(dissenting) :
It may well be true, as the opinion of the court states, that insofar as Mr. Young’s claim is concerned the proper defendant would be the Pick-Congress Corporation which operates the Chicago hotel, and which never has been named a defendant in these proceedings. If so it is a matter for appellees to raise in defense on the merits in this action against them. The District Court, however, did not reach the merits, or the question of the sufficiency of the complaint to state a cause of action on the merits. The court dismissed the complaint on the theory the statute of limitations barred the amended complaint against appellees. As appellees state in their brief, the “question is whether the lower Court properly dismissed an action because it was not filed within the time permitted by the Statute of Limitations.” The question then is not whether the Chicago company is the one which should be sued or whether appellees are liable on the merits, but whether the amendment which sought to bring in the latter as defendants was filed in time as to them. This depends upon whether the requirements of Rule 15(c), Fed.R. *250Civ.P., are met. The first of those requirements is that the claim asserted in the amended pleading arose out of the same conduct, transaction or occurrence set forth in the original pleading. The amended complaint meets this requirement. Indeed, in part it duplicates the original complaint. The latter and the amended complaint allege substantial damage through loss of plaintiff’s baggage and clothing because of appellees’ negligence. All else aside this brings the amendment within the requirement of the rule that the claim asserted in the amendment arose out of the conduct set forth in the original pleading, and, therefore, insofar as this requirement of the rule is concerned, relates the amendment back to the date of the original pleading.1
The remaining requirements, where as here there is a change in the party defendant, are that the party to be brought in by amendment has received notice of the institution of the action, is not prejudiced in maintaining his defense on the merits, and knew or should have known that but for a mistake concerning the identity of the proper party the action would have been brought against him.
There is no basis in the record for holding that these requirements are not met; nor does it even appear that the court decided they are not met. All defendants named at the several stages of the proceedings, from the original complaint through this last amendment, are associated with one another in the hotel business. The same counsel has represented their interests throughout the proceedings. Moreover, as appellant points out, it is apparent from the record that at least insofar as appellee Lee House, Inc., is concerned, it was apprised of the proceedings from their inception. See Young v. Albert Pick Hotels, 115 U.S.App.D.C. 400, 320 F.2d 719, where we state the facts about this company’s attempt to appear specially to quash service in that case, an earlier stage of these proceedings. Moreover, no prejudice whatever to defendants, insofar as the merits are concerned, is found or indeed indicated. Thus it appears that as to the present claim of liability against them, whether or not sound on the merits, appellees knew or should have known that the action would have been brought against them rather than as before.
The record does not support unexpressed findings of the trial court that the provisions of Rule 15(c), Fed.R.Civ. P., are not satisfied. At the least there should be a remand for a hearing on this issue.2
. With respect to this first requirement of Rule 15(c), the District Court is required to “go back to the original pleading in order to determine the nature of the new claim.” Sidebotham v. Robison, 216 F.2d 816, 823 (9th Cir.). The requirement is fulfilled where the factual situation is not changed even though a different theory of recovery is presented. Cf. Rural Fire Protection Company v. Hepp, 366 F.2d 355, 362 (9th Cir.) ; Heay v. Phillips, 14 Alaska 132, 201 F.2d 220, 222 (9th Cir.), citing Popovitch v. Kasperlik, 76 F.Supp. 233 (D.D.C.). Moreover, the liberality intended by Rule 8, Fed.R.Civ.P., should be considered when determining whether the new claim arose out of the same transaction set forth originally. Cf. Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed. 2d 80; Sidebotham v. Robison, supra, 216 F.2d at 826-827.
. Compare Hoffman v. Halden, 268 F.2d 280, 304 (9th Cir.), where it was clear there was no notice.