1) RESPONDING TO THE COMPLAINT 3) RESPONDING TO THE COMPLAINT - The defendant usually responds to the plaintiff‟s complaint by filing an answer as provided in Rule 12(a). However, the rules provide a second option in limited circumstances: If the defendant has certain preliminary objections to the suit, he or she may avoid answering immediately by filing a motion. If the motion (objections) are sustained, an answer may be unnecessary. 4) Rule 12(b) - “Every defense, in law or fact, to a claim for relief in any pleading. . .shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * 5) FRCP 7(b) - An application to the court for an order shall be by motion which. . .shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. 8) Pre-answer Motions 12(b) -- Motion to Dismiss 12(e) -- Motion for More Definite Statement 12(f) -- Motion to Strike 9) Motion for More Definite Statement - Rule 12(e) The defects complained of and the details required, Bill of Particulars eliminated 10) Lodge 743 v. United Aircraft, 30 F.R.D. 142 (D. Conn. 1962) 11) HELD: The plaintiff‟s allegations might be applicable to a few or as many as 2000 strikers. The defendant claims that it is not in a position to admit or deny the allegations without the requested information. A FRCP 12(e) motion should be granted if there is not sufficient definiteness to enable the defendant to answer. Therefore the 12(e) motion is granted. However, the plaintiff shall not be required to provide the information until after it has completed discovery and the defendant is given leave to delay filing an answer the complaint until the specific information is provided. “. . .Defendant violated the settlement agreement, which required defendant to recall strikers to work as jobs for which they were qualified became available…” 1/31/02, page 521, The Union had a collective bargaining agreement and went on strike. The Lodge alleged that United Aircraft violated the agreement but had no names to identify the people that were allegedly breached. United Aircraft motioned for more information 12(b), the Lodge responded that was not possible so the case would die. The judge granted the motion with a delay until after discovery. Some states permit fictitious names until complaint is amended. 12) Examples of circumstances granting 12(e) Motion Antitrust complaint is filed by several plaintiffs against several defendants. The charging allegations refer generally to “plaintiffs: and “defendants,” although it is apparent that not all plaintiffs and not all defendants were involved in each claim.
Motel guests were assaulted in their room by third parties. In a negligence action against the motel, the complaint alleged that the motel had disobeyed “the provisions of the applicable statute of the State.” 13) Motion to Strike 14) Rule 12(f) permits motions to strike redundant, immaterial, impertinent or scandalous matter. 15) Motion to Strike - Assume that in her complaint against the defendant, Bullock alleges: 16) FIRST CLAIM FOR RELIEF 6. Defendant with criminal intent to commit fornication further represented to plaintiff that if she did not have a sexual relationship with him she would be fired. 17) Assume that defendant files an answer denying the allegations of bullock‟s complaint in the answer. Defendant then moves to strike allegations that he acted “with criminal intent to commit fornication” from the complaint. How should the Court rule? Criminal Intent is not a civil matter, so the claim cannot stand and could be struck, but be made within 20 days of service and before the answer is made. 18) Motion to Strike - 12(f) motion must be made before responding to a pleading or within 20 days after service of the pleading if no responsive pleading is permitted (e.g., to attack a scandalous answer). 1/31/02 Rule 12(f) bars the motion because the defendant already answered. The motion should be denied. The court, however, may strike the matter on its own. 19) Motion to Dismiss - 1/31/02 same as Demurrer 20) Motion to Dismiss - Filing a pre-answer motion under Rule 12(b) is an alternative to answering the complaint. A defendant who moves to dismiss under Rule 12(b) need not answer the complaint until after the motion is decided. 1/31/02 Asking the court to review the complaint and decide if it is sufficient to sustain a trial. 21) Grounds for Motion to Dismiss Rule 12(b) provides 7 grounds for motion to dismiss: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process (failure to conform the contents of the summons to the requirements of Rule 4(a)); (5) insufficiency of service of process (improper manner of service); (6) failure to state a claim upon which relief can be granted; and (7) failure to join an indispensable party. 1/31/02 See Erin Brockovitch (5) The summons itself had a defect, missing stamp, or signature, etc. (6) The summons was OK, but it was served incorrectly. (7) An indispensable party is needed.
All can (sometimes must) be put in the same motion. 22) Fatal Rule 12 Defenses Some of the 12(b) defenses are immediately fatal to the plaintiff‟s case, if valid: Lack of subject matter jurisdiction-Rule 12(b)(1) Lack of personal jurisdiction-Rule 12(b)(2) Improper venue-Rule 12(b)(3) 1/31/02 Dismissed with prejudice (pre-judgment), May still be appealed. (1) Does court have SMJ? (2) Does court have PJ over defendants (where was cause of action)? (3) Was the court the correct one (right place of cause of action or location of defendants)? 23) Curable Rule 12 Defenses Other defenses under Rule 12(b) raise defects in the procedure by which the plaintiff has initiated the action and are curable: Insufficiency of service of process-Rule 12(b)(5) Failure to join an indispensable party-Rule 12 (b)(7) 1/31/02 Dismissed without prejudice, may be cured. 24) May be Curable May be Fatal - Failure to state a claim upon which relief can be granted Rule 12(b)(6), 1/31/02 If you can state a claim, it can be cured. 25) Raising Rule 12 Defenses in Answer Filing a pre-answer motion is entirely optional. Defendants are not require to use it to raise the defenses listed in Rule 12(b); each may be raised in the answer instead. 1/31/02 12(b) motions may be included with the answer.This may be risky, sometimes filing an answer is a general appearance. 26) Consolidation and Waiver of Certain Rule 12 Defenses 1/31/02 Apply to certain Rule 12 defenses. If certain of these defenses are not raised in the first response (filing of motion or answer) they are waived. 27) Consolidation and Waiver Rules 12(g) and (h), read together, provide that four of the 12(b) defenses will be waived if not raised in the defendant‟s first response to the complaint: personal jurisdiction 12(b)(2) venue 12(b)(3) the form of the process 12(b)(4); or the method of service of process 12(b)(5) These are the disfavored 12(b) defenses that MUST BE IN THE FIRST RESPONSE OR THEY ARE WAIVED!!! These defenses all relate to matters known to the defendant or obvious to the defendant at the time of service of process. 28) Consolidation and Waiver - If the defendant decides to make a pre-answer motion rather than waiting to raise all defenses in the answer, Rule 12(g) requires the defendant to consolidate the unfavored defenses listed in 12(b) in one motion.
