Leonard v. Parry

United States Court of Appeals
For the First Circuit

No. 99-2107

MITCHELL LEONARD,

Plaintiff, Appellant,

v.

KAY PARRY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lipez, Circuit Judge.

Arend R. Tensen, with whom Van Dorn, Cullenberg, Tensen &
Curtiss, PLLC was on brief, for appellant.
John A. Curran, with whom Jill A. DeMello and Getman,
Stacey, Tamposi, Schulthess & Steere, P.A. were on brief, for
appellee.

July 17, 2000
 SELYA, Circuit Judge. This appeal asks whether, under

particular circumstances, an amendment adding a party after the

expiration of the statute of limitations relates back to the

date on which the plaintiff commenced the action. Although a

straightforward reading of Federal Rule of Civil Procedure

15(c)(3) seems to require an affirmative answer to this

question, a doubt lingers because some courts, spurred by a

mischievous bit of dictum, have glossed the text of the rule.

Resisting the temptation to read more into Rule 15(c)(3) than

its unvarnished language implies, we hold that the attempted

amendment "relates back," and, accordingly, we reverse the

district court's order of dismissal.

I. BACKGROUND

The seeds of this controversy were sown in Lebanon, New

Hampshire, on February 28, 1995, when a Jeep owned by Maureen

Boulanger and operated by Kay Parry collided with a car driven

by Mitchell Leonard. Leonard and his minor child, Jade,

sustained injuries. Since Raymond Boulanger (Maureen's husband)

had arranged for insurance on the Jeep, the Leonards' attorney

contacted the carrier with a view toward settlement of the

personal injury claims.

These negotiations bore some fruit: the parties agreed

to resolve Jade Leonard's claim for a sum certain. They

-3-
prepared a settlement agreement and, in accordance with local

custom, submitted it for approval in a New Hampshire state court

on January 26, 1998. Significantly, the agreement and the

petition in the concomitant "friendly suit" — both of which were

drafted by a lawyer representing the insurer — named only the

policyholder, Raymond Boulanger, as a defendant and misdescribed

him as the operator of the Jeep. A state court judge approved

the settlement on February 18.

Mindful of New Hampshire's three-year statute of

limitations for personal injury claims, see N.H. Rev. Stat. Ann.

§ 508:4(I), Leonard filed suit on January 27, 1998, to recover

for his own injuries. Remarking the existence of diversity

jurisdiction, see 28 U.S.C. § 1332(a), he chose a federal forum.

Emulating the petition in Jade's case, his complaint incorrectly

named Boulanger as the driver and sole defendant.

After the summons and complaint had been served,

defense counsel awoke to the confusion over the driver's

identity. On February 13, he called Leonard's lawyer and shared

this epiphany with the lawyer's secretary. On the same date, he

wrote to the lawyer advising that the papers memorializing the

Jade Leonard settlement would have to be revised to release the

proper defendants. Despite these contacts, Leonard took no

-4-
further action in respect to his case within the limitations

period.

The statute of limitations ran on February 28, 1998.

A few days later, Boulanger — a Massachusetts resident — moved

to dismiss Leonard's suit for lack of in personam jurisdiction.

Leonard conceded the jurisdictional point, but moved to amend

the complaint by substituting Parry as the defendant. The

district court granted the motion to amend without prejudice,

simultaneously dismissing the action as to Boulanger.

Leonard served Parry on May 25. She moved to dismiss,

claiming that she had been sued too late. The district court

agreed. See Leonard v. Parry, No. 98-42, slip op. (D.N.H. July

22, 1999). Following an unsuccessful motion for

reconsideration, Leonard prosecuted this appeal.

II. ANALYSIS

Because Leonard amended his complaint to substitute

Parry for Boulanger after the statute of limitations expired,

his appeal turns on whether this modification "related back" to

the inception of the action. The touchstone for such an inquiry

is Rule 15(c)(3). It provides that an amendment which changes

the party or the naming of the party against whom a claim is

asserted relates back to the date of the original complaint if

— and only if — the claim or defense asserted in the amended

-5-
pleading arose out of the conduct, transaction, or occurrence

set forth or attempted to be set forth in the original pleading

and,

within the period provided by Rule 4(m) for
service of the summons and complaint, the
party to be brought in by amendment (A) 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 (B) 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.

