Mincy v. Klem et al

Filing 163

ORDER - It is hereby ORDERED that: 1. Pltf's motion 127 to amend 2nd amended complaint to substitute name of party is GRANTED.; 2. Pltf's motion to reopen discovery 153 to allow pltf to pursue discovery w/ re: CMM GRANTED in part & DENIED in part... (see Paras 2a & 2b for specific instructions & limitations re: same). (See order for complete details.) Signed by Honorable Christopher C. Conner on 10/11/11. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HILTON KARRIEM MINCY,
Plaintiff,
v.
EDWARD KLEM, et al.,
Defendants

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CIVIL ACTION NO. 1:07-CV-0790
(Judge Conner)

ORDER
AND NOW, this 11th day of October, 2011, upon consideration of plaintiff’s
motion to amend (Doc. 127) his Second Amended Complaint (Doc. 44) to substitute
defendant “CMM” for defendant Hryciyna in Count II, and plaintiff’s motion to
reopen discovery (Doc. 153) so that he may ascertain the identity of “CMM,” and it
appearing that defendants oppose the motion to amend on the basis that plaintiff is
unable to meet Federal Rule of Civil Procedure 15(c)(1)(C)1 requirements pertaining
to the relation back of amendments (Doc. 146), to wit, that the claim arises out of
the same conduct originally pleaded, that within 120 days of the original filing date
the party to be added by amendment received notice of the action such that the
party will not be prejudiced in defending the case on the merits, and that the party
to be added knew or should have known the action would have been brought
against him, but for a mistake concerning the proper party’s identity, and the Court

“Rule 15(c) can ameliorate the running of the statute of limitations on a
claim by making the amended claim relate back to the original timely filed
complaint.” Singletary v. Pennsylvania Dep’t of Corrs., 266 F.3d 186, 193 (3d. Cir.
2001) (citing Nelson v. County of Allegheny, 60 F.3d 1010, 1015 (3d Cir. 1995)).
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being persuaded by plaintiff’s argument (Doc. 128) that the claim is the same as in
the Second Amended Complaint because he is only seeking to substitute a
defendant, and, despite the fact that there is no evidence that “CMM” had notice of
the suit within the 120-day period, it is likely that, via the “shared attorney”
method, which requires an inquiry of whether notice of the institution of this action
can be imputed to the defendant sought to be named within the relevant 120-day
period by virtue of representation he shared with a defendant originally named in
the lawsuit, Singletary v. Pennsylvania Dep’t of Corrs., 266 F.3d 186, 196 (3d. Cir.
2001), that “CMM” would be represented by the same attorney who has represented
all defendants since the inception of this action, and that “the attorney is likely to
have communicated to the latter party that he may well be joined in the action”
within the 120-day period, id., such that notice could be imputed to “CMM”, and
that such notice is sufficient to allay any prejudice that “CMM” might have suffered
by not being named in the original complaint, and that “CMM” knew or should
have known within the 120-day time period that the action would have been
brought against him but for a mistake concerning his identity, it is hereby
ORDERED as follows:
1.

Plaintiff’s motion to amend (Doc. 127) the Second Amended Complaint
to substitute the name of a party is GRANTED.

2.

Plaintiff’s motion to reopen discovery (Doc. 153) to allow plaintiff to
pursue discovery with respect to “CMM” is GRANTED in part and
DENIED in part:

a.

The motion is GRANTED with respect to plaintiff’s request that
defendants be compelled to identify “CMM.” Counsel for
defendants shall FILE a notice with this court on or before
October 17, 2011, setting forth the full name of Pennsylvania
Department of Corrections employee “CMM”, identified in the
prison log as having retrieved plaintiff’s property from the
mailroom at the State Correctional Institution at Mahanoy on
April 12, 2005. (Doc. 127, at 12.)2

b.

The portion of the motion seeking to reopen the discovery
period to afford plaintiff the opportunity to serve discovery on
“CMM” is DENIED, without prejudice, as premature.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

Once the identity of “CMM” is provided to the Court, his name will be
substituted and an Order will issue directing service on the newly substituted
defendant.
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