29) Consolidation and Waiver - Alice of Arizona sues Bob, a citizen of Nevada who also has a residence in Sacramento in USDC ED Cal for personal injuries received in an automobile accident in Nevada. Bob moves to dismiss Alice‟s action on the ground that venue is improper. The court denies Bob‟s motion. Bob then moves to dismiss Alice‟s complaint for lack of personal jurisdiction. Is the motion to dismiss for lack of personal jurisdiction proper? 1/31/02 The second motion is not proper since a 12(b)(3) must be made in the first response. It must be consolidated or waived. The doctrine of related action says that jurisdiction must be related to the cause of action. 30) Consolidation and Waiver - Answer to 29) The court denies the motion pursuant to Rule 12(g). Bob then for the first time files an answer. Since Rule 12 provides that the defenses can be stated in an answer, Bob includes an allegation that the court lacks personal jurisdiction over him in his answer. Permissible? 1/31/02 – still not permitted, must be in the first pre-answer motion. 31) Consolidation and Waiver - Why are the disfavored defenses disfavored??? personal jurisdiction 12(b)(2) venue 12(b)(3) the form of the process 12(b)(4); or the method of service of process 12(b)(5) 1/31/02 – These all defenses which are obvious to the defendant at the time the summons and complaint they are served. It states the court so you know that if personal jurisdiction and venue are correct, and whether it is filed under 1331 or 1332, and since they served you, you know the method of service. SMJ is not on the list and failure to state a claim requires research. 32) Consolidation and Waiver - David moves to strike redundant and impertinent matter from Patrick‟s complaint pursuant to FRCP 12(f). The court grants this motion. David then moves to dismiss for improper venue and lack of personal jurisdiction. Are these motions still available? 2/7/02: No, they are not still available because of 12g & h (all motions must be made at the same time as the answer or within 20 days of service if no answer is required. 33) Consolidation and Waiver - Dan moves before answering to drop a misjoined party under FRCP 21. The court grants this motion. Dan then moves to dismiss the complaint on the ground that the court lacks personal jurisdiction over Dan. Is the second motion proper? 34) THE FOUR JURISDICTIONAL ENTRANCES TO THE FEDERAL COURT FRONT DOOR - § 1331 Federal Question REAR DOOR - Removal Jurisdiction SIDE DOOR - § 1332 Diversity Action WINDOW - Supplemental Jurisdiction. 35) Consolidation and Waiver - EXCEPTION: Rule 12(h)(2), (3) provide that lack of subject matter jurisdiction and failure to state a claim or failure to join an indispensable party may be
suggested at a later time, even if omitted in an earlier paper. Indeed, these can be raised by the Court sua sponte. 36) Consolidation and Waiver - Dan moves for a more definite statement of the claim. The motion is granted. Paul then serves a more definite statement, showing for the first time possible grounds for a challenge that the complaint fails to state a claim upon which relief may be granted. Dan then moves under Rule 12(b)(6) to dismiss. 37) Motion to Dismiss for Failure to State a Claim 38) 12(b)(6) Motion to Dismiss In a Code Pleading jurisdiction, if the complaint did not state sufficient facts to constitute a cause of action, the defendant could challenge the plaintiff‟s right to proceed with the action by filing a motion called a “demurrer.” The equivalent challenge to the legal sufficiency of the complaint under the Federal Rules is a Rule 12(b)(6) defense of “failure to state a claim upon which relief may be granted.” 39) 12(b)(6) Motion to Dismiss Unlike the other pre-answer defenses, a defense under Rule12(b)(6) challenges the substantive merits of the complaint. The defendant who moves to dismiss “for failure to state a claim upon which relief can be granted” asserts that even if the plaintiff were to prove all the allegations in the complaint, the plaintiff would not be entitled to any relief. 40) 12(b)(6) Motion to Dismiss - Harry witnesses a skiing accident in which Audrey, whom he does not know is seriously injured. Harry, a sensitive soul, is traumatized by the incident and suffers serious emotional distress. Harry sues Lane, who allegedly caused the accident. 2/7/02 – looking at the State‟s Substantive laws for a claim, (NIED), most states require a zone of relationship (danger), even if everything is true, it would not still state a claim. 41) 12(b)(6) Motion to Dismiss - What if Lane is the brother of Audrey who suffers personal injuries in an automobile accident. He sues Clay the driver for loss of friendship and society, that is, for interference with Lane‟s ability to relate to Audrey in the ways that he did before the accident. 2/7/02 – most states would not allow brother‟s to recovery for loss of consortium. 42) 12(b)(6) Motion to Dismiss Landmark Presentations contracts with John Gardner to deliver a lecture on “The Founding of Common Cause.” A week before the lecture, Gardner backs out, claiming that he has lost interest in community relations. Landmark sues for specific performance to force Gardner to carry through with his contract. Under the applicable law, specific performance is not available to compel performance of a contract for personal services. 2/7/02: Most courts when granting a 12 (b) (6) would allow a leave to amend (without prejudice). 43) 12(b)(6) Motion to Dismiss - Since the motion only challenges the sufficiency of the complaint, itself, it stands to reason that the court will only consider the allegations in the