Fed. R. Civ. P. 15(c)(3).

As written, Rule 15(c)(3) has three requirements. The

first (same transaction) clearly is satisfied here: both the

original and the amended complaints derive from precisely the

same conduct. So, too, the second requirement (timely notice):

Parry concedes that Leonard served her within the 120-day

default period prescribed by Rule 4(m).1

This leaves only the third requirement: knowledge of

a mistake in identity. To satisfy this criterion, the

amendment's proponent must show not only that he made a mistake

1
Parry advances some vague ruminations about prejudice — but
these are sound and fury, signifying nothing of legal
consequence. We fail to see how there could be prejudice from
letter-perfect service of process within the default period. In
any event, it strains credulity to argue that Parry somehow was
unfairly harmed by the small incremental delay in receiving
notice. See Leonard, slip op. at 7 (dismissing Parry's
suggestion of prejudice).

-6-
anent the proper party's identity, but also that the later-named

party, within the prescribed time limit, knew or should have

known that, but for this mistake, the action would have been

brought against her.

In this instance, it is plain from the face of the

original complaint — which erroneously stated that Boulanger was

driving at the time of the accident — that Leonard made a

mistake concerning the identity of the proper party defendant.

See generally Webster's Ninth New Collegiate Dictionary 760

(1983) (defining "mistake" as "a wrong action or statement

proceeding from faulty judgment, inadequate knowledge, or

inattention"). By like token, this blunder alone explained

Leonard's failure to sue Parry in the first place.2 Thus, Parry

— who knew to a certainty that she, not Boulanger, had been

operating the Jeep when the accident occurred — knew or should

have known from the moment she was served with the amended

complaint that the action originally would have been brought

against her but for the mistake about who was driving.

Consequently, all the requirements of Rule 15(c)(3) were

2The district court suggested that Leonard might have
intentionally opted to sue Boulanger on a theory of negligent
entrustment (or so Parry could have thought). See Leonard, slip
op. at 7 n.3. This speculation is conclusively refuted by the
fact that both the original and amended complaints were
predicated exclusively on allegations of the driver's negligence
in the operation of the motor vehicle.

-7-
satisfied, the amendment related back to the date of the

original filing, and Parry's limitations defense should have

been rejected.

The district court, however, found to the contrary.

It elected to go beyond the plain language of Rule 15(c)(3),

theorizing that "if a plaintiff knew (or, through the exercise

of reasonable diligence, could have known) the identity of the

proper defendant within the pertinent limitations period, but

waited until after that period lapsed before seeking to add that

defendant, he cannot avail himself of the protections of Rule

15(c)." Leonard, slip op. at 10. Applying this premise, the

court concluded that Leonard's "mistake" did not come within the

rule. See id. at 11-14.

The court's premise is unsound, and its conclusion is

therefore unfounded. Virtually by definition, every mistake

involves an element of negligence, carelessness, or fault — and

the language of Rule 15(c)(3) does not distinguish among types

of mistakes concerning identity. Properly construed, the rule

encompasses both mistakes that were easily avoidable and those

that were serendipitous. The examples assembled by the advisory

committee — e.g., the naming of a nonexistent federal agency or

a retired officer, see Fed. R. Civ. P. 15 advisory committee's

note (1966 Amendment) — confirm this construction. The drafters

-8-
believed that such errors would trigger Rule 15(c)(3)

notwithstanding that reasonable diligence almost always would

prevent them from occurring.

We need not belabor the point. Rule 15(c)(3) requires

courts to ponder whether, in a counterfactual error-free world,

the action would have been brought against the proper party, not

whether the action should have been amended subsequently to

include that party. See Fed. R. Civ. P. 15 advisory committee's

note (1966 Amendment) (explaining that the appropriate question

is whether the proper party "knew or should have known that the

action would have been brought against him initially had there

not been a mistake concerning [identity]" (emphasis supplied)).

Thus, 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. See, e.g., Wells v. HBO & Co., 813 F.

Supp. 1561, 1567 (N.D. Ga. 1992) ("[E]ven the most liberal

interpretation of 'mistake' cannot include a deliberate decision

not to sue a party whose identity plaintiff knew from the

outset."). What the plaintiff learned later, however, cannot be

relevant for this purpose.

