Pruitt v. Invacare Corporation et al
Filing
88
Memorandum Opinion and Order denying 64 MOTION for Leave to File Second Amended Complaint and Motion to Remand. Signed by District Judge Tom S. Lee on 10/28/14 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
CHARLEEN PRUITT, INDIVIDUALLY AND
ON BEHALF OF THE WRONGFUL DEATH HEIRS
OF MARTHA RUTH NIXON, DECEASED
VS.
PLAINTIFF
CIVIL ACTION NO. 2:13CV293-TSL-JCG
INVACARE CORPORATION,
ABC and DEF DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of plaintiff
Charleen Pruitt to amend her complaint to substitute or add as
defendants GF Health Products, Inc. (Graham-Field) and Available
Medical Supplies, Inc. (Available Medical).
Further, since
Available Medical’s Mississippi citizenship is not diverse from
plaintiff’s citizenship, plaintiff moves that following amendment
of her complaint, the court enter an order remanding this case to
the Circuit Court of Smith County, from which it was removed.
Defendant Invacare Corporation has responded to the motion
advising that while it has no opposition to the request to
substitute or add Graham-Field as a defendant, it opposes the
request to amend as it relates to Available Medical and hence also
opposes the motion to remand.
The court, having considered the
memoranda of authorities, together with attachments, submitted by
the parties, concludes that the motion to amend to add Available
Medical is not well taken and should be denied.
the motion to remand will be denied.
It follows that
Further, as to Graham-Field,
the court concludes that notwithstanding Invacare’s lack of
objection, the motion to amend to substitute or add Graham-Field
as a defendant should be denied.
Facts and Procedural History
On October 30, 2009, plaintiff Charleen Pruitt’s 82-year old
mother, Martha Ruth Nixon, died of asphyxiation when she became
trapped between the bed rail and bed on her hospital bed.
On
October 26, 2012, four days prior to expiration of the three-year
statute of limitations,1 Pruitt filed the present wrongful death
action in the Circuit Court of Smith County asserting claims based
on products liability against Invacare and two fictitious
defendants (ABC and DEF) that she alleged were involved in the
design, manufacture, sale and distribution of the hospital bed.
More particularly, plaintiff alleged that the bed, bed rails,
mattress and component parts of the subject bed were defective
because the design of the bed rail and the fit of the bed rail to
the bed created the risk of lethal entrapment and the use of an
air mattress in conjunction with the bed rails increased the risk.
Based on these allegations, plaintiff charged that Invacare, ABC
and DEF are liable under the Mississippi Product Liability Act
1
See Miss. Code Ann. § 15-1-49(1) (establishing threeyear statute of limitations).
2
(MPLA), Miss. Code Ann. § 11-1-63 et seq., for strict liability,
negligence, and breach of warranty for design, manufacture,
inadequate warnings and res ipsa loquitur.
On February 1, 2013,
plaintiff served process on Invacare, following which Invacare
timely removed the case to this court on the basis of diversity
jurisdiction under 28 U.S.C. § 1332.2
Following removal, a case management order was entered May
21, 2013 establishing a December 2, 2013 discovery deadline.
However, on October 29, 2013, Invacare filed on behalf of the
parties a joint motion to extend the discovery deadline.
In that
motion, Invacare stated that it had inspected the subject bed and
bed rails and determined that while the bed was manufactured by
Invacare, the bed rails were not.
Invacare further explained that
while it had subpoenaed the files of Available Medical, the dealer
who supplied the hospital bed and bed rails to plaintiff,
Available Medical had advised that despite an exhaustive search,
it could not locate any of the relevant records.
While plaintiff
advised that she did not concede that Invacare did not manufacture
the bed rails, the parties asserted in their motion to extend the
discovery deadline that as a result of Available Medical’s loss of
its records relating to the products at issue, the parties had
been prevented from identifying the manufacturer of the bed rails.
2
Pruitt is a citizen of Mississippi and Invacare is an
Ohio corporation with its principal place of business in Ohio.
3
They reported that they “need[ed] additional time to pursue
further efforts to locate the missing evidence that the dealer
[has] been unable to locate” and needed “additional time and
discovery to ascertain the manufacturer of the relevant bed rails
in order that the Plaintiff can consider adding the bed rail
manufacturer as a defendant in this case.”
The discovery deadline
was extended to June 2, 2014.