complaint in deciding the motion. The judge does not consider whether it is likely that the plaintiff will prove the allegations or whether the defendant might have a defense to the complaint. The judge only considers whether the facts alleged in the complaint, if proved would state a compensable claim. 44) 12(b)(6) Motion to Dismiss - For purposes of a motion to dismiss, all well-pleaded facts in the complaint are admitted. In ruling on the motion, the court may not consider matters outside the complaint, except matters of public record, court orders, items present in the record and exhibits attached to the complaint. 45) 12(b)(6) Motion to Dismiss - If you make the motion after answering the complaint, its called a motion for judgment on the pleadings under Rule 12(c), but the objection is exactly the same. 46) 12(b)(6) Motion to Dismiss - Freddie is injured when Wayne drives into him. Freddie sues Polteco, which is Wayne‟s employer. But Freddie does not plead that Wayne was acting in the scope of his employment at the time of the accident or plead any other reason why Polteco should pay damages for Wayne‟s negligence. 47) 12(b)(6) Motion to Dismiss - Alice suffers partial paralysis after surgery by Dr. George. She sues Dr. George for performing the surgery without fully informing her of the risk that paralysis might result. Her theory is that if she had been fully informed of the risk she would have chosen not to have the surgery and would not have the paralysis. Dr. George answers, including in his answer that the complaint is barred by the two-year statute of limitations for intentional torts. 48) 12(b)(6) Motion to Dismiss - Although 12(b)(6) is unique in attacking the substantive merits of the plaintiff‟s claim, it is like the “fatal” defenses under 12(b)(1), (2) and (3) in that it can lead to dismissal if it is upheld by the court. 49) 12(b)(6) Motion to Dismiss - However, a plaintiff whose complaint has been dismissed under 12(b)(6) will virtually always be given at least one opportunity to amend the complaint to state a compensable claim, before the case is dismissed with prejudice. 50) American Nurses‟ Assn v. Illinois, 783 F.2d 716(7th Cir. 1986) 51) American Nurses‟ Assn v. Illinois - In a complaint 20 pages long, with a 100 page appendix, the plaintiff alleged, “defendants have intentionally discriminated … against female state employees in the terms and conditions of their employment because of their sex and because of their employment in historically female-dominated sex-segregated job classifications.” 52) Distribution of Illinois State Employees By Sex and Job Classification 53) American Nurses‟ Assn v. Illinois - The district judge dismissed the complaint under 12(b)(6) on the ground that the complaint pleaded a comparable worth case, i.e., that the wages paid to employees in female-dominated classifications should have been higher because those jobs had comparable worth to jobs in male-dominated classification.
54) American Nurses‟ Assn v. Illinois - A plaintiff can plead right out of court. In the system created by the Federal Rules of Civil Procedure a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. If the plaintiff, though not required to do so, pleads facts, and the facts show that he is entitled to no relief, the complaint should be dismissed. 55) American Nurses‟ Assn v. Illinois - A complaint that alleges intentional sex discrimination cannot be dismissed just because one of the practices, indeed the principal practice, instanced as intentional sex discrimination--the employer‟s failure to implement comparable worth--is lawful. A complaint is not required to allege all, or any, of the facts logically entailed by the claim. 56) American Nurses‟ Assn v. Illinois - “The state knew or should have known of the historical and continuing patterns and practices of discrimination in compensation and classifications, as documented in the Illinois study, and willfully failed to take any action to correct such discrimination.” Under what circumstances would failure to take action be actionable? 57) American Nurses‟ Assn v. Illinois - The failure to implement the study, without more, is not a willful (interpreted to mean acting with wrongful intent) violation of Title VII. The state may have decided not to implement the study because implementation would cost too much or lead to excess demand for some jobs and insufficient demand for others. 58) American Nurses‟ Assn v. Illinois - “The only thing that would made the failure a form of intentional and therefore actionable sex discrimination would be if the motivation for not implementing the study was the sex of the employees…” 59) American Nurses‟ Assn v. Illinois - Examples of actionable claims: In classifying jobs for pay purposes the state has used the fraction of men in each job as a factor in deciding how high a wage to pay. If men are a higher fraction, the state pays more. If women are a higher fraction, the state pays less. The state has declined to act on the results of the comparable worth study because it prefers to pay men more than women. 60) Matters of Law In considering a 12(b)(6) motion, the court cannot weigh or assess the probative value of the facts upon which a claim is made. That is a matter for the jury. The judge must limit his or her consideration to whether, based on what is stated in the complaint, there is any conceivable set of facts under which a claim can be stated. In deciding if a “claim” is stated, the trial judge makes a legal judgment: what is a “claim.” A claim is a legally cognizable basis for relief. 61) Matters of Law For example, if the plaintiff alleges that the defendant was negligent and that the defendant‟s negligence proximately caused injury to the plaintiff, it is up to the jury, based on the evidence, to decide if the defendant was negligence and whether that negligence proximately caused the injury complained about.