We say "for this purpose" because, even though

evaluating the existence of a plaintiff's mistake in light of

-9-
subsequently acquired knowledge is flatly inconsistent with the

language of Rule 15(c)(3), post-filing events occasionally can

shed light on the plaintiff's state of mind at an earlier time.

Cf. United States v. Mena, 933 F.2d 19, 25 n.5 (1st Cir. 1991)

(explaining that events which occur after an incident may bear

on an assessment of an actor's state of mind at an earlier

time). Morever, such events can inform a defendant's reasonable

beliefs concerning whether her omission from the original

complaint represented a mistake (as opposed to a conscious

choice). See Kilkenny v. Arco Marine Inc., 800 F.2d 853, 857

(9th Cir. 1986) ("A plaintiff's failure to amend its complaint

to add a defendant after being notified of a mistake concerning

the identity of a proper party . . . may cause the unnamed party

to conclude that it was not named because of strategic reasons

rather than as a result of the plaintiff's mistake.").3 We limit

our holding accordingly: knowledge acquired by a plaintiff

3 Kilkenny's original complaint targeted the wrong defendant.
With the limitations period still open, the named defendant
answered the complaint, stating exactly the correct defendants'
identities. Kilkenny demonstrated her appreciation of this fact
by including these new defendants in a second suit, but did not
attempt to amend her complaint in her initial action for over
two years (at which point the statute of limitations had run).
See 800 F.2d at 854-55. No such exaggerated fact pattern exists
here: Leonard's conduct after filing the original complaint,
though lackadaisical, could not have led Parry to believe that
she was omitted from that complaint for any reason other than
his mistake.

-10-
after filing his original complaint is without weight in

determining his state of mind at the time he filed the initial

complaint and, thus, in determining whether a mistake concerning

identity occurred. See id. at 856.

There are two other matters that deserve comment. The

first relates to how an able district judge was led astray. In

support of its critical premise, the court relied heavily on

Kilkenny,4 a case which, as indicated above, supports a literal

reading of Rule 15(c)(3). Nevertheless, although reaching a

defensible conclusion, the Kilkenny court gratuitously stated

that "Rule 15(c) was never intended to assist a plaintiff who

ignores or fails to respond in a reasonable fashion to notice of

a potential party." 800 F.2d at 857-58. This mischievous bit

of dictum, which understandably misled not only the court below

but also several other district courts, see, e.g., Brink v.

First Credit Resources, 57 F. Supp. 2d 848, 856-57 (D. Ariz.

1999); Sims v. Montgomery County Comm'n, 873 F. Supp. 585, 611-

12 (M.D. Ala. 1994); Potts v. Allis-Chalmers Corp., 118 F.R.D.

597, 608-09 (N.D. Ind. 1987), is simply wrong. Under the clear

language of Rule 15(c), post-filing events (including inaction

4 The court also drew support from Pessotti v. Eagle
Manufacturing Co., 946 F.2d 974 (1st Cir. 1991). Pessotti
requires no discussion, however, as Rule 15(c) was not at issue
there. See id. at 977 n.2.

-11-
in the face of new information) can be relevant only to the

extent that they (a) shed light upon the plaintiff's state of

mind when he filed the original complaint, or (b) inform an

added party's reasonable belief concerning the cause of her

omission from that complaint.

To be sure, there is an explanation for the Kilkenny

dictum. When no responsive pleading has been filed, a plaintiff

can amend his complaint once without first obtaining leave of

court and, as long as the requirements of Rule 15(c) are met,

relation back is automatic. But when, as in Kilkenny, the

defendants have served responsive pleadings, an amended

complaint can be filed "only by leave of the court or by written

consent of the adverse party." Fed. R. Civ. P. 15(a). What the

plaintiff knew or should have known and what he did or should

have done are relevant to the question of whether justice

requires leave to amend under this discretionary provision.