On March 2, 2014, Invacare noticed the deposition of Larry
Jenkins, owner of Available Medical.
In his deposition, taken
March 25, 2014, Jenkins identified the bed and mattress that his
company supplied to Ms. Nixon as having been manufactured by
Invacare, but he could not identify the manufacturer of the bed
rails, which had no markings on them.
However, Jenkins testified
that his company only handled bed rails manufactured by two
companies, Invacare and Graham-Field.
And although he stated that
it was his company’s usual practice to use Invacare rails with
Invacare beds, he acknowledged that it “could have happened that”
it “mixed and matched” a bed and rails, using one company’s bed
and another company’s rails.
Plaintiff’s Motion to Amend
On September 17, 2014, plaintiff filed the present motion
pursuant to Federal Rule of Civil Procedure 15(a)(2) to amend “to
specifically identify two previously-named fictitious defendants
whose identity was unknown when this suit was filed.”
4
In her
motion, plaintiff asserts that at the time she filed suit, she was
unaware that Graham-Field or Available Medical was a proper
defendant.
She states that she believed Available Medical was an
“innocent seller” within the meaning of the Mississippi Products
Liability Act’s innocent seller exemption set forth in Mississippi
Code Annotated § 11-1-63(h), and that she was thus prohibited from
naming Available Medical as a defendant.3
She contends that she
only became aware of Available Medical’s identity as a proper
defendant upon learning in Jenkins’s deposition that Available
Medical may have substantially altered or modified the Invacare
bed by “mixing and matching” an Invacare bed with another
manufacturer’s rails and thereby forfeited its immunity as an
innocent seller.
She further maintains that under Mississippi
products liability law, if the bed rails causing/contributing to
Ms. Nixon’s death were manufactured by Graham-Field, then
3
By its terms, the intent of the innocent seller
exemption is “to immunize innocent sellers who are not actively
negligent, but instead are mere conduits of a product.” Miss.
Code Ann. § 11-1-63(h). The exemption provides that an innocent
seller “shall not be liable” for any action pursuant to
§ 11–1–63(a) – which includes all products liability theories of
recovery – unless the seller either: (1) “exercised substantial
control over that aspect of the design, testing, manufacture,
packaging or labeling of the product that caused the harm for
which recovery of damages is sought”; (2) “altered or modified the
product, and the alteration or modification was a substantial
factor in causing the harm for which recovery of damages is
sought”; or (3) “had actual or constructive knowledge of the
defective condition of the product at the time he supplied the
product.” Miss. Code Ann. § 11–1–63(h).
5
Graham-Field is unquestionably a proper defendant under the
theories of negligence and strict liability for defective design,
breach of warranty, and failure to warn.
She concludes that
“[j]ustice requires that [she] should be able to amend her
complaint to add/substitute these previously unknown defendants
and recover from all parties contributing to Ms. Nixon’s death.”
Fed. R. Civ. P. 15: Amendment and Relation Back
Federal Rule of Civil Procedure 15(a) provides that leave to
amend the pleadings “shall be freely given when justice so
requires.”
While the decision whether to grant a motion to amend
is committed to the court’s discretion, the Fifth Circuit has
cautioned that in keeping with Rule 15(a), such a motion should
not be denied “unless there is a substantial reason to do so”.
Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998) (quoting
Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir.
1994)).
One such reason for denying a motion to amend is that the
amendment would be futile, Jacobsen, 133 F.3d at 318; and one
reason an amendment may be futile is if the claim(s) sought to be
asserted would be time-barred, id.
In the case at bar, it is undisputed that the statute of
limitations on all of plaintiff’s claims expired on October 30,
2012.
Therefore, plaintiff’s proposed amendment, sought nearly
five years after her claims accrued and two years after the
statute of limitations expired, is futile unless, under Federal
6
Rule of Civil Procedure Rule 15(c) or its state counterpart,
Mississippi Rule of Civil Procedure 15(c), it relates back to the
date of the original filing.
See id.
Federal Rule of Civil Procedure 15(c)(1) provides that 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
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.
In her motion and supporting memorandum, plaintiff states
that she “moves to substitute Fictitious Defendant ‘ABC’ with
Available Medical Supplies ... and Ficitious Defendant ‘DEF’ with
... Graham-Field.”
(Emphasis added).
She reiterates in her brief
that she “is only seeking to identify two previously-named
fictitious defendants whose identity was unknown when this suit
was filed.”
