I.

Relation Back

A. 15(c)(1)—Relation Back

1. Applies when the SOL has passed and the party wants to amend

2. The Movant is going to raise relation back as response to the non-movant’s FUTILE

argument

3. EXAMPLE:

a) The movant files a motion for leave to amend once the SOL has run out

b) The non movant, in opposition, argues that the court should deny leave to amend

because the amendment is untimely and therefore, futile

c) The movant then responds by saying, NO, the amendment is not futile because it

RELATES BACK

B. Relation Back = Treat the new claim as if it had been in the original claim

1. Doctrine of relation back is a principle that something done today will betreated as if it were

done earlier. This doctrine is applied under certain circumstances.

2. It means that the amended complaint with the new claim will be treated as though it had

been filed when the original complaint was filed

3. Example: original pleading is filed, SOL run outs, and at some point you want to amend.

Adding this claim is untimely.

4. What relation back does is that it allows one to treat the new claim or the claim against the

new party in the amended pleading as if it had been included in the original timely pleading

C. The Movant raises relation back

1. Relation Back is only in play when:

a) Proposed Amendment is untimely

b) The statute of limitations has expired

 (1) If the amendment is not being brought after SOL has expired, we do not need to talk

about relation back

c) The original complaint MUST have been TIMELY (filed before the SOL ran out)

(1) If the claim would have been included in the original pleading, IT WOULD HAVE

BEEN TIMELY

(a) We have to look at the specific claim

(b) If the original complaint had been filed after the SOL and we relate it back to the

original, it does not help because it would still be untimely.

D. 15c1B, for new claims against existing party.

1. Must have arisen from same T/O as that of the original claim

2. Defendants know to expect these claims because they’re already being sued on other claims

that arose from the same T/O.

3. Claim preclusion under 18a also tells the defendant that the plaintiff has to bring all their

claims that arise from the same T/O or else risk losing them, so they’re on notice.

E. 15c1C, for the changing or naming of a party aka substituting or adding a defendant or changing

what you call the defendant

1. When they want to add a defendant (Krupski)

2. When they want to change the name of the party (Smith)

a) It is the same person, but you are changing their name

3. Replace a party with the correct party (Zellinski)

a) Basically adding a new party

b) EXAMPLE: Zellinski changing from PPI to CCI

4. FIVE ELEMENTS TO SATISFY 15(c)(1)©

a) Rule 15(c)(1)(B) must be satisfied in 15(c)(1)(C):

(1) MUST arise out of the same conduct, transaction, or occurrence

 (2) Logical relationship

b) Within the 4(m) time limit

(1) 60 days of filing

(2) Basically states that had the D been brought in via the original complaint, he would

have been served and received notice in the 4(m) time—60 days

(3) Within the 60 day period, the new D should have received notice of the action

(4) Had the D been named in the original pleading, he would have had notice within the

period

(5) This is the period he would have known about the action he had been named in the

original complaint

(6) This does not need to be served within the SOL, only FILED. The question is

whether he knew within 60 days, not within the SOL period.

(7) This element is linked to the next element: the 4(m) period is linked to the notice.

(8) To comply with the SOL, you only have to FILE the pleading within the SOL.

Therefore, the service can take place after the SOL.

(a) EXAMPLE: The SOL is 2 years—730 days

(b) The P’s filed the complaint on the 730th day

(c) So the complaint was within the SOL

(d) The P now has 60 days after filing the complaint to serve it

(e) Therefore, the service /notice will be given after the SOL.

(9) 15(c)(1)(C)(i)

(a) This rule us saying that WITHIN the 60 day period provided in 4(m), the new

D should have received notice of the action

 (b) The idea is that if you would have properly been named in the original

complaint, then you would have received notice of the action within 60 days

under 4(m).

(c) This is why the new D has to have received notice within the 60 day time frame.

c) Party to be added must receive notice of action, and knew or should have known, such

that they will not be prejudiced

(1) 15(c)(1)(C)(i)

(a) You know about the lawsuit, you know could be a target of the lawsuit and you

know that you should be or would have been a target of the lawsuit, but for some

reason.

(b) Disadvantage is a different disadvantage than if the claim would have been filed

originally against the party

(c) Party thought he had the right to rest easy but he DOES NOT

(d) That is why the notice is linked to the 4(m) period.

(e) You’re giving the to-be-added D the same time frame as the original D and if you

DO NOT, then they will be prejudiced and this element WILL NOT be satisfied

(f ) But if you FILED within 60 days, then the party does not get such notice of the

action, so they know the claim might be coming and that they should not rest

easy. Thus, they are NOT prejudiced in trying to defend.

(g) NOTICE: can be formal or informal

i) Formal:

(1) Being served under 5(m)—60 days after the complaint is filed

(2) Receiving the amended complaint

(3) Receiving the motion for leave to amend with the proposed amendment

(4) Service of amended complaint if it occurs within 60 days

 (5) Sometimes you are so clear in the complaint that it should put the person

on notice if they see the original complaint, and within the 4(m) period

(60 days)

(6) EXAMPLE: the complaint made clear that Krupski meant to sue the

company that “owned, operated, managed, supervised and controlled”

the ship and also indicated that Costa Cruises performed those roles,

Costa Crociere should have known within the 4(m) that it was not

named D only because of Krupski’s misunderstanding—this was a

mistake

ii) INFORMAL:

(1) Constructive notice/imputed knowledge

(2) Informal notice is okay as long as it is enough to tell the new D that he

could have been a party of the original complaint if there had not been a

complaint

(3) EXAMPLES:

(a) If parties have the same counsel

(b) If a company is sued, the owner should have known

(c) The company and the owner are one

(d) If the matter is on the news/radio/TV

(e) Coworker or bosses tell you

(f ) Husband and wife

d) Knew or should have known that the action would have been brought

(1) 15(c)(1)(C)(ii)

(a) Knew or should have known that the action would have been brought against it

(b) The D being added knew:

 i) The suit was filed

ii) What the suit was about

iii) That he was the intended D and that the suit would have been brought

against him, if it weren’t for a mistake

e) But for MISTAKE concerning the proper party’s identity 15(c)(1)(C)(ii):

(1) A second part of the rule states:

(a) “but for a mistake concerning the proper party’s identity”

(2) Krupski

(a) An error, misconception, or misunderstanding

(b) An erroneous belief

(c) A state of mind not in accordance with the facts

(d) A wrong action or statement proceeding from faulty judgment, inadequate

knowledge, or inattention

(3) What may cause a party to make a mistake?

