Davis v. Peco Foods of Brooksville, Inc.
ORDER granting in part and denying in part 4 Motion to Dismiss. Signed by District Judge Carlton W. Reeves on 9/6/2017. (AC)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAUSE NO. 3:17-CV-305-CWR-FKB
PECO FOODS OF BROOKSVILLE, INC.
Genette Davis filed this employment discrimination suit against “Peco Foods of
Brooksville, Inc.,” on April 26, 2017. A month later, “Peco Foods, Inc.” filed the present motion
to dismiss. It said it was the successor to Peco Foods of Brooksville and argued that the case
should be dismissed because Peco Foods of Brooksville no longer existed by that name.
Davis responded with printouts from the Mississippi Secretary of State’s office showing
that Peco Foods of Brooksville had merged into Peco Foods, as well as an anti-harassment policy
in which Davis’s former employer referred to itself as Peco Foods of Brooksville. She asked for
the case to proceed or, in the alternative, for leave to amend her complaint to reflect the party’s
correct corporate name.
In rebuttal, Peco contended that leave to amend should be denied because amendment
would be futile. It argued that any amended complaint would not relate back to the original
complaint, and therefore would fail for expiration of Title VII’s statute of limitations.
The Court has reviewed the complaint, arguments, and attachments. It sees the merit of
both sides’ positions: although the Secretary of State’s records show that Peco Foods of
Brooksville was merged, and Davis therefore could have sued the successor entity Peco Foods,
Davis also had a non-discrimination policy in which her former employer held itself out as Peco
Foods of Brooksville.
In these ambiguous situations one suspects that some level of trust between counsel could
have resulted in an agreeable path for how to move forward. That trust is clearly absent here.
Fortunately, though, the law is sufficiently developed to provide a solution. Under Federal Rule
of Civil Procedure 15(c)(1),
An amendment to a pleading relates back to the date of the original pleading when:
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
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:
received such notice of the action that it will not be
prejudiced in defending on the merits; and
knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper
Fed. R. Civ. P. 15(c)(1).
An amended complaint which simply replaces Peco Foods of Brooksville with Peco
Foods satisfies the conditions set forth in Rule 15(c)(1)(C). Peco will not be prejudiced in
defending on the merits; the record shows that it received notice of this suit within three weeks
of its filing. Given the EEOC proceedings Peco also should have known that this action would
have been brought against it, but for a justifiable mistake concerning its corporate identity.
Peco presses that Davis should have known its corporate identity and “did not promptly
move to amend.” But the Supreme Court has rejected those precise arguments. See Krupski v.
Costa Crociere S.p.A., 560 U.S. 538, 541 (2010). Instead, the Court held “that relation back
under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not
on the amending party’s knowledge or its timeliness in seeking to amend the pleading.” Id. And
given everything Peco has known about this suit, under that standard Davis’s amended complaint
would satisfy Rule 15(c)(1)(C).
For these reasons, the motion to dismiss is granted in part and denied in part. Davis shall
amend her complaint within 10 days. If Peco asks that it be served as “Peco Foods,”1 Davis shall
perfect service of process within 30 days from the filing of the amended complaint. See Fed. R.
Civ. P. 4(m).
SO ORDERED, this the 6th day of September, 2017.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
The docket sheet does not show any returned summons, so details of the first service are unknown.
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