Party Dismissed in One Claim Add Again Amended Complaint

What You Need to Know Nigh Relation Dorsum of Amendments

December 15, 2015

When we say that an amendment to a pleading "relates back" to the filing of the original pleading, nosotros are simply proverb that we are going to pretend that the new allegations appeared in the original document, even though they didn't. The reason for this concept, and indeed the just reason that anyone would care whether an amendment relates back, is the statute of limitations. If a party, almost always a plaintiff, seeks to amend his or her pleading earlier the statute of limitations runs, he or she doesn't need anything to relate back. It is only when the original pleading was filed before the statute ran, and later, afterward the statute has run, the political party wishes that the original complaint had included other or dissimilar allegations that the concept of relation back saves the mean solar day. Of course, there may be other times when a litigant will wish that he or she had said something sooner, such as when a defendant wishes to meliorate an respond to include a defense. Defenses don't have statutes of limitation, nevertheless, then the issue becomes one of the timing of an amendment and prejudice to the opposing party. Relation back doesn't come into play.

There are two basic categories of allegations that a party might want to add together to his or her pleading: (one) new claims or factual allegations against an existing defendant, or (two) claims against a dissimilar or additional defendant. Both can relate dorsum, simply the rules are different, and they also vary between federal courtroom and the Virginia state courts.

Federal Court

Amendments in federal cases are governed by Dominion 15 of the Federal Rules of Civil Procedure, which provides in pertinent part equally follows:

Rule fifteen. Amended and Supplemental Pleadings

(a)        Amendments Before Trial.

(1) Alteration every bit a Matter of Course. A political party may better its pleading once equally a thing of course within:

(A)       21 days later serving it, or

(B)       if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (east), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a political party may amend its pleading simply with the opposing political party'south written consent or the court'due south exit. The court should freely give exit when justice so requires.

(three) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be fabricated within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is subsequently.

. . .

(c)        Relation Dorsum of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A)       the police that provides the applicable statute of limitations allows relation dorsum;

(B)       the amendment asserts a claim or defence that arose out of the acquit, transaction, or occurrence set out–or attempted to be set out–in the original pleading; or

(C)       the amendment changes the party or the naming of the party against whom a claim is asserted, if Dominion 15(c)(1)(B) is satisfied and if, inside the catamenia provided by Rule 4(m) for serving the summons and complaint, the political party to exist brought in by amendment:

(i)         received such notice of the action that information technology will not be prejudiced in defending on the merits; and

(ii)        knew or should have known that the activeness would have been brought confronting it, but for a fault concerning the proper political party's identity.

Amendments to add allegations of fact, claims, and theories of recovery are the least complex. Basically, if the new allegations or claims arise out of the aforementioned operative facts every bit did the claims in the original complaint, they chronicle back. If, for instance, an original complaint contains allegations of medical malpractice, and a plaintiff later wishes to sue for medical battery based on the same treatment, the new claims would relate back to the date of the filing of the sometime claims, even so the fact that the statute of limitations might have run in the interim. Similarly, a new claim of fraud would likely chronicle back to the date of an original claim for breach of contract, if the same actions on the part of the defendant gave rise to both. On the other manus, if the original complaint claims that the defendant breached a contract on August 1, 2015, allegations that the aforementioned accused breached a different contract, or breached the same contract on October i, 2015, probably would non relate back. If the statute for the 2nd merits had run as of the time of the amendment, the second claim would likely be barred.

The issue becomes more circuitous and the rules become much more technical when a plaintiff wants to add together a accused, or substitute a new defendant for the old i. Concepts such as due process dictate that the statute of limitations can't only be suspended indefinitely, and so the ability to add a defendant or switch defendants must have some limits, and those limits must be closely tied to the statute of limitations itself. The basic rule in federal court is ready out in Rule 15(c) above, and tin can exist summarized as follows: if the "new" defendant got detect of the lawsuit within the time established by the rules for serving a complaint, and knew or should have known that, merely for a mistake, he, she, or it should have been sued, and so a afterward amendment to either add the "new" defendant or substitute the "new" accused for the old one will relate dorsum, regardless of whether the statute of limitations has run. In other words, the statute of limitations is extended a bit, and can be tolled by notice, rather than by an actual merits. The actual claim can be made later on. The question of how much later is governed past the usual Rule 15 analysis, which looks at things like prejudice, delay, fairness, etc.