(a) Calling the right party by the wrong name

(b) When you mean to sue 1 person but mistakenly sue another

i) Knowing about 2 parties but misunderstanding their roles in the event

(c) Mistake of the proper party’s identity

(d) Lack of knowledge is not an example (Smith)

(e) EXAMPLE: A P may know generally what party A does while misunderstanding

the roles that party A and B played in the event giving rise to her claim. If P sues

party B instead of A under these circumstances, she has made a “mistake

concerning the proper party’s identity” notwithstanding her knowledge of both

parties.
 (f ) EXAMPLE: Mistake in Krupski: After being aware that two parties were present,

P chose one D and it was the wrong D. it was a mistake because it was not the

party that Krupski wanted to sue. Krupski wanted to sue whoever was

controlling the cruise.

(g) EXAMPLE: Zellinski sues CC instead of PPI

(h) EXAMPLE: Smith sues John Doe instead of two specific police officers.

However, this case is different. Smith, unlike Krupski, did not make a mistake

about the identity of the parties he intended to sue, he simply did not know who

they were and did not find out within the SOL.

(i) HYPO: P knows A exists, knows A is out in the world, BUT believes A has the

legal or factual status of B. So therefore, sues B instead of A.

(j) HYPO: Woman gets pushed down the stairs and sees A and B. She doesn’t know

who pushed her and decided to sue B later to find out it was A. This is a mistake

concerning the proper party’s identity. The important thing is SHE KNEW A

existed.

(4) Krupski:

(a) The rule asks what the D knew or should have known during the 4(m) period

(b) The only question under 15(c)(1)(C)(ii) is whether party A knew or should

have known that, absent some mistake, the action would have been brought

against him

(c) The court disagrees with the respondent’s position that any time the P is aware of

the existence of 2 parties and chooses to sue the wrong one, the proper D could

reasonably believe that the P made no mistake

(d) A P may know that a prospective D exists but nonetheless harbor a

misunderstanding about his status or role in the events giving rise to the claim at
 issue, and she may mistakenly choose to sue a different D based on that

impression.

II. Statute of Limitations

A. Why do we have the SOL?

1. So the defendant can rest easy, we want the defendant to move on with his life, the SOL thus

gives him a right to repose after the SOL runs out.

a) He does not have to prepare a defense

b) Does not have to preserve evidence

c) He does not have to worry about repercussions to his business

d) Does not need to put money away to hire lawyers

2. For accuracy reasons; we get better results when the case is fresher.

a) Witnesses/parties forget details or disappear (die)

b) Documents get lost or destroyed

3. The SOL puts an obligation on the plaintiff to exercise their rights, to not sleep on their

rights.

B. So why do we have relation back?

1. SOL should not be a windfall to the D but we also don’t want to the P infringing on their

rights. If the P does that it will be unfair for the D.

2. We are trying to strike a balance between the P and the D.

3. How does notice serve the purposes of the SOL? How does giving the D notice serve the

underlying policies of the SOL?

4. The key to the SOL and relation back is the concept of notice

a) If someone is on Notice, it stops them from resting easy and tells them that they should

prepare for a lawsuit

b) Gives them an opportunity to prepare and make a defense

 c) Gives the D notice that he should not rest easy

d) D should make sure he does not lose or destroy evidence

e) Notice is how we satisfy the considerations in respect to relation back

III. KRUPSKI EXAMPLE:

A. Krupski: Costa Cociere tried to argue that relation back was improper because Krupski waited too

long to actually move for leave to amend. Krupski found out about Costa Cociere- months before

she actually moved for leave to amend.

1. How does the court say that this affects the relation back analysis?

a) Undue delay has nothing to do with the relation back analysis

2. The court said that the rule mandates relation back once the rule’s requirements are satisfied;

it does not leave the decision of whether to grant relation back to the district court’s discretion

3. They do not have the discretion as to whether or not it relates back; if the elements are

required, it is mandatory

4. Krupski continued: the elements of 15(c)(1)(C) are mandatory. Delay does not matter for

purposes of relation back. That if it satisfies the elements of 15(c)(1)(C), then it relates back

and therefore the claim against the new party is not futile. But does that mean that leave to

amend is going to be granted?

a) No

5. They could still deny leave to amend under:

a) Undue delay

b) Bad faith

c) Dilatory motive

d) Repeated failure to cure

e) Undue prejudice
B. The court can say, “yes, your claim relates back, but because there was undue delay or bad faith or

undue prejudice, we are going to deny the leave to amend.”

C. Even if elements of 15(c)(1)(c) are satisfied, Court still may deny leave to amend because justice

doesn’t so require (if any of five above are present),

D. Relation back helps to overcome futility of amendment because the statute of limitations ran

under Foman. 15(c)(1)(c) only gets you around the statute of limitations barring amendment

E. 15(a)(2) tells you if you will be allowed to amend if justice so requires