The Fifth Circuit has held that Federal Rule
15(c)(1)(C) (formerly 15(c)(3)) does not allow relation back of an
7
amendment substituting a named party for a “John Doe” defendant,
reasoning that “for a ‘John Doe’ defendant, there was no ‘mistake’
in identifying the correct defendant; rather, the problem was not
being able to identify that defendant.”
320-21.
Jacobsen, 133 F.3d at
That does not necessarily foreclose plaintiff’s request
to amend, however, since Federal Rule 15(c)(1)(A) allows for
relation back when “the law that provides the applicable statute
of limitations allows relation back.”
Fed. R. Civ. P. 15(c)(1).
The advisory committee notes to the rule explain that “whatever
may be the controlling body of limitations law, if that law
affords a more forgiving principle of relation back than the one
provided in this rule, it should be available to save the claim.”
Fed. R. Civ. P. 15(c)(1)(a) advisory committee note.
Thus, if
Mississippi’s limitations law “affords a more forgiving principle
of relation back than” Rule 15(c), then such state law “should be
available to save the claim.”
Id.
In Anderson v. Alps Automotive, Inc., the Mississippi Supreme
Court discussed the interplay between Mississippi’s rules on
amending a civil complaint to substitute true defendants for
fictitious parties.
51 So. 3d 929, 932-33 (Miss. 2010).
Mississippi Rule of Civil Procedure 9(h), which governs the use of
fictitious parties, provides:
When a party is ignorant of the name of an opposing
party and so alleges in his pleading, the opposing party
may be designated by any name, and when his true name is
8
discovered the process and all pleadings and proceedings
in the action may be amended by substituting the true
name and giving proper notice to the opposing party.
And Mississippi Rule of Civil Procedure 15(c), the state’s
relation back provision, states:
Whenever the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the
original pleading, the amendment relates back to the
date of the original pleading. An amendment changing
the party against whom a claim is asserted relates back
if the foregoing provision is satisfied and, within the
period provided by Rule 4(h) for service of the summons
and complaint, the party to be brought in by amendment:
(1) has received such notice of the
institution of the action that he will not be
prejudiced in maintaining the defense on the
merits, and
(2) knew or should have known that, but for a
mistake concerning the identity of the proper
party, the action would have been brought
against him. An amendment pursuant to Rule
9(h) is not an amendment changing the party
against whom a claim is asserted and such
amendment relates back to the date of the
original pleading.
Under these rules, “a true substitution for a fictitious party
will relate back to the original filing date under Miss. R. Civ.
P. 15(c)(2).”
Essary v. Wal-Mart Stores, Inc., No. 199CV338SA,
2000 WL 33907699, at *2-3 (N.D. Miss. Sept. 19, 2000).
However,
the Mississippi Supreme Court has held that “‘[t]he relation back
privilege provided for fictitious parties under Rule 15(c)(2)
requires the plaintiff to actually exercise a reasonably diligent
inquiry into the identity of the fictitious party[,]’” Anderson,
51 So. 3d at 933 n.4 (internal quotation marks and citations
9
omitted), and further, that “[t]he plain language of Rule 9(h)
contemplates that the plaintiff must amend her complaint ‘in a
reasonably diligent manner’ once she learns the true identity of
the fictitious party, id. at 934 (citation omitted).
Substitution: Available Medical Supplies
Invacare opposes plaintiff’s motion as to Available Medical,
arguing that it is not a proper fictitious party since plaintiff
knew prior to filing suit that Available Medical sold the hospital
bed and component parts to Ms. Nixon and could have sued Available
Medical as a product seller under the MPLA when she originally
brought this action.
It notes that § 11-1-63(h) may have provided
immunity for Available Medical if it had not modified and misused
the Invacare bed but that § 11-1-63(h) did not prohibit plaintiff
from suing Available Medical.
Invacare further argues that
plaintiff failed to exercise the requisite diligence to determine
whether Available Medical was an innocent seller prior to filing
suit on October 26, 2012.
In the court’s opinion, there is no merit to plaintiff’s
suggestion that she was prohibited from suing Available Medical
until she uncovered definitive proof that it was not an “innocent
seller” within the contemplation of § 11-1-63(h).
Recently, in
Thomas v. FireRock Products, LLC, the court determined that “given
the opportunity, the Mississippi Supreme Court would hold that the
innocent seller provision is an affirmative defense under the
10
MPLA,” so that dismissal based on the innocent seller provision
would be appropriate only if it was apparent from the face of the
complaint that the seller was, in fact, an innocent seller.