In that location are all sorts of issues hidden here. Showtime, the time for serving a complaint has recently been changed, from 120 days to 90 days, per Rule 4(m). 2d, the party seeking to improve has to show that the "new" defendant had observe, which could be difficult in some circumstances. The easiest way to bear witness notice is to simply have the potential accused served with the complaint, just unless the plaintiff is very diligent and knows beforehand that the accused he or she has sued might plough out to be the wrong 1, information technology seems unlikely that this volition happen very often. Farther, the notice must be of the lawsuit, not just the claim or the events that give rise to the lawsuit. For instance, notice that there was a car accident would be insufficient; the alteration political party would have to show that the "new" defendant had notice of the fact that there was a lawsuit about the car accident.

Another issue arises from the use of the word "mistake" in the dominion. It is fairly well‑settled that the requirement of a "mistake" means that relation back does not piece of work when a plaintiff consciously decides non to sue a known defendant for strategic reasons. It is less clear whether the requirement of a "mistake" ways that relation back tin can simply exist used to substitute the "correct" defendant for the "wrong" one, or whether the rule allows the add-on of another "right" accused, while keeping the original defendant in the instance. The case law seems to bespeak that the rule tin be used in either circumstance.

Finally, in that location seem to exist some mysteries as to when the 90-day menstruation starts to run. It is piece of cake enough to figure this out in a instance involving only ane original complaint that is timely served, and a plaintiff attempting to make his or her first amendment. But what if the original defendant is not served within the ninety-day catamenia, but the court allows an boosted period? The answer is that the "notice" period for the "new" defendant is also extended.

Similarly, what if the original complaint is filed on January 1 confronting Defendant A, a start amended complaint is filed on July 1 against Defendant B, and and so plaintiff later wishes to accept reward of relation back to add Defendant C? Does the time menstruum run from Jan 1 or July 1? Does it make a difference whether the mistake was made in January or July? Which complaint must Defendant C have had notice of? At least one treatise says that a new "notice" period starts to run with each amendment, meaning that each amendment carries with it an boosted 90-day window in which to give find to a potential new defendant. But, logically, this can't be correct. If it were, so a plaintiff could file an amended complaint naming a new defendant, and simply serve that accused within 90 days. It would and so be easy to show that the "new" defendant had actual knowledge of the lawsuit within the required time. This would mean that the statute of limitations could theoretically be extended forever. It does non appear that any court has ever addressed this question, nor have the commentators to the rules.

Finally, what if a complaint is filed, voluntarily dismissed, and and so re-filed? Does the notice period run from the original filing, or the new filing? One would guess that it runs from the new filing, but, once again, it does not appear that any court has addressed this question.

In an effort to avoid the opportunity to lose these or similar bug before the United States Supreme Court, litigants should follow what we all know are the all-time practices: investigate claims thoroughly, file accommodate well in advance of the statute of limitations, and if any result arises as to the correct identity of the defendant, make sure that all potential defendants are sued, or at least given actual notice of the lawsuit before the time period runs. Of class, this is easier said than done.

Virginia State Court

The basic rule on amendments in Virginia is:

Rule 1:8. Amendments: No amendments shall exist made to any pleading afterward it is filed save by leave of courtroom.

