a “cognizable mistake under Rule
15(c).” Tyman, 1 CA-CV 05-0165, ¶ 10. But it nonetheless
affirmed the judgment below, holding that Tyman presented no
evidence that the New Defendants “knew or should have known
6
within the time period specified by Rule 15(c)” that they would
have been included in the original complaint but for the
mistake. Id. ¶ 11. The court of appeals stressed that the New
Defendants did not know of the accident until being served with
the amended complaint. Id. The court also held that service of
the amended complaint did not confer on the New Defendants the
knowledge required under Rule 15(c)(2). Id.
1.
¶15 The superior court erred in interpreting Rule 15(c) as
requiring that the New Defendants know of Tyman’s claim before
expiration of the statute of limitations. Rule 15(c)(2) does
not require knowledge of a cognizable mistake within the
original two-year statute of limitations period. Rather, the
Rule expressly provides for relation back when the defendant
knew or should have known of the mistake within the statute of
limitations period “plus the period provided by Rule 4(i) for
service of the summons and complaint.” Ariz. R. Civ. P. 15(c)
(emphasis added).
¶16 Nor does Rule 15(c)(2) require, as the court of
appeals suggested, that a new defendant know before the end of
the original limitations period about the occurrence alleged in
the complaint. Rule 15(c)(2) only requires knowledge during the
limitations period plus the period provided for service by Rule
4(i) of “a mistake concerning the identity of the proper party.”
7
The Rule does not require that a defendant have knowledge of the
occurrence underlying the complaint before learning of the
mistake.
¶17 The court of appeals also erred in suggesting that
service of an amended complaint cannot confer the knowledge
required under Rule 15(c)(2). In some cases, comparison of the
amended complaint to the original pleading will, or should, give
a defendant sufficient knowledge of the mistake in identity.
For example, in Ritchie, the original complaint sought damages
for injuries caused by a mule ride at the Grand Canyon. The
defendant was initially identified as Fred Harvey Transportation
Company “doing business as Grand Canyon Scenic Rides.” 165
Ariz. at 462, 799 P.2d at 803. After the statute expired, the
plaintiff learned that Grand Canyon Scenic Rides, a separate
corporation unaffiliated with the Harvey Corporation, conducted
the mule ride. She amended the complaint accordingly. Id.
When served with the amended complaint, the new defendant in
Ritchie surely knew, or should have known, that its omission
from the original complaint was caused by a mistake concerning
identity. Thus in Ritchie there understandably was no dispute
as to whether the new defendant knew or should have known of the
plaintiff’s mistake; the case turned entirely on other issues.
¶18 Were we to adopt the court of appeals’ assumption that
Tyman made a mistake cognizable under Rule 15(c)(2), the next
8
question would therefore be whether service of the amended
complaint gave the New Defendants sufficient knowledge of that
mistake. But we need not address the knowledge issue today
because, like the superior court, we conclude that Tyman made no
“mistake concerning the identity of the proper party” in the
original complaint.
C.
¶19 Although Arizona courts have not interpreted the term
“mistake” in Rule 15(c), other jurisdictions have given the word
its ordinary meaning when interpreting similar provisions: “a
wrong action or statement proceeding from faulty judgment,
inadequate knowledge, or inattention.” Leonard v. Parry, 219
F.3d 25, 28 (1st Cir. 2000) (quoting Webster’s Ninth New
Collegiate Dictionary 760 (1983) and interpreting Fed. R. Civ.
P. 15(c)); Centuori v. Experian Info. Solutions, Inc., 329 F.
Supp. 2d 1133, 1138 (D. Ariz. 2004) (same); accord Pan v. Bane,
141 P.3d 555, 563-64 ¶¶ 24-31 (Okla. 2006) (interpreting Okla.
Stat. tit. 12, § 2015(C)(3)(b) (2006)); see also Black’s Law
Dictionary 1022 (8th ed. 2004) (defining mistake as “[a]n error,
misconception, or misunderstanding; an erroneous belief”). To
decide whether a Rule 15(c)(2) “mistake” has occurred, the court
must determine “whether, in a counterfactual error-free world,
the action would have been brought against the proper party.”
Leonard, 219 F.3d at 29 (interpreting Fed. R. Civ. P. 15(c)(3)).