No.
3:13–CV–00109–DMB–JMV, 2014 WL 4197580, at *7 (N.D. Miss. Aug. 22,
2014).
In this case, plaintiff was admittedly aware before filing
suit that Available Medical had sold, delivered and assembled the
bed at her home and hence was a “seller.”
Even if the innocent seller exemption were not an affirmative
defense, plaintiff has not demonstrated that she exercised
reasonable diligence to ascertain whether she had a cause of
action against Available Medical.
In Womble v. Singing River
Hospital, the Mississippi Supreme Court stated:
It is a principle of general application ... that
ignorance of the opposing party for fictitious party
practice extends beyond mere lack of knowledge of the
opposing party's name. Even if the plaintiff knows the
true name of the person, he is still ignorant of his
name if he lacks knowledge of the facts giving him a
cause of action against that person.
618 So. 2d 1252, 1267 (Miss. 1993) (emphasis added).
The court
has made clear, however, that this language “does not give
potential plaintiffs permission to sit on their rights.”
v. Jones, 816 So. 2d 367, 369 (Miss. 2001).
Rawson
The court observed in
Rawson:
We extrapolated on Womble in Doe v. Mississippi Blood
Servs., Inc., 704 So. 2d 1016 (Miss. 1997), and held the
relation back privilege afforded under Rule 9 requires a
plaintiff to actually exercise a reasonably diligent
inquiry into the identities of the fictitious party.
11
Id. at 1019. The purpose of Rule 9(h) is to provide a
mechanism to bring in known, but unidentified,
responsible parties who may only be ascertained through
the use of judicial mechanisms such as discovery. Id.
Rawson, 816 So. 2d at 369.
The Mississippi Supreme Court has
further counseled that the court must “make a strict inquiry as to
whether the plaintiff exercised reasonable diligence in
ascertaining the fictitious party's real identity.”
Gasparrini v.
Bredemeier, 802 So. 2d 1062, 1066 (Miss. Ct. App. 2001) (citing
Doe, 704 So. 2d at 1019).
Hence, even assuming plaintiff “was
truly ignorant of the facts giving [her] a cause of action against
[Available Medical],” id., she is not entitled to the benefit of
relation back unless she demonstrates that she exercised
reasonable diligence to ascertain whether Available Medical was a
proper defendant.
This, she has failed to do.
Plaintiff declares that she believed Available Medical was an
“innocent seller” at the time she filed suit; but she has not
indicated what led her to this professed belief.
Was this merely
an assumption on her part, or was it a reasonable conclusion based
on investigation?
Likely it is the former as plaintiff has not
suggested that she made any investigation to determine the nature
or extent of Available Medical’s involvement vis-a-vis the bed and
its component parts.
She obviously knew that Available Medical
did more than sell the bed:
bed.
It also delivered and assembled the
She knew that when it delivered the bed, Available Medical
12
did not provide any accompanying instructions, warnings or
literature.
These facts alone would have warranted further
investigation; and yet plaintiff has not shown that she made any
investigation prior to filing suit.
Cf. Essary, 2000 WL 33907699,
at *3 (denying relation back of amendment adding McDonald’s as
defendant, finding that plaintiffs “acted less than diligently in
identifying the appropriate parties for suit”, reasoning that
since the accident occurred in vicinity of McDonald's concession
inside Wal–Mart, plaintiffs, in three years of investigating the
matter, should have considered the possibility that McDonald's
might be at least partly responsible for the accident).
The record reflects that even after she filed suit, she did
nothing towards ascertaining whether Available Medical was truly
an “innocent seller.”
After the initial case management order was
entered May 21, 2013, plaintiff did not commence discovery.
Moreover, as disclosed by the parties’ first motion for extension
of case management deadlines, plaintiff knew by no later than
October 2013 that Invacare took the position that it did not
manufacture the bed rails that were on the bed that had been
delivered and assembled by Available Medical.
And yet not only
did plaintiff not move to add Available Medical as a defendant at
that time, she still did not commence discovery.
The court is
obviously aware that the parties claimed that Available Medical’s
inability to locate its records hampered their efforts to identify
13
the manufacturer of the bed rails.
But that lack of records would
not have hampered plaintiff’s ability to promptly depose Available
Medical to determine whether there was a basis for suit against
that defendant.
