Civil Procedure Feb. 18

1. Civil Procedure Feb. 18 Relation Back of Amendments

2. REMINDER • TURN IN OUTLINE

3. Review of 15(a) – general rule on amendments • Amendments freely granted b/c want trial on merits; - only time court won’t grant leave to amend is if amdt futile, or in bad faith, or unduly prejudicial, or repeated failure to cure by previous amendments or undue delay in bringing motion to amend. Note that some circuits say undue delay must be combined w/other factor - in some, undue delay alone may be sufficient.

4. 15c2 – relation back of claims • What’s the test for whether a new claim relates back to the original claim • What is the key issue the court looks at in terms of its analysis • How does the rule/analysis fit into the general policy underlying the Federal Rules and the policy underlying the statute of limitations?

5. Moore v. Baker • ID the key facts – what was the original claim; what is the amended claim; when is the amendment proposed? • Issue is does the new claim relate back • What’s the holding/reasoning • How does the court distinguish this case from Azarbal • Could you make an argument that the new claim should be allowed (i.e. that it meets the 15(c)2 test)

6. Bonerb v. Richard Caron Fndtn (p. 402) • What are the key facts • What was the original claim • What is the proposed amended claim • When is the amendment proposed • WHY does this claim relate back • Could you make a valid counter-argument as to why the claim does not relate back

7. 15c2 • If a claim relates back, are you done with your amendment analysis? If not, what’s left to do?

8. query • How can you reconcile Moore & Bonerb

9. Interpreting same t/a or occurrence (look familiar????) • Historically, courts varied in how they interpret same t/a or occur - THERE ARE BASICALLY TWO TESTS: 1. Is there a logical relationship to the orig’l transaction; OR 2. is there a substantial degree of overlap of evid btwn occurrences raised in amended pleading & the orig’l pleading. • Which test did the Moore court use? Which one was used in Bonerb?

10. Same t/a or occurrence • Rules book says S Ct chose the stricter test in applying R. 15 – some debate about whether the cited case applies to all civil actions or just the habeas petition at issue in that case . I think it is an open ? as to whether courts may still use the logical relationship test in non-habeas cases.

11. query • Both Moore & Bonerb talk about the need for def to have notice that the new claim might be pled. Where is notice mentioned in 15c2? • Why is notice the underlying ? courts are looking at in terms of whether claims relate back?

12. Relation back involves one factor in a 15a analysis – futility • Should courts approach legal and factual futility differently? E.g.- should the analysis be different if defs claim this is futile b/c under our law, we don’t recognize a counselling malpractice claims vs. the claim is futile because the facts will show that everything we did was proper and we didn’t commit malpractice?

13. Relation back of parties • Using the Singletary case prepare a comprehensive outline of the elements you would need to discuss in analyzing a relation back of parties issue. Make sure to be very detailed (e.g. for the notice component, make sure you identify the ways you can show notice). Also, make sure you explain what each element/factor entails (e.g. what does it mean to have an identity of interest) • After you outline the elements, outline plaintiff & def’s arguments for each factor in each element.

14. Outline – 15c3 • What is the first factor you analyze when doing a 15c3 analysis? What are the tests for applying these factors?

15. Student outline • I Claim must arise out of same t/a or occur as set forth in orig’l pleading • A. Substantial overlap of evid btwn the two claims • B Logical relt’shp

16. 15c3 – outline –part 1 • I. Does the claim/defense asserted arise out of the same t/a or occur as raised in the original pleading [Look at facts pled in orig’l complaint] • A. Subst’l overlap of evid (look at the elements/evidence used to prove the elements and see if the claims will have the same witnesses/documents, etc) • B. Logical relationship Test* • (NOTE: *Open ? Whether This Test May Still be Used) • How do you apply the facts to this test?

17. 15c3 cont’d • What is the next issue you look at in a 15c3 analysis – how do you break that issue into the component parts you must analyze?