9
Therefore, “what the plaintiff knew (or thought he knew) at the
time of the original pleading generally is the relevant datum in
respect to the question of whether a mistake concerning identity
actually took place.” Id.; accord Centuori, 329 F. Supp. 2d at
1137-41.
¶20 In deciding whether the plaintiff has made a mistake,
we start from the assumption that, “by definition, every mistake
involves an element of negligence, carelessness, or fault.”
Leonard, 219 F.3d at 29; accord Centuori, 329 F. Supp. 2d at
1138. Thus, Rule 15(c) “encompasses both mistakes that were
easily avoidable and those that were serendipitous.” Leonard,
219 F.3d at 29.
¶21 Not every omission of a defendant from an original
pleading is a mistake cognizable under Rule 15(c)(2). Because
Rule 15(c)(2) requires a mistake concerning the identity of the
proper party, it plainly does not cover a “deliberate decision
not to sue a party whose identity plaintiff knew from the
outset.” Leonard, 219 F.3d at 29 (quoting Wells v. HBO & Co.,
813 F. Supp. 1561, 1567 (N.D. Ga. 1992)); accord Centuori, 329
F. Supp. 2d at 1139-40. For the same reason, “a mistake of law
by counsel regarding whom to name in a lawsuit” is not a Rule
15(c)(2) mistake. O’Keefe v. Grenke, 170 Ariz. 460, 465, 825
P.2d 985, 990 (App. 1992); accord Leonard, 219 F.3d at 31.
Neither is there a Rule 15(c) mistake when “defendants [are]
10
added because of a new legal theory” or “to replace fictitious
defendants.” Servs. Holding Co. v. Transam. Occidental Life
Ins. Co., 180 Ariz. 198, 209, 883 P.2d 435, 446 (App. 1994).
Lack of knowledge as to the appropriate defendant — as opposed
to a mistaken belief that a defendant is liable — does not
constitute a Rule 15(c)(2) mistake.
¶22 Thus, the superior court typically must determine,
through reference to the original complaint, analysis of
affidavits or other evidence submitted by the parties, and by
applying common sense, whether the new defendant truly was
omitted because of a “mistake concerning the identity of the
proper party.” It is the plaintiff’s burden to establish the
requisite mistake. Leonard, 219 F.3d at 28; see also Levinson
v. Jarrett ex rel. County of Maricopa, 207 Ariz. 472, 476 ¶ 13,
88 P.3d 186, 190 (App. 2004) (discussing the plaintiff’s failure
to prove a mistake).
¶23 In the case at hand, the superior court correctly
determined that Tyman had not discharged her burden of
demonstrating mistake. Indeed, the affidavits of her counsel,
confirmed by counsel’s statements at oral argument, make plain
that no mistake concerning the identity of the proper parties
was made in this case. When the initial complaint was filed,
plaintiff did not know or think she knew that the original
defendants were liable for her injuries. Rather, she believed
11
that the original defendants were not liable, and she was simply
unaware of who was. Just as naming a “John Doe” defendant in
the initial complaint is not a Rule 15(c)(2) mistake, it is not
a mistake to name placeholder defendants while the plaintiff
attempts to identify the appropriate parties. See Garrett v.
Fleming, 362 F.3d 692, 696 (10th Cir. 2004); Baskin v. City of
Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998); Servs. Holding
Co., 180 Ariz. at 209, 883 P.2d at 446.
D.
¶24 Tyman argues that because her counsel acted with
reasonable diligence during the limitations period and could not
discover the responsible parties, Rule 15(c)(2) relation back
should be allowed despite the absence of a cognizable mistake.
But this argument conflates the “discovery” rule for tolling the
statute of limitations — under which the statute does not begin
to run until a plaintiff could reasonably have discovered the
identity of a responsible defendant, see Walk v. Ring, 202 Ariz.
310, 315-16 ¶¶ 20-23, 44 P.3d 990, 995-96 (2002) — with the
mistake requirement of Rule 15(c)(2). Rule 15(c)(2) requires a
mistaken belief at the time of filing that a defendant is
appropriately named, as well as subsequent discovery that there
was a mistake in identification. Rule 15(c)(2) is not satisfied
12
when the plaintiff simply has no knowledge of the identity of
the appropriate defendant when filing the original complaint.1
E.