And yet this was not done.
Under the
circumstances, the court concludes that plaintiff failed to
exercise reasonable diligence to identify Available Medical as a
proper defendant.
Furthermore, even if plaintiff could be found to have been
reasonably diligent in identifying Available Medical as a
responsible party, she plainly did not move to amend her complaint
“in a reasonably diligent manner” after learning, based on Larry
Jenkins’s deposition testimony, that Available Medical was a
potentially liable party.
Jenkins was deposed on March 25, 2014.
Plaintiff waited nearly six months to file her motion to amend.
In the court’s opinion, such delay is at odds with the requirement
of reasonable diligence.
Indeed, the Mississippi Supreme Court
has held that the phrase “when his true name is discovered” in
Rule 9(h) “suggests that an immediate amendment of the complaint
is required properly and timely to substitute a true defendant for
the fictitiously named defendant.”
Anderson, 51 So. 3d at 932.
In the court’s opinion, plaintiff cannot be said to have acted
with the requisite diligence.
Cf. Anderson, 51 So. 3d at 934
(finding delay of more than nine months unreasonable); Ex parte
Hensel Phelps Constr. Co., 7 So. 3d 999, 1001–02 (Ala. 2008)
14
(delay of seven months unreasonable) (cited with approval in
Anderson).4
Accordingly, relation back is not available to her
under Mississippi Rule 9(h).
Substitution: Graham-Field
Plaintiff asserts that just as she first learned in Larry
Jenkins’s deposition that Available Medical was not an “innocent
seller”, she also first learned the identity of Graham-Field as a
potential manufacturer of the allegedly defective bed rails during
that March 25, 2014 deposition.
She states that until that time,
she had no reason to know of Available Medical’s potential act of
“mixing and matching” bed rails and beds.
Thus, according to
plaintiff, she had no reason to know that the bed rails were not
manufactured by Invacare, much less reason to know that GrahamField may have manufactured the allegedly defective bed rails.
4
Plaintiff cites Scoggins v. Boston Scientific Corp., No.
2:08CV032-P-A, 2008 WL 1821498, at *3 (N.D. Miss. Apr. 22, 2008),
as holding that a seven-month window between the filing of the
original complaint and the motion to amend to substitute the
proper fictitious party was not an unreasonable delay. That is
not an accurate characterization of Scoggins. In Scoggins, the
plaintiff originally filed suit against a Doe defendant that
allegedly manufactured an allegedly defective product that caused
him injury. Less than four months later, he moved to amend to
substitute Microinvasive as the named defendant. It is not clear
how soon he moved to amend after learning of Microinvasive’s
identity but it was no more than four months. Two months after
the motion to amend was filed, the court entered its order
granting the motion to amend; and the plaintiff filed his amended
complaint three weeks later. Then, within three weeks of filing
his amended complaint, the plaintiff learned that the true
manufacturer was not Microinvasive but Boston Scientific and filed
a second amended complaint adding Boston Scientific as the
defendant. There was no seven month delay in Scoggins.
15
She contends, therefore, that in the interest of justice, she
should be permitted to substitute Graham-Field for one of the
previously-identified fictitious defendants.
Invacare has advised
that it has no objection to the addition of Graham-Field (whose
joinder, unlike that of Available Medical, would not affect the
court’s jurisdiction).
However, in the court’s opinion, the
motion to amend to substitute Graham-Field should be denied,
notwithstanding the lack of objection by Invacare.
Plaintiff’s
lack of information regarding Graham-Field’s potential involvement
is a direct consequence of her apparent lack of diligence in
pursuing discovery as to Available Medical.
But even if she had
exercised reasonable diligence to identify all potentially liable
parties, she admits she knew in March 2014 of Graham-Field’s
potential involvement; and yet she delayed in seeking to amend for
nearly six months.
Thus, just as with Available Medical,
plaintiff may not rely on relation-back principles to support her
request to amend to substitute Graham-Field as a defendant.
Addition: Available Medical
Plaintiff argues in her reply brief that even if the court
determines that her proposed amendment to substitute Available
Medical does not qualify for relation-back under Mississippi Rule
9(h), her proposed amendment is still proper as it relates back
under Mississippi Rule 15(c) and/or Federal Rule 15(c)(1)(C) since
her claims arise out of the same conduct, transaction, or
16
occurrence, and since Available Medical had notice within the time
frame established by Rule 15(c) and knew or should have known that
it would have been sued but for plaintiff’s mistake as to its
identity/status.