But what if the plaintiff alleges conduct that legally can constitute negligence but under the applicable definition of “proximate cause,” that conduct does not fit within the definition? Can the judge dismiss the case or must the judge allow the case to be heard by a jury? 62) Hartford v. Merrill Lynch, 74 F.R.D. 357 (W.D. Okl. 1976) 63) Hartford v. Merrill Lynch - Michael T. Conine worked for the Oklahoma State Bank in Vinita, Oklahoma. Conine forged several certificates of deposit. Conine used the forged certificates as collateral to obtain loans from other banks. Conine did not pay the loans. The lending banks sued Oklahoma State Bank and recovered their losses. 64) Hartford v. Merrill Lynch - Mike forged certificates of deposit and used those as collateral for OSB bank loans. He then used the cash to open a margin account at Merrill Lynch. When the margins were called, Conine defaulted and Merrill Lynch went to the bank to collect. The bank relied on Hartford Insurance, who paid Merrill Lynch. Hartford/OSB then sued Merrill Lynch. ML filed a 12 (b) (6). 65) Hartford v. Merrill Lynch - Assuming that Merrill Lynch negligently failed to notify Oklahoma State Bank that its employee has a margin account and was negligent in failing to get bank written approval, and even assuming that such negligence permitted Conine to continue his employment, does the complaint state a claim that the negligence of Merrill Lynch proximately caused the damage and loss sustained by Hartford? Since this is a diversity case, the court must look to the substantive law of Oklahoma for a definition of “proximate cause.” 66) Hartford v. Merrill Lynch Under Oklahoma law, the proximate cause of any injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury. Where the negligence complained of only creates a condition which thereafter reacts with subsequent, independent, unforeseeable, distinct agency and produces an injury, the original negligence is the remote rather than the proximate cause thereof. As a general rule under Oklahoma law, the proximate cause of any injury is a question of fact and only becomes a question of law where the evidence, together with all inferences which may be properly deduced therefrom, is insufficient to show a causal connection between the alleged wrong and the injury. 67) Hartford v. Merrill Lynch - It is a well established rule that whether there is any evidence tending to show causal connection between the acts of the defendant and the injury complained of is a question of law for the Court. 68) Questions of Fact - 2/7/02: Did an event take place? How do you know? How did it happen? Where did it happen? Who was there? What happened?
69) Questions of Law - 2/7/02: These are defined by the legislature. You must decide questions of law based upon the law, not simply based upon fact. In order to dismiss, it must be a question of law. What does a statute mean? When does the statute of limitations run? What facts must a party prove in order to recover? Do the alleged facts satisfy the statutory requirements for a claim? 70) Hartford v. Merrill Lynch - “In considering the allegations of the complaint, the Court finds that the facts contained therein are insufficient to show any causal connection between the alleged negligent acts of Merrill Lynch in failing to advise Conine's employer and obtaining said employer‟s permission for him to engage in trading on margin accounts and the loss sustained by Plaintiff on its banker‟s fidelity bond.” 71) Hartford v. Merrill Lynch - The Complaint fails to show the required proximate cause between the negligence alleged and the injuries complained of as a matter of law. The facts indicate the alleged forgeries or obtaining forged documents by the bank officer were the efficient cause which set in motion the chain of circumstances leading to the loss sustained by Hartford. 72) Hartford v. Merrill Lynch - The allegation that negligent acts of Merrill Lynch permitted the continued employment of the alleged defalcating bank officer only appears to indicate a condition which permitted the acts to go undetected and possibly allowed subsequent wrongful acts to be committed by the bank officer after the first had been committed. Such condition is not any more related to the proximate cause of the loss sustained by Plaintiff than the acts of the directors of the Bank who initially placed Conine in the position of employment as an officer of the bank and retained him in said position while the wrongful acts were committed. 73) ANSWER TO COMPLAINT 74) Rule 8 (b) Defenses; Form of Denials. A party shall state in short and plain terms the party's defenses to each
claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification. of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs or may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments, including averments of the grounds upon which the court's jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Rule 11.
75) Answering the Complaint - Rule 8 requires a defendant to make one of three responses in an answer to the complaint: (1) Admit; (2) Deny specifically unless in good faith denies everything alleged, then general denial allowed; (3) Plead insufficient information. 76) Admissions and Denials - Rule 8(b) requires that a party “shall admit or deny the averments upon which the adverse party relies.” The denials must “fairly meet the substance of the
averments denied.” When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. 77) Admissions and Denials Assume that the plaintiff alleges: “the defendant was negligent and the defendant‟s negligence caused plaintiff injury” and that the defendant wants to show that she was somewhere other than where the accident happened. Answer should b specific: The defendant was not negligent and did not cause the accident because the defendant was not present at the time and place of the collision. 78) Admissions and Denials Rule 8(b) provides that when a pleader “is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial.” 79) Admissions and Denials - which are facts and which are conclusions of law? “the defendant was negligent” “the defendant is married” “the plaintiff corporation has qualified to do business in the state by registration” “On April 1, 1996, First Street became a one-way street in the northerly direction.” 80) Admissions and Denials In general, one‟s own conduct and matters of public record are presumed to be within the knowledge of the pleader. Thus, whether the pleader was negligent, whether the pleader is married, or whether the plaintiff is qualified to do business would be matters to which D would not normally be able to respond with the “without knowledge” response. Under some circumstances, however, such a response would be appropriate, e.g., lapse of memory or destroyed records. The one-way street allegation may be a matter of general knowledge in the community, but even if it is not, it may be a matter of law under a city ordinance. 81) The General Denial - Rule 8(b) permits a general denial: Defendant denies each and every allegation of the complaint. A general denial may not be used unless the pleader intends to controvert the entire complaint, including the averments of the grounds upon which the court‟s jurisdiction depends. 82) FRCP8 (d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. 83) Complain and Answer Complaint:
(1) This Court has subject-matter jurisdiction; (2) On or about April 1, Defendant B executed and delivered to plaintiff a promissory note, a copy of which is annexed as Exhibit A, whereby B promised to pay plaintiff or order on December 31 the sum of $100,000 with interest thereon at the rate of six percent per annum. (3) On December 31, Defendant B defaulted and now owes plaintiff the amount of said note and interest.