See, e.g., Foman v. Davis, 371 U.S. 178, 182 (1962) (explaining

that "undue delay" can justify denial of leave to amend under

Rule 15(a)). We think it likely that a blurring between the

15(a) and 15(c) inquiries explains the errant language in

Kilkenny.5

5
Indeed, a leading treatise has foreshadowed this
explanation:

-12-
 In all events, the origin of the Kilkenny dictum is

mostly a matter of academic interest here. In this case, no

responsive pleading had been filed, and the district court

therefore lacked discretion to deny Leonard's proposed

amendment. See Fed. R. Civ. P. 15(a) (stipulating that a "party

may amend the party's pleading once as a matter of course at any

time before a responsive pleading is served"); Dartmouth Review

v. Dartmouth College, 889 F.2d 13, 22 (1st Cir. 1989) (holding

that a motion to dismiss does not qualify as a responsive

pleading for Rule 15(a) purposes). In addition, everything that

we can glean about Leonard's knowledge at the time he filed his

original complaint indicates that he named Boulanger instead of

Parry on the patently erroneous assumption that Boulanger was

the driver. There is no reason to think that this bevue,

A few cases tend to suggest that if plaintiff's own
inexcusable neglect was responsible for the failure to
name the correct party, an amendment substituting the
proper party will not be allowed, notwithstanding
adequate notice to the new party. Although this
factor is germane to the question of permitting an
amendment, it is more closely related to the trial
court's exercise of discretion under Rule 15(a)
whether to allow the change than it is to the
satisfaction of the notice requirements of Rule 15(c).

6A Charles Alan Wright et al., Federal Practice & Procedure §
1498, at 142-43 (2d ed. 1990) (footnotes omitted). Courts'
tendency to collapse the two inquiries in cases of
misidentification is understandable because the parties to be
added, by definition, are not present to argue their position
when the plaintiff initially seeks leave to amend.

-13-
however careless, was anything but an honest mistake concerning

identity.

The final matter we must mention relates to a decision

of this court, Wilson v. United States Government, 23 F.3d 559,

563 (1st Cir. 1994), not adequately discussed by the parties or

the district court. Following injuries sustained during a

stranding at sea aboard a vessel owned by the United States

Navy, Wilson chose to sue his employer, General Electric

Government Services (GEGS), under the Jones Act, 46 U.S.C. §

688. When he belatedly realized that the Jones Act was

ineffectual in the circumstances of his case, he attempted to

train his sights instead on the United States pursuant to the

Public Vessels Act, 46 U.S.C. §§ 781-790, and the Suits in

Admiralty Act, 46 U.S.C. §§ 741-752. See Wilson, 23 F.3d at

560. The statute of limitations had run, and the district court

repulsed this effort. We affirmed, stating three separate,

independently sufficient reasons for rejecting Wilson's argument

that his amendment substituting the government should relate

back under Rule 15(c)(3): (1) there was no showing that the

government had received timely notice; (2) there was no basis

for imputing knowledge of a mistake to the government within the

prescribed time; and (3) there was no mistake concerning

identity within the meaning of the rule. See id. at 562-63. We

explained the third reason as follows:

-14-
 In this case, there was no "mistake
concerning the identity of the proper
party," as required by Rule 15(c)(3).
Rather, Wilson merely lacked knowledge of
the proper party. In other words, Wilson
fully intended to sue GEGS, he did so, and
GEGS turned out to be the wrong party.
Id. at 563.

At first blush, this statement appears to lend comfort

to Parry's position. Any such comfort is illusory. Wilson is

not a case in which a plaintiff intended to sue A and sued B by

reason of a mistake concerning identity. Rather, it is a case

in which the plaintiff chose the wrong theory of liability — the

Jones Act — and sued the wrong party. See id. (concluding that

"Wilson fully intended to sue GEGS"). We agree with the Wilson

court that Rule 15(c)(3) was not designed to remedy a mistake in

the selection of a legal theory.6 See id.; see also Rendall-

Speranza v. Nassim, 107 F.3d 913, 917-18 (D.C. Cir. 1997)

(rejecting the view that Rule 15(c)(3) applies where "the

mistake is one of legal judgment").

III. CONCLUSION

We need go no further. We construe Rule 15(c)(3) in

accordance with its plain meaning. Because Leonard fulfilled

all the rule's requirements, his amendment related back to the

6
It would place this case on an even keel with Wilson had
Leonard brought a products liability suit against the
manufacturer of the Jeep and, after the expiration of the
statute of limitations, tried to abandon that quest and amend
his complaint to assert a claim against a new defendant (Parry)
for negligent operation of the vehicle.

-15-
date of his original pleading, and his action was timely.

Consequently, the lower court erred in dismissing the amended

complaint.

Reversed and remanded for further proceedings

consistent with this opinion.

-16-