The rule on relation back of allegations confronting an existing accused is roughly the same as in federal courtroom. The rule itself is as follows:

Va. Code § viii.01-6.1. Amendment of pleading irresolute or adding a claim or defense; relation back
Discipline to whatever other applicative provisions of police force, an amendment of a pleading irresolute or adding a claim or defence against a political party relates back to the date of the original pleadings for purposes of the statute of limitations if the court finds (i) the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set along in the original pleading, (ii) the alteration party was reasonably diligent in asserting the amended claim or defenses, and (iii) parties opposing the amendment will not be essentially prejudiced in litigating on the merits as a consequence of the timing of the amendment. In connection with such an amendment, the trial court may grant a constancy or other relief to protect the parties. This section shall not utilize to eminent domain or mechanics' lien claims or defenses.

The latest guidance on this full general concept from the Supreme Court of Virginia came in McKinney five. Va. Surgical Assoc., P.C., 284 Va. 455, 732 S.E.2d 27 (2012). The issue in McKinney was whether claims made a complaint filed afterwards a nonsuit were the same every bit the claims fabricated in the original suit, so every bit to take reward of the half dozen-month savings menstruum. The court held that all claims arising from the same "cause of activeness" are functionally the aforementioned for purposes of the nonsuit rules. Information technology stated that a "cause of activeness" is the facts and circumstances which give rise to the various "rights of action." Thus, a survival activeness for medical malpractice and a wrongful decease claim, while split "rights of activeness," arose from the aforementioned facts, and thus were the same "crusade of action." In that location appears to exist no reason why the court would not apply the aforementioned test with regard to relation back amendments.

When it comes to adding or substituting defendants, Virginia has two statutes. The first, Va. Code § 8.01-6, tracks the federal dominion except in a few regards. The virtually of import is that the "new" defendant had to have notice of the merits before the statute of limitations ran, as opposed to within the statute plus the time to serve the complaint. In theory, this could be about 89 days shorter than would be immune in federal court. The statute reads as follows:

Va. Lawmaking § 8.01-6. Amending pleading; relation back to original pleading

A misnomer in any pleading may, on the motility of any party, and on affidavit of the right name, be amended by inserting the right name. An amendment irresolute the party against whom a merits is asserted, whether to right a misnomer or otherwise, relates dorsum to the date of the original pleading if (i) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading, (two) within the limitations period prescribed for commencing the action against the party to be brought in by the subpoena, that party or its agent received notice of the institution of the activeness, (3) that political party will not exist prejudiced in maintaining a defence on the merits, and (iv) that party knew or should take known that but for a mistake concerning the identity of the proper political party, the action would have been brought against that party.

The 2d Virginia statute on point is Va. Code § 8.01-6.two, which provides equally follows:

Va. Code § 8.01-6.ii. Amendment of pleading; relation back to original pleading; defoliation in merchandise name

(A) A pleading which states a claim against a party whose merchandise name or corporate name is essentially similar to the trade proper name or corporate proper noun of another entity may exist amended at any time past inserting the right party'south name, if such party or its agent had actual find of the claim prior to the expiration of the statute of limitations for filing the merits.

(B) In the event that adjust is filed against the estate of a decedent, and filed within the applicative statute of limitations, naming the proper noun of manor of the deceased and service is effected or attempted on an individual or individuals as executor, ambassador or other officers of the estate, such filing tolls the statute of limitations for said claim in the event the executor, administrator or other officers of the estate are unable to legally receive service at the fourth dimension service was attempted, or defend suit because their dominance as executor, administrator or other officer of the estate excludes defending said actions, or their duties equally executor, administrator or other officer of the estate had expired at the fourth dimension of service or during the time of defending said action.

The concept here is the same, except that there is no examination of prejudice to the defendant. There appears to be a merchandise-off hither, in that a defendant with a confusing trade proper name is not entitled to quite as much protection.

There are very few Virginia state cases interpreting whatever of these statutes. It is likely that the Virginia land courts would look to the federal courts for guidance. Given that at that place are still uncharted waters in the federal system, however, litigants are well advised to be careful and diligent.

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These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They practise not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may accept.

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