Agape Flights, Inc. v. Covington Aircraft Engines, Inc. et al
OPINION AND ORDER by Judge Frank H. Seay granting 214 Motion to Dismiss Agape's negligence claim only against Kansas Aviation (trl, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
AGAPE FLIGHTS, INC.,
) No. CIV-09-492-FHS
COVINGTON AIRCRAFT ENGINES,
KANSAS AVIATION OF INDEPENDENCE,
LLC. and JOHN DOE DEFENDANTS
OPINION AND ORDER
Defendant, Kansas Aviation of Independence, LLC (“Kansas
Aviation”) has filed a Motion to Dismiss (Dkt. No. 214) the
negligence claim asserted against it by Plaintiff, Agape Flights,
Kansas Aviation contends Agape’s negligence claim
is barred by the applicable statute of limitations.
reasons stated below, the Court agrees and finds Agape’s negligence
claim should be dismissed as it is barred by application of
Oklahoma’s two-year limitation period, 12 O.S. § 95(A)(3).
Agape instituted this action on December 21, 2009, by filing
its Original Complaint to recover damages resulting from a December
20, 2007, crash of its plane in the ocean waters near the Bahamas.
The Defendants named in the Original Complaint were Covington
(“Sundstrand”), and John Doe Defendants 1-25.
Kansas Aviation was
not named as a defendant in the Original Complaint.
On April 16,
2010, Agape filed an Amended Complaint which added Kansas Aviation
as a defendant and asserted claims for negligence and breach of
warranties against Kansas Aviation.1
The parties agree that Oklahoma law provides for a two-year
limitation period for negligence actions.
12 O.S. § 95(A)(3);
Marshall v. Fenton, Fenton, Smith, Reneau and Moon, 899 P.2d 621,
623 (Okla. 1995).
It is conceded that the negligence claims
asserted in the Original Complaint filed on December 21, 2009, were
therefore timely as they were filed within two years of the
December 20, 2007, plane crash.
Kansas Aviation, however, was not
named in the Original Complaint.
Agape’s negligence claim was
first asserted against Kansas Aviation on April 16, 2010, through
the filing of the Amended Complaint.
As a result, Kansas Aviation
argues that Oklahoma’s two-year limitation period bars Agape’s
negligence claim against it because the Amended Complaint was filed
over two years and three months from the December 20, 2007, plane
In response, Agape contends dismissal of the negligence
claim against Kansas Aviation should be rejected because such claim
relates back to the filing of the Original Complaint pursuant to
Rule 15 of the Federal Rules of Civil Procedure and it is,
therefore, timely filed.
Rule 15(c)(1) provides:
An amendment to a pleading relates back to the date of the
original pleading when:
(A) the law that provides the applicable statute of
limitations allows relation back;
(B) the amendment asserts a claim or defense that arose
Covington, P&W, and Sundstrand were again named as
defendants in the Amended Complaint. The “John Doe Defendants 125" in the Original Complaint were replaced by “John Doe
Defendants 2-25" in the Amended Complaint.
out of the conduct, 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 Rule
15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not
be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party’s identity.
Complaint, the provisions of subsection (c)(1)(C) apply.
to satisfy subsection (c)(1)(C) and have the Amended Complaint
relate back to the date of Original Complaint, Agape must establish
the following: “(1) the claim arose out of the conduct, transaction
or occurrence set forth in the original pleadings; (2) the party to
be joined received such notice that it will not be prejudiced in
maintaining a defense; (3) the party to be joined knew or should
have known that but for a mistake of identity the action would have
been brought against it; and (4) the second and third requirements
have been fulfilled within the prescribed period for service of
process - 120 days after the filing of the original complaint under
Spicer v. New Image Intern, Inc., 447 F.Supp.2d 1226,
1233 (D. Kan. 2006). In seeking dismissal, Kansas Aviation focuses
requirement (3) because Agape’s failure to name it as a defendant
in the original complaint does not constitute a “mistake” in
The Court agrees.
Agape’s failure to include Kansas Aviation, a potentially
liable defendant, in its Original Complaint is not a “mistake”
triggering the application of subsection (c)(1)(C)(ii).
stated by the Tenth Circuit, “a plaintiff’s lack of knowledge of
the intended defendant’s identity is not a ‘mistake concerning the
15(c)(1)(C)(ii)].” Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir.
Nor is the designation of the “John Doe” defendants in the
Original Complaint the equivalent of a formal defect covered by
In Garrett, the Tenth Circuit addressed
these issues and concluded:
We agree with this interpretation of Rule 15(c)(3)(B),
which is in line with prevailing law in seven of the
eight circuits to have considered this issue. As the
Eleventh Circuit observed, the Advisory Committee Notes
to Rule 15(c)(3) indicate that “the mistake proviso [was
included] . . . in order to resolve ‘the problem of a
misnamed defendant’ and allow a party ‘to correct a
formal defect such as a misnomer or misidentification.’”
Thus, “‘the rule is meant to allow an amendment changing
the name of a [defendant] to relate back to the original
complaint only if the change is the result of’” such a
formal defect. A plaintiff’s designation of an unknown
defendant as “John Doe” in the original complaint is not
a formal defect of the type Rule 15(c)(3) was meant to
Id. at 696-97 (internal citations omitted).2
Agape offers no explanation for its failure to include Kansas
Aviation as a defendant in the Original Complaint.
relies on (1) the fact that Kansas Aviation had notice of the plane
The Garrett opinion references Rule 15(c)(3) which is
virtually identical to current Rule 15(c)(1)(C). Rule 15 was
amended in 2007 with the amendments intended to be stylistic
crash because it provided information to Covington for the prelitigation investigation of the plane crash and (2) the fact that
the inspections of the subject engine and fuel pump did not occur
until 2011 and were participated in by Kansas Aviation and its
Neither of these facts, however, address the “mistake”
component of subsection (c)(1)(C)(ii).
Absent an explanation, the
Court concludes Agape either lacked knowledge of Kansas Aviation’s
involvement in the overhaul of the fuel pump blamed for causing the
plane crash or, despite such knowledge, failed to include Kansas
Aviation as a defendant for tactical reasons.
constitutes a mistake concerning the identity of the proper party
in order to invoke the provisions of the relation back doctrine.3
Consequently, the Court concludes that the addition of Kansas
Aviation in the Amended Complaint does not relate back to the
negligence claim, asserted against Kansas Aviation more than two
years after the December 20, 2007, plane crash is therefore barred
by Oklahoma’s two-year statute of limitations.4
Based on the foregoing reasons, Kansas Aviation’s Motion to
Dismiss (Dkt. No. 214) is granted.
Agape’s negligence claim
against Kansas Aviation is dismissed with prejudice.
To the extent Agape’s response could be interpreted to
suggest that there is an identity of interest between Kansas
Aviation and Covington, the Court rejects such argument. The
record does not support an identity of interest argument, as
between Kansas Aviation and Covington, sufficient to implicate
the “mistake” proviso.
Kansas Aviation’s request for dismissal is limited to
Agape’s negligence claim. Agape’s breach of warranty claim
against Kansas Aviation remains pending. See Daughtery v.
Farmers Co-op Ass’n, 689 P.2d 947, 951 (Okla. 1984)(five-year
limitation period for breach of warranty claims under Oklahoma
It is so ordered this 27th day of September, 2011.