(4) On or about June 1, Defendant B conveyed all of B’s real property to Defendant C for the purpose of defrauding plaintiff and hindering and delaying the collection of the indebtedness evidenced by the note.
Answer:
In response to the allegations contained in paragraph (3) Defendant B denies that he owes the Plaintiff $100,000. In response to the allegations contained in paragraph (4) B admits that B conveyed all of B’s real property to C, however B denies that the allegation was fraudulent. Because B was required to respond to the allegations in paragraphs 1 and 2, they are admitted because B made no response to them. Because B has denied paragraphs 3 and 4, they are in dispute.
2/7/02: A verified complaint is a sworn statement by the plaintiff, and the answer must be verified, e.g., tenant-landlord disputes. These are not present in Federal courts. 84) Zielinski v. Philadelphia Piers, 139 F. Supp. 408 (E.D. Penn. 1956) 85) Zielinski v. Philadelphia Piers - Up to 1952, Philadelphia Piers, Inc. was involved in moving freights on piers in Philadelphia. In 1952, Philadelphia Piers sold the business to Carload Contractors, Inc. All employees of PPI were transferred to the payroll of CCI. PPI leased its forklifts to CCI. 86) Zielinski v. Philadelphia Piers - February 10, 1953 - CCI made a report of the accident to its insurance carrier. 87) Zielinski v. Philadelphia Piers, U.S. District Court E.D. Penn. Filed April 28, 1953: “On February 9, 1953 *** 5. A …fork lift owned, operated and controlled by the defendant…and its employees was so negligently and carelessly managed that it caused injuries to the plaintiff.” “FIRST DEFENSE Defendant denies the averments of paragraph 5.” 88) Zielinski v. Philadelphia Piers - April 29, 1953 Dear Insurance Carrier: We find that a fork lift operated by an employee of CCI and insured by you was involved in an accident and injured Frank Zielinski. The complaint names PPI. Shouldn‟t it name CCI? We are sending the complaint to you for handling. Sincerely, CCI 89) Interrogatories: 1. State whether you received any information about an injury to plaintiff on Feb 9, 1953? 2. State whether you investigated the claim, and who made it, and when it was made? Defendant‟s Answer to Interrogatories: 1. We were notified of this accident on or about Feb 9, 1953 by Thomas Wilson 2. We briefly investigated and turned the matter over to our insurance carrier for further investigation. 90) Zielinski v. Philadelphia Piers - District Court decision In 1952 PPI sold its freight moving business to Carload Contractors, Inc. On February 9, 1953 plaintiff was injured in a collision with a fork lift having the initials “PPI.” 91) Zielinski v. Philadelphia Piers
On April 28, 1953 plaintiff sued PPI, alleging in paragraph 5 that the fork lift was “owned, operated and controlled” by defendant its agents servants and employees, was negligently managed and caused injury to plaintiff. When the complaint was served on PPI it sent it to the insurance company for CCI. 2/7/02: PPI replied with a general denial of para. 5, when since they did own the fork lift, they should have answered that they did own the fork lifts, but did not operate nor control the fork lift. So their answer was an ineffective denial which is taken as an admission of the facts. 92) Zielinski v. Philadelphia Piers Defendant filed an answer denying these allegations. In June, 1953 PPI answered interrogatories stating that it had investigated the claim and forwarded it to its insurance carrier. 93) Zielinski v. Philadelphia Piers In August, 1953 PPI employee (mistakenly) stated that at the time of the accident, she was an employee of PPI. In September, 1953, at a pretrial conference PPI first advised plaintiff that in 1952 the business was sold to CCI and that the forklift in question had been leased to CCI. By that time it was too late to sue CCI. 94) Zielinski v. Philadelphia Piers Plaintiff filed a motion to have the judge state to the jury: “It is admitted that on Feb. 9, 1953, the fork life bearing the initials “PPI” was owned by defendant and that Johnson was a servant in the employ of defendant and doing its work on that date.” 95) Zielinski v. Philadelphia Piers The answer contained an ineffective denial of par. 5. It is quite clear that defendant does not deny the averment in para. 5 that the fork lift came in contact with plaintiff, since it admits that an investigation of an occurrence of the accident had been made and that a report dated Feb. 10, 1953, was sent to its insurance company. 96) Zielinski v. Philadelphia Piers Compliance with Rule 8(b) required that defendant file a more specific answer that a general denial. A specific denial of parts of this paragraph and specific admission of other parts would have warned plaintiff that he had sued the wrong defendant. 97) Zielinski v. Philadelphia Piers Pennsylvania courts have consistently held that an allegation of agency in the complaint requires a statement to the jury that agency is admitted where an attempt to amend the answer is made after expiration of the period of limitation. 98) Zielinski v. Philadelphia Piers Principles of equity require that defendant be estopped from denying agency because, otherwise, its inaccurate statements, which it knew (or had means of knowing within its control) were inaccurate, will have deprived plaintiff of his right to action.
