Chase v. Atlas Copco Drilling Solutions, LLC

Filing 49

ORDER Denying 44 Motion to Dismiss. Signed by Judge Philip M. Pro on 3/28/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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KEVIN CHASE,
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Plaintiff,
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v.
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ATLAS COPCO CRAELIUS AB,
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Defendant.
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2:10-CV-02249-PMP-PAL
ORDER

Presently before the Court is Defendant Atlas Copco Craelius AB’s Motion to

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Dismiss (Doc. #44), filed on January 30, 2012. Plaintiff filed an Opposition (Doc. #45) on

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February 16, 2012. Defendant filed a Reply (Doc. #46) on February 24, 2012. The Court

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held a hearing on this motion on March 26, 2012.

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The parties agree the only issue before the Court is whether Plaintiff’s Amended

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Complaint relates back to the original Complaint, such that it is not barred by the statute of

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limitations. Plaintiff was injured on November 10, 2008 while operating a CS-14 Coring

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Rig. (Notice of Removal (Doc. #1), Ex. A (“Compl.”) at 2.) Plaintiff filed the original

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Complaint in Nevada state court on November 10, 2010, naming Defendant Atlas Copco

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Drilling Solutions LLC (“Drilling Solutions”) as well as “doe” defendants, specifically any

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“designers, manufacturers, installers, maintainers, repairers or distributors of the subject

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Coring Rig.” (Id.) The parties agree Plaintiff filed the original Complaint within the

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applicable two-year limitations period.

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On May 13, 2011, Plaintiff moved to amend to add Atlas Copco Craelius AB
(“Craelius”) as a defendant. (Mot. to Am. Compl. to Add Def. (Doc. #9).) The Court

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granted the motion on June 13, 2011 (Doc. #12), and Plaintiff filed the Amended Complaint

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the same day. (Am. Compl. (Doc. #14).) Plaintiff served Craelius on October 19, 2011.

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(Summons (Doc. #28).)

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Craelius argues the Court should dismiss the Amended Complaint because it was

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not named as a defendant until after the limitations period ran and Plaintiff has no basis for

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the Amended Complaint to relate back to the original Complaint. Plaintiff responds that

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because it complied with “doe” pleading requirements under Nevada law, the Amended

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Complaint is timely. Plaintiff also argues that service on Drilling Solutions constituted

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constructive notice to Craelius.

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Pursuant to Federal Rule of Civil Procedure 15(c)(1)(A), an amendment relates

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back to the date of the original pleading when “the law that provides the applicable statute

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of limitations allows relation back.” The parties agree that Nevada law provides the

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applicable statute of limitations in this case. Nevada Rule of Civil Procedure 10(a) permits

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a plaintiff to use “doe” pleading and to amend his complaint to substitute a “doe” defendant

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for a named defendant once the plaintiff discovers the defendant’s true identity.

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Nurenberger Hercules-Werke GMBH v. Virostek, 822 P.2d 1100, 1105-06 (Nev. 1991).

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To relate back, the plaintiff must satisfy a three-part test. First the plaintiff must

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plead “fictitious or doe defendants in the caption of the complaint.” Id. at 1106. Second,

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the plaintiff must set forth in the complaint “the basis for naming defendants by other than

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their true identity, and clearly specifying the connection between the intended defendants

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and the conduct, activity, or omission upon which the cause of action is based.” Id. Finally,

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the plaintiff must exercise “reasonable diligence in ascertaining the true identity of the

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intended defendants and promptly mov[e] to amend the complaint in order to substitute the

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actual for the fictional.” Id. Factors bearing on reasonable diligence include, but are not

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limited to, “whether the party unreasonably delayed amending the pleadings to reflect the

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true identity of a defendant once it became known, whether the plaintiff utilized judicial
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mechanisms such as discovery to inquire into a defendant’s true identity, and whether a

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defendant concealed its identity or otherwise obstructed the plaintiff’s investigation as to its

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identity.” Sparks v. Alpha Tau Omega Fraternity, Inc., 255 P.3d 238, 243 (Nev. 2011)

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(citations and internal quotation marks omitted).

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Craelius contends that the Nevada Supreme Court recently has indicated that

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Nevada Rule of Civil Procedure 15(c) governs the addition or substitution of parties, not

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Rule 10(a). See Costello v. Casler, 254 P.3d 631, 634 n.4 (Nev. 2011). However, Costello

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disavowed only dicta in Nurenberger and Medical Device Alliance, Inc. v. Ahr, 8 P.3d 135,

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142 n.5 (Nev. 2000), where those cases had indicated that Nevada Rule of Civil Procedure

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15(c) did not apply to the addition or substitution of parties. Id. Costello did not overrule

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Nurenberger’s main holding that a plaintiff may utilize doe pleading under Rule 10(a) and

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the substitution of a named party for the doe defendant will relate back if the plaintiff meets

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the three part test in Nurenberger. Costello indicated that Nevada Rule 15(c) is an

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additional source of relation back for the addition or substitution of parties, not that it is the

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exclusive source.

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Craelius does not argue that Plaintiff has failed to meet the Nurenberger factors.

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Plaintiff’s original Complaint named doe defendants in the caption. (Compl.) Plaintiff’s

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original Complaint also set forth the basis for naming “doe” defendants rather than using

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their true identities and specified the connection between the intended defendants and the

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conduct upon which Plaintiff’s claims are based. Plaintiff identified the doe defendants as

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“designers, manufacturers, installers, maintainers, repairers and distributors of the subject

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Coring Rig, or its component parts” who were unknown at the time. (Id. at 2.) Finally,

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Plaintiff exercised reasonable diligence in ascertaining Craelius’s identity and moving to

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amend. This case is in its early stages and prior to discovery, Plaintiff learned from

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Defendant Drilling Solutions that it potentially had named the wrong “Atlas Copco” entity.

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Plaintiff thereafter moved to amend within no more than four months of first learning about
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the possibility that Craelius was the proper defendant rather than Drilling Solutions. Given

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that Plaintiff needed some time to investigate Drilling Solutions’ representations that it was

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not the manufacturer of the rig and that Craelius was the entity Plaintiff intended to sue, the

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Court does not find a three to four month delay in moving to amend unreasonable.

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IT IS THEREFORE ORDERED that Defendant Atlas Copco Craelius AB’s
Motion to Dismiss (Doc. #44) is hereby DENIED.

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DATED: March 28, 2012
_______________________________
PHILIP M. PRO
United States District Judge

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