To the extent that plaintiff now purports to
seek to add Available Medical as a defendant rather than
substitute it for a previously-unnamed fictitious defendant, the
motion is not well taken.
As the Fifth Circuit has held that the failure to name the
correct defendant due to a lack of knowledge of the proper party
is not a “mistake”, the relation back doctrine is unavailable to
plaintiff, regardless of whether she seeks to substitute or to add
Available Medical as a defendant.
See Jacobsen, 133 F.3d at 321
(“‘[F]ailing to identify individual defendants cannot be
characterized as a mistake.’”); see also Miller v. Mancuso, 388
Fed. App’x 389, 391 (5th Cir. 2010) (“Rule 15(c) ‘is meant to
allow an amendment changing the name of a party to relate back to
the original complaint only if the change is the result of an
error, such as a misnomer or misidentification.’”) (quoting and
emphasizing Jacobsen, 133 F.3d at 320); Braud v. Transport Serv.
Co. of Ill., 445 F.3d 801, 806 n.12 (5th Cir. 2006) (explaining
that while “rule 15(c)(3) appears to refer only to the changing or
substitution of defendants, not to the addition of new defendants
without any substitution of the old ones,” “a case involving
misnomer of a defendant is an exception to the more general rule
17
that the addition of a new defendant commences a new proceeding”);
Ultraflo Corp. v. Pelican Tank Parts, Inc., 926 F. Supp. 2d 935,
946-47 (S.D. Tex. 2013)(recognizing that “[a] failure to name the
correct defendant due to a lack of knowledge of the proper party
is not a mistake and will not allow a plaintiff to avail itself of
the relation back doctrine”) (citing Jacobsen, 133 F.3d at 321);
Williams v. Pa. R.R., 91 F. Supp. 652 (D. Del. 1950) (“If the
amendment is granted and its effect is merely to correct a
misnomer, there is no doubt that the amendment would relate back
in time to the date of the original complaint. But if its effect
is to make a new party to the suit, the amendment would not relate
back ....”) (cited in Braud, 445 F.3d at 806 n.12; cf. White v.
McMillin, No. 3:09cv120–DPJ–FKB, 2011 WL 3555766, at *8 (S.D.
Miss. Aug. 11, 2011) (observing that “[a]lthough Jacobsen does not
address amendments to add previously unnamed defendants—as opposed
to substituted John Doe defendants—it contemplates the need to
show notice and a mistake in pleading, neither of which are
apparent in this case.”).
As indicated supra, under Mississippi Rule 15(c), “[a]n
amendment changing the party against whom a claim is asserted”
will relate back where it arises from “the conduct, transaction,
or occurrence set forth or attempted to be set forth in the
original pleading”; and within 120 days of filing the complaint
“the party to be brought in by amendment” received notice of the
18
action such that he “will not be prejudiced”; and the party to be
brought in “knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would have
been brought against [him].”
Miss. R. Civ. P. 15(c)(1)-(2).
Here, although plaintiff recites in her reply brief that Available
Medical had notice of the lawsuit within 120 days of the filing of
her complaint, and she asserts further that Available Medical knew
or should have known that it would have been sued but for her
mistake as to its identity/status, plaintiff has presented no
evidence to support this assertion.
Moreover, plaintiff readily
admits she has no evidence as to “exactly when Jenkins or
Available Medical had notice of the lawsuit,” stating simply that
“this topic was not at issue during Larry Jenkins’ deposition” and
that consequently, “further inquiry and discovery may be necessary
regarding the actual date upon which Available Medical learned of
Plaintiff’s lawsuit.”5
She maintains, though, that it is not
incumbent on her at this point in the proceedings to demonstrate
that she in fact has a viable claim.
Rather, according to
plaintiff, the amendment should be allowed so long as the face of
her complaint states a colorable claim.
See Harmon v. McCreary,
No. 07-3-DLB, 2007 WL 4163879, *3 (E.D. Ky. Nov. 20, 2007) (cited
5
The fact that plaintiff may not have explored the topic
in Jenkins’s deposition does not mean that it was not a topic that
needed to be explored if she intended to seek to add Available
Medical as a party.
19
by plaintiff).
That is, plaintiff submits that the court should
grant her leave to file an amended complaint which on its face is
time-barred and give her the opportunity post-amendment to show
that the complaint is timely under relation-back principles.