18. II. Did new party have notice w/in 120 days of when p filed orig’l complaint • Actual notice • Imputed notice • a. Shared attorney [atty likely to let you know you may be sued] • b. Shared identity of interest [so closely related in bsns operations that bringing suit v. one is virtually same as suing the other]

19. 15c3 outline cont’d – Apply facts here • II. Within 120 days has the party to be brought in: • A. rec’d notice of the institution of the action [FAIR NOTICE] • 1. actual • 2. imputed • a. same atty (who is likely to notify party he/she likely to • be sued) • b. identity of interest w/named def • (new and existing party so closely • related in their bsns operations or • otherwise that instituting action against • one serves as notice to the other) • B. Notice was such that new party will not be prejudiced in defending against the law suit (this is usually tied to when/how rec’d notice)

20. Notice hypos • What if, one month after suit was filed, as part of the weekly meetings held by prison health care personnel which included the psych staff, the case was discussed. Would this impact the notice analysis? • Assume the suit was originally filed in federal court and one month after it was filed, the prison attorney interviewed all people involved in Singletary’s care and treatment? Would this impact the notice analysis? • Assume that Regan was supervising Smith, who was in charge of the day-to-day treatment of Singletary. If Smith was named as a defendant and the plaintiff later sought to add Regan, would this relationship between Smith and Regan impact the notice analysis?

21. 15c3 outline cont’d • III. Newly added party has to know that “but for a mistake concerning identity of proper party, action would have been brought against that party” [Knowledge of mistake in identity] • A. John Doe substitution (most say this not a mistake; a few say it’s ok) • B Other situtations – e.g. name wrong corporation b/c change of corp name/ownership

22. Interpreting “mistake” • Some circuits interpret mistake very strictly - must be a mistake (e.g. Kaiser rather than Southeastern Kaiser). Some interpret broadly to include misnomer, misdescribed parties, and in at least one circuit, even means new parties not originally named in the lawsuit. In circuits which allow adding new parties – they say it is b/c the policy behind the rule allows addition of new parties if they had awareness that failure to join it was error rather than deliberate strategy. Examine: did def knew/should know joinder a distinct possibility - once admit had notice of action - presumably he realized his joinder was a distinct possibility.

23. Mistake hypos • What would be the analysis if plaintiffs had sued “John Doe” as yet undiscovered health care/psychological workers charged with caring for the plaintiff? • What if plaintiffs had sued Regan’s colleague John Reagan; the men often got each other’s mail/email/phone calls. Would that impact your 15c3 analysis?

24. Don’t Forget the Basics • Even if the amendment relates back, what else must you analyze?????

25. Hypos • In Anderson v. Grace, one year after the complaint was filed (11 months after the SOL had run) the plaintiffs seek to amend their claim and add a strict liability claim. Should the court allow this amendment? • The issue here is whether it arises from the same t/a or occurrence (so clearly does that this is one of the few “gimmes” you’ll get all semester)

26. hypo • Plaintiffs also seek to amend to add J.R. Riley in his individual capacity as a defendant (in addition to having already named JR Riley Corporation) and to allege that Riley, himself, had dumped the chemicals. Should the court allow this amendment? (use this as a practice question – check yourself via analysis in notes below)

27. hypo • Finally, plaintiffs seek to amend and add 6 new plaintiffs. Does 15(c)(3) allow this? (see next slide)

28. Does 15c3 allow for addition of new plaintiffs after SOL has run? • View 1: Rule addresses amendments changing party AGAINST whom claims are asserted - plaintiffs don’t fit w/in this language - also - the subsections deal w/notice - good arguments to assume Rule doesn’t apply to plaintiffs. Also, how does it comport w/policies of SOL to allow new plaintiffs (may unexpectedly expand def’s liability; but - def on notice that will be liable for damages anyway; encourages some ps to sit back & wait??; • View 2: minority of juris: 15c3 applies to the addition of plaintiffs as well as defendants as long at the defs were aware that others not in the suit had been affected by the def’s conduct. (Base this, in part, on advisory committee notes)