99) Oliver v. Swiss Club Tell - The Complaint 1. Plaintiffs are husband and wife and the owners in fee of certain property near Mill Valley, County of Marin; that said property adjoins a road known as " 'Edgewood Avenue' “ 2. Plaintiffs are informed and believe, and therefore allege, that defendant The Swiss Club Tell is an unincorporated association transacting business for the benefit of its members and otherwise in the County of Marin under the name " 'The Swiss Club Tell' " and is and at all times mentioned was the owner in fee and in possession of certain real property near the Town of Mill Valley in the County of Marin adjoining said Edgewood Avenue and above the real property owned by plaintiffs; 3. Defendant The Swiss Club Tell altered the natural flow of water so as to cause water to flow over plaintiffs' land causing damage; that defendant The Swiss Club Tell continues to cause water to so flow and will continue to do so unless enjoined. 100) Oliver v. Swiss Club Tell - The Answer Now comes Swiss Club Tell, an unincorporated association, if any such organization exists, and, answering ... admit, deny and allege as follows: ... 1. The defendant does not have sufficient information to answer the allegations contained in paragraphs 1 to 3, inclusive, ... in said Amended Complaint, and on said ground deny all of said allegations.
NOTE: The verification to the answer was made by J. Thaddeus Cline, who stated that he is the attorney for the defendant; that said defendant resides out of the county wherein the affiant has his office, and that the contents of the answer are true excepting the matters therein stated on information and belief, and that as to those matters he believes it to be true.
There was verified by the lawyer, which is permissible but ill-advised since you become a witness then. 101) Oliver v. Swiss Club Tell - The Motion On August 28, 1961, a motion for summary judgment in favor of defendant, or, in the alternative, for dismissal of the action, was filed by the attorney of record for the defendant The motion was made on the ground that plaintiffs sued a nonexisting organization, The Swiss Club Tell, an unincorporated association, having ceased to exist upon its incorporation on May 21, 1934. 102) Oliver v. Swiss Club Tell - The Argument Plaintiff - The motion for summary judgment should not be granted because the answer, which states that defendant
“lacks information about the status of The Swiss Club Tell” should be deemed an admission that it is an unincorporated association and deemed a party to this action by its appearance. Defendant - The motion should be granted because the entity sued, did not exist at any time pertinent to the action
103) Oliver v. Swiss Club Tell - The Trial Court Ruling - Since, based on the affidavits filed with the
motion, it is undisputed that The Swiss Club Tell, an unincorporated association, has not existed since 1934, the defendant’s motion for summary judgment is granted and "The Swiss Club Tell," an unincorporated association, is dismissed from the action.
104) COURT OF APPEALS FOR CALIFORNIA - Since the denial was ineffective, the issue of defendants status as an entity is an issue for trial. Therefore, the motion for summary judgment should not have been granted. REVERSED AND REMANDED.
105) Affirmative Defenses 106) Rule 8 (c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. 2/7/02: If you don‟t allege an affirmative defense, you lose the ability to use it later (“shall”). 107) FRCP 8(c) - In addition to admissions and denials, the answer must contain any affirmative defenses that defendant may have to the plaintiff‟s claim. An affirmative defense permits a defendant to avoid liability even if the allegations in the plaintiff‟s complaint are true. By pleading an affirmative defense, the defendant avoids the normal consequences which would follow if the allegations of the complaint are true by alleging facts which, if true, precludes liability under the governing law. 108) Affirmative Defenses - accord and satisfaction ,arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver. 2/7/02: Accord & satisfaction – consideration was given; Assumption of risk – the plaintiff assumed the risk that injured him. If test an affirmative defense for a federal diversity case, look to the law of the state that is supplying the substantive law for the case. In a federal question case, look to the federal law. 109) Affirmative Defenses - In diversity actions, state law determines whether a particular contention is an affirmative defense. However, the federal rules determine the manner and time in which such defenses must be raised and when waiver occurs. 110) Affirmative Defenses - Assume that B wants to bring forward facts to show that the A is an infant and thus lacks capacity to sue. B also wants the action dismissed because another action is pending between the same parties for the same cause. Even though lack of capacity and prior pending action are not listed as affirmative defenses in Rule 8(c), they would be “matters constituting avoidance.” B would have to raise these defenses affirmatively in the answer. Furthermore, Rule 9(a) requires that lack of capacity be raised by specific negative averment. B would have to include “such supporting particulars as are peculiarly within the pleader‟s knowledge.” 2/7/02: If you don‟t allege an affirmative defense, you lose the ability to use it later (“shall”). 111) Affirmative Defenses - The same rules governing pleading complaints apply to pleading affirmative defenses, e.g., “This claim is barred by the statute of limitations.” If fraud or mistake provides the basis of an affirmative defense, Rule 9(b) applies and the defense must be set forth with particularity.
112) Affirmative Defenses - Inconsistent defenses can be pleaded: In a breach of contract action, defendant may plead: no contract existed; course of dealing and customs permitted cancellation of the contract; and performance under the contract was impossible. 113) Affirmative Defenses - There is no specific format required for pleading defenses. Ordinarily, all defenses are set forth following the denials and before the prayer and signature: FIRST AFFIRMATIVE DEFENSE 1. As a first affirmative defense, defendant assets that plaintiff has waived any and all claims that he may have or have had against defendant. 114) Affirmative Defenses - Generally, if not asserted in a responsive pleading, an affirmative defense is waived and evidence of such defense is inadmissible at trial. Waiver may be avoided where plaintiff receives adequate notice through some other means (e.g., motions or through discovery) that defendant intends to assert a particular defense. 115) Affirmative Defenses - The enumeration is not exclusive. 8(c) specifically requires “any other matter constituting an avoidance or an affirmative defense” be pleaded affirmatively in the answer. For example, usury, statutory limit on damages 116) Ingraham v. United States, 808 F.2d 1075 (5th Cir. 1987) 117) Ingraham v. United States Ingraham: Violation of the Tort Claims Act because of medical malpractice by government physicians. US: The United States denies that its physicians were negligent. Judge: Judgment for plaintiff in the amount of $1.2 million. Bonds: Violation of the Tort Claims Act because of medical malpractice by government physicians. US: The United States denies that its physicians were negligent. Judge: Judgment for plaintiff in the amount of $4.2 million. US: But wait! Motion: The judgment is limited by the Texas MLII Act. Judge: Motion Denied!!! The limitation of the Act is an affirmative defense which was waived because it was not affirmatively pled. 2/7/02: The Torts Claim Act says to use the same laws as the law of the state in which the court is sitting.
