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Civil Procedure: Rule 15(c)(2) Amend Complaint to Relate Back & Avoid Statute of Limitations

Posted by Ted A. Schmidt | Dec 21, 2017 | 0 Comments

Richardson v. All Services ULTD, Inc., __Az Adv. Rep. __No. 1 CA-CV 15-0642 (App. Div. I, December 14, 2017) (J. Howe)


PLAINTIFF'S MISTAKEN BELIEF AS TO PROPER PARTY RESPONSIBLE FOR INJURY CONSTITUTES "MISTAKE AS TO IDENTITY OF PROPER PARTY" UNDER ARIZ R CIV PRO 15(c)(2)/ AMENDING COMPLAINT ADDING PROPER PARTY RELATES BACK FOR PURPOSES OF STATUTE OF LIMITATIONS http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2017/1%20CA-CV%2015-0642.pdf

Plaintiff, an ironworker, was injured on a construction job on January 25, 2012 at Bellemont Truck Repair and Towing, Inc. He sued Bellemont on January 10, 2014 alleging Bellemont negligently maintained the construction site where he was injured.  In March 2014 plaintiff learned that Bellemont had hired All Services as the general contractor for the project. Plaintiff amended the complaint adding All Services. All Services was granted summary judgment by the trial court which found the two year statute of limitations had run, ARS sec. 12-542, and no relation back would be allowed based upon Tyman v. Hitnz Concrete, Inc., 214 Ariz. 73 (2006).  The Arizona Court of Appeals reversed and remanded holding the plaintiff's failure to originally name All Services as a defendant was a mistake regarding the identity of the correct defendant and as such the amended complaint adding All Services relates back to the original filing.

An  amended  complaint  relates  back  under Rule15(c) if:
(1)the  claim  arose  out  of  the same conduct,  transaction,
or  occurrence as the claim in the original complaint; (2) the
added defendant received notice of the action within the
applicable limitations period plus the period provided by
Rule 4(i) for the service of the summons and complaint; (3) the
notice is sufficient to avoid prejudicing the joined defendant's
ability to defend on the merits; and (4) within that same
period, the party to be added by amendment knew or should
have  known that, but for a mistake concerning the identity
of the proper party, plaintiff would have named the proper
party  in  the  original  complaint.

Here it is agreed the first three requirements are met. While this appeal was pending the Arizona Supreme Court overruled Tyman in Flynn  v. Campbell, 243 Ariz. 76 (2017).  Under Flynn the fourth requirement is met when the defendant knew or should have known that "absent some mistake," the plaintiff would have brought suit against him-any mistake-factual or legal-is sufficient under Rule 15(c). "To decide whether a Rule 15(c) 'mistake' has occurred, the court must determine 'whether, in a counterfactual error-free world, the action would have been brought against the proper party.'" Here the plaintiff offered evidence that he mistakenly believed Bellemont was the project supervisor based upon his observations of Bellemont's owner clearing the property.  Rule 15(c) allows for the adding of an additional defendant and not just the substitution of one defendant for another.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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