Regardless of whether such an approach might be proper, it is
certainly not required, and in the court’s view, it is not
advisable, particularly given that the effect of allowing the
amendment would be to destroy this court’s jurisdiction.
See
Crostley v. Lamar County, Texas, 717 F.3d 410, 421 (5th Cir. 2013)
(affirming denial of leave to amend to add party to litigation
where complaint on its face was time-barred and requirements for
relation back under Rule 15(c) were not present); United States v.
Gonzalez, 592 F.3d 675, 681 (5th Cir. 2009) (finding amendment
would have been futile where proposed amendment did not relate
back to the original complaint and was therefore time-barred); see
also Tatum v. RJR Pension Inv. Committee, 761 F.3d 346, 371 (4th
Cir. 2014) (affirming denial of motion to amend on ground that the
plaintiff’s claims against the defendants proposed to be added did
not “relate back” to those in his first amended complaint, and
thus the statute of limitations barred suit against them);
Anderson v. Bondex Intern., Inc., 552 Fed. App’x 153, 156 (3d Cir.
2014) (holding that where a claim is barred by the statute of
limitations, amendment is only permitted if the proposed amended
complaint “relates back to the date of the original pleading”
20
pursuant to Rule 15(c)); Keel v. Tilton, 487 Fed. App’x 394 (9th
Cir. 2012) (finding no abuse of discretion in denying motion to
amend because new claims would have been untimely because they did
not relate back to the claims set forth in the original petition);
Presnell v. Paulding County, Ga., 454 Fed. App’x 763, 768 (11th
Cir. 2011) (finding no abuse of discretion in denying motion to
amend to add new parties as the plaintiff failed to establish the
requirements of relation back and hence the claims against the new
parties would have been barred by the statute of limitations,
making the amendment futile); Coons v. Industrial Knife Co., Inc.,
620 F.3d 38, 44 (1st Cir. 2010) (holding that once the defendant
showed that the claims exceeded the limitations period, it was the
plaintiff’s burden to allege facts which would take his claim
outside the statute).
In Hensgens v. Deere & Co., the Fifth Circuit found that
where a plaintiff seeks to add a nondiverse defendant in a removed
diversity case, the court confronts competing interests:
“On one
hand, there is the danger of parallel federal/state proceedings
with the inherent dangers of inconsistent results and the waste of
judicial resources.
On the other side, the diverse defendant has
an interest in retaining the federal forum.”
(5th Cir. 1987).
833 F.2d 1179, 1182
The court held:
Because the court's decision will determine the
continuance of its jurisdiction, the addition of a
nondiverse party must not be permitted without
21
consideration of the original defendant's interest in
the choice of forum. The district court, when faced
with an amended pleading naming a new nondiverse
defendant in a removed case, should scrutinize that
amendment more closely than an ordinary amendment. ...
In this situation, justice requires that the district
court consider a number of factors to balance the
defendant's interests in maintaining the federal forum
with the competing interests of not having parallel
lawsuits. For example, the court should consider the
extent to which the purpose of the amendment is to
defeat federal jurisdiction, whether plaintiff has been
dilatory in asking for amendment, whether plaintiff will
be significantly injured if amendment is not allowed,
and any other factors bearing on the equities. The
district court, with input from the defendant, should
then balance the equities and decide whether amendment
should be permitted.
Id.
Where a proposed amendment would be futile, however, there is
no danger of parallel federal/state proceedings and there are no
“competing interests.”
See Wilson v. Bruks-Klockner, Inc., 602
F.3d 363, 368 (5th Cir. 2010) (reasoning that “[a]s a plaintiff
will not be ‘significantly injured’ by the denial of a clearly
meritless claim, it is within the district court's discretion to
deny the amendment as futile”).
Because the court herein
concludes that plaintiff’s proposed amendment should be denied as
futile, it is not necessary to further address the Hensgens
factors.
Addition: Graham-Field
Plaintiff has not contended, much less undertaken to show
that Graham-Field had notice of this lawsuit within 120 days of
the filing of plaintiff’s original complaint.
22
Accordingly, her
request to amend to add Graham-Field as a defendant will be
denied.
Conclusion
Based on all of the foregoing, it is ordered that plaintiff’s
motion to amend and to remand is denied.
SO ORDERED this 28th day of October, 2014.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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