118) Laws and Rules Regulating Appeals - 28 USC 1291: The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States…. 119) US V. Ingraham And Bonds - U.S. Court of Appeals, 5th Cir.: The trial judge erred in not imposing the limitation on damages provided for by the Texas MLII Act
120) Ingraham v. United States - We view the limitation on damages as an “avoidance” within the intendment of the residuary clause of 8(c). We conclude that the Texas statutory limit on medical malpractice damages is an affirmative defense which must be pleaded timely and that in the cases at bar the defense has been waived. 121) But see Taylor v. United States, 821 F.2d 1428 (9th cir. 1987) [Cal. Civil Code 3333.2 limitation on noneconomic damages is a limitation of liability, incorporated into the FTCA, can be raised on appeal even if it was not asserted as an affirmative defense. 122) 2/7/02: These cannot be reconciled with the Ingraham Texas case: Taylor's husband suffers from Lou Gehrig's Disease. In July of 1982, Taylor's husband was hospitalized at Letterman Army Hospital for treatment of pneumonia. He depended completely on a ventilator for oxygen. For reasons not part of the record, Taylor's husband became disconnected from the ventilator. As a result of oxygen deprivation, Taylor's husband suffered severe and irreparable brain damage. Taylor herself was present when her husband became disconnected from his ventilator and witnessed efforts to revive him. The government stipulated to liability for the incident. The only issues at trial were damages for each of Taylor's claims. The district court awarded Taylor $400,000 for loss of consortium and $100,000 for negligent infliction of emotional distress ("Dillon v. Legg " [68 Cal.2d 728; 69 Cal.Rptr. 72, 441 P.2d 912 (1968) ] claim). The government moved, pursuant to Federal Rules of Civil Procedure 59(a), 59(e) and 60(b), for reduction in damages to $250,000 under California Civil Code § 3333.2 ("§ 3333.2"). The district court concluded that Taylor's claims were based on ordinary "common law" negligence rather than professional negligence, and that § 3333.2 did not apply. 123) Taylor claims that the government waived protection afforded by § 3333.2 by failing to raise the issue before judgment. Although state substantive law governs in suits brought under the FTCA, Federal Rules of Civil Procedure determine the manner and time in which defenses may be raised and when waiver occurs. See Perry v. O'Donnell, 749 F.2d 1346, 1353 (9th Cir.1984). Federal Rule of Civil Procedure 8(c) requires defendants to plead affirmative defenses in answer to plaintiff's complaint. Defenses not so raised are waived. Perry, 749 F.2d at 1353; see In re Allustiarte, 786 F.2d 910, 914 (9th Cir.1986), cert. denied,*1433 --- U.S. ----, 107 S.Ct. 169, 93 L.Ed.2d 107 (1987). 124) Whether § 3333.2 is an affirmative defense is a question of state law. Our analysis indicates that § 3333.2 is a limitation of damages rather than an affirmative defense. In Pressler v. Irvine Drugs, Inc., the California Court of Appeal referred to the damage limitation of § 3333.2 as an affirmative defense. 169 Cal.App.3d 1244, 1248, 215 Cal.Rptr. 807, 809-10 (1985). Whether waiver occurred is a question of federal law under the Federal Rules of Civil Procedure. In addition, jurisdiction derives from the FTCA. The extent of the government's liability is a matter of federal law (28 U.S.C. § § 1346(b), 2674), albeit determined according to state standards. The Pressler court's characterization of § 3333.2 as an affirmative defense does not bind this Court.
125) Section 3333.2 is a limitation of liability, not an affirmative defense. Unlike affirmative defenses listed in Fed.R.Civ.Proc. 8(c), § 3333.2 limits, but does not bar recovery for noneconomic damages. If the Federal Rules do not require plaintiffs to plead the extent of damages sought, defendants should not be required to plead the limitation of damages prescribed by § 3333.2. A contrary characterization of § 3333.2 would require defendants to anticipate an award of noneconomic damages in excess of $250,000--a requirement which is unrealistic and inconsistent with the practical notions underlying notice pleading. See Fed.R.Civ.Proc. 8(e), 8(f). 126) AMENDMENT OF PLEADINGS 128) What circumstances lead parties to seek to amend? Patrick enters into a contract with David to give investment advice to David. After a year of giving advice to David monthly, which David followed and which doubled David‟s net worth, David refused to pay Patrick. Patrick filed a complaint against David for breach of contract but later concludes that the contract is unenforceable because David never signed it. Patrick wishes to amend the complaint to allege an action in quantum meruit. 129) What circumstances lead parties to seek to amend? Richard sues Monte Vista Corporation for personal injuries. He pleads that Monte Vista employees caused his injuries so that MV is liable under respondeat superior. However, later, Richard learns from interrogatories that the workers were actually independent contractors. Now he wants to amend his complaint to plead negligent supervision of the contractor by MV. 130) What circumstances lead parties to seek to amend? Regina sues Poe Foundation for the negligence of Samuel in hitting her with a truck. In deposing Samuel, Regina learns that it was actually Mack who was driving the truck. She moves to amend to allege that Mack hit her instead of Samuel. 131) Amendment as a matter of course - The federal rules are extremely liberal. Rule 15(a) permits a party to “amend the party‟s pleading once as a matter of course at any time before a responsive pleading is served. When no responsive pleading, at any time within 20 days after it is served. 132) Amendment as a matter of course - Time Line First - Accrual of Claim Second - Complaint Filed Third -Complaint Served 133) Amendment as a matter of course - Time Line Fourth - Answer Filed 134) Amendment as a matter of course - Time Line But before filing the answer, defendant files a “Motion to Dismiss” 135) Amendment as a matter of course - Time Line