¶25 Tyman also suggests, citing Ritchie and the
Supplemental State Bar Committee Note to Rule 15(c)(2), that
relation back is allowed without regard to mistake whenever a
new party is served within 120 days of the expiration of the
statute of limitations. Although certain language in Ritchie
and the Note provide superficial support to this argument, it
fails.
¶26 Ritchie did not concern the “mistake” requirement of
Rule 15(c)(2). Rather, Ritchie addressed language in a prior
version of the Rule that required that the added defendant
obtain the notice required by the Rule “within the period
provided by law for commencing the action against him.” 165
Ariz. at 463, 799 P.2d at 804. We interpreted the phrase to
mean the limitations period plus any additional time given by
1
A plaintiff’s diligence in discovering the identity of a
defendant may be relevant to the trial court’s exercise of
discretion in considering a motion to amend a complaint pursuant
to Arizona Rule of Civil Procedure 15(a)(1). See generally 6A
Wright, Miller & Kane, supra, § 1498 (discussing Fed. R. Civ. P.
15(a)). In this case, however, Tyman filed the amended
complaint before a responsive pleading or motion for summary
judgment was filed; the amendment was thus filed as of right and
required no leave of the court. See Ariz. R. Civ. P. 15(a)(1).
13
the Rules of Civil Procedure to serve the complaint.2 Id. at
465-68, 799 P.2d at 806-09.3 Ritchie did not deal with the
Rule’s express requirement of a mistake, let alone abrogate it.
¶27 Nor does the Supplemental State Bar Committee Note to
Rule 15(c), which simply explains the holding in Ritchie,
achieve that result indirectly. This is made plain by the 1996
amendment to Rule 15(c), which codified the holding in Ritchie
while retaining the “mistake” language in Rule 15(c)(2).4 If
Ritchie had done away with the mistake requirement, there would
2
When Ritchie was decided, Arizona Rule of Civil Procedure
6(f) gave the plaintiff one year to serve a complaint after it
was filed. 165 Ariz. at 466, 799 P.2d at 807.
3
In so holding, we declined to follow Schiavone v. Fortune,
477 U.S. 21 (1986), which interpreted Federal Rule 15(c) as
requiring that added defendants receive notice of a claim before
the statute of limitations expired. Id. at 465-68, 799 P.2d at
806-09.
4
Before 1996, Arizona Rule 15(c) required that an added
defendant receive notice of the plaintiff’s claim “within the
period provided by law for commencing the action against the
party to be brought in by amendment.” Ariz. R. Civ. P. 15(c),
16 A.R.S. Ann. (Supp. 1996). Rule 15(c) was amended in 1996 and
now requires that the notice and knowledge be imparted within
the limitations period “plus the period provided by Rule 4(i)
for service of the summons and complaint.” Ariz. R. Civ. P.
15(c).
Federal Rule 15(c) was similarly amended in 1991 to address
the Schiavone holding, and now requires that the knowledge and
notice required under Rule 15(c) be imparted to the new
defendant “within the period provided by Rule 4(m) for service
of the summons and complaint.” See Fed. R. Civ. P. 15 advisory
committee’s note, 1991 amend.
14
have been no reason to retain the word “mistake” in the 1996
amendment.
¶28 We therefore conclude that the mistake requirement
survived Ritchie. Levinson, 207 Ariz. at 475 ¶ 12, 88 P.3d at
189 (“The plain language of [Rule 15(c)(2)] still requires [a
mistake]; Ritchie did not change it.”). And, because Tyman
cannot establish the requisite mistake in this case, the
superior court correctly rejected her relation-back argument.
III.
¶29 For the reasons above, we conclude that Tyman’s
amended complaint does not relate back to the date of the
original complaint. The superior court therefore correctly
concluded that the statute of limitations barred the amended
complaint against the New Defendants. The judgment of the
superior court is affirmed; the memorandum decision of the court
of appeals is vacated.
__________________________________
Andrew D. Hurwitz, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
15
_______________________________________
Michael D. Ryan, Justice
_______________________________________
W. Scott Bales, Justice
16