But before filing the answer, defendant files a “Motion to Dismiss” 136) Amendment of answer as a matter of course must be filed within 20 days after answer is filed. 137) Amending Pleadings - To amend afterward, a party must obtain leave of court or the stipulation of the adverse party. The court is directed to permit amendments freely “when justice so requires.” How? Motion under 7(b), with proposed amendment attached. 138) Steve is injured using a lawnmower and sues Row Manufacturing claim Row knew about the defect and recklessly disregarded the hazard to consumers. After discovery was completed and the case was about to go to trial, Steve moves to amend to plead a claim for negligence. 139) Lois sued Hal for breach of contract. Later, just before the trial she seeks to amend her complaint to allege that Hal‟s breach of the contract was also a violation of the State‟s Consumer Protection Act. 140) Plaintiff has been diligent, but discover new evidence immediately before trial which suggests an important new theory of the case. Grant the amendment but continue the trial. 141) The plaintiff does not plead a particular issue, but both parties assume that it is in contention. They conduct discovery on the point and they in fact try the issue at trial. The spirit of the rules is that the parties should not be confined by the original pleadings if those pleadings do not reflect the parties subsequent understanding of the issues in the case. Rule 15(b) allows the court to proceed as thought the issue had been properly pleaded. 142) Moore v. Moore, 391 A.2d 762 (1978) 143) Moore v. Moore, Action for custody of Jessica, our minor daughter. Post-trial motion to conform the pleadings to the evidence so as to amend answer to assert a counterclaim for custody, child and spousal support and attorney fees. Motion granted. Defendants is awarded custody, $500/month child support, $500/month spousal support and attorney fees. 144) Did the trial judge err by permitting Appellee to amend her answer after trial? 145) District of Columbia Court of Appeals HELD: If an issue, which is not raised in the pleadings, is actually litigated with the consent (implied or actual) of an opponent, even after the trial is over, the judge may grant a motion to amend the pleadings to add the unpleaded issue. The consent by a party to litigate an unpleaded issue is implied if evidence on that issue is offered at trial without objection or if it is inherently a part of a pleaded issue. Matters such as attorney‟s fees need not be plead since, under the applicable law, the award is discretionary with the judge and hence need not be pled. Affirmed as to child support and attorney fees. Reversed as to spousal support. 146) BEECK V. AQUASLIDE, 562 F. 2d 537 (8th Cir. 1977)
147) Beeck injured on waterslide, files claim with Kimberly Village Home Association (Iowa). Dear KVHA: Our firm represents Jerry Beeck, we demand payment for injuries suffered on your water slide. Kimberly Village Home Association send letter: Dear Aquaslide: Since your Slide was defective, please Pay this claim By Beeck. Slide provider‟s insurer reports: Aquaslide Manufactured the Slide and it was Defective. 9/23/73 148) BEECK V. AQUASLIDE, 562 F. 2d 537 (8th Cir. 1977) 10/15/73: Product Defect Complaint, 12/12/73 Answer: Defendant admits that it designed and manufactured the slide, but denies liability. 7/15/74 Statute of Limitations expired. 12/30/74 Carl Meyer, President of Aquaslide „N‟ Dive Corporation: “The slide at Kimberly Village was not manufactured by Aquaslide.” Motion for leave of court to amend the answer of Defendant to remove the admission of manufacture and change the response to a denial. Motion granted. Case bifurcated. First the court will try the issue of identity of manufacturer and if decided against the defendant, then the court will try the issue of damages. The jury having found for defendant, judgment is entered in favor of the defendant. 149) U.S. Court of Appeals, 8th Circuit, Beeck Appellant; Aquaslide, Respondent 150) Beeck v. Aquaslide - What governs the exercise of judicial discretion to permit amendments which are sought beyond the period where amendment may be made as a matter of course? Time Prejudice Bad Faith 151) Beeck v. Aquaslide - There would have been substantial harm to one of the parties whichever way the matter was decided. The court had discretion to allow the amendment as to avoid an artificial decision what would have ignored the crucial fact that the defendant did not manufacture the defective slide. 152) The Relation Back Doctrine 153) Relation Back of Amendments - Sometimes a party will amend a pleading after the statute of limitations has expired. If a party adds a claim against an existing party, does it relate back to the original filing date? If a party adds a new party, does the amended pleading relate back to the original filing date? 154) Relation Back of Amendments - What does it mean for an amendment to relate back? It means that an amendment is treated as thought it had been filed in its amended form on the day that the lawsuit was originally filed. 155) Relation Back of Amendments -
Apr 1, 1995 - injury Apr. 1, 1996 Statute of Limitations Applies 156) Relation Back of Amendments - Jan 1, 1996 civil rights Complaint filed 157) Relation Back of Amendments Jun 1, 1996 seeks to amend Complaint to add State Law battery Claim 158) FRCP 15(c) 159) Relation Back of Amendments Changing a Claim or Defense 15(c)(1) allows an amendment to relate back to the date of the original pleading when the law providing the statute of limitations permits relation back. If state law provides the statute of limitations in a diversity case, a claim not arising from the same facts as the claim in the original pleading can relate back if state law so provides. 160) Relation Back of Amendments Changing a Claim or Defense 15(c)(2) allows an amendment changing a claim or defense to relate back, when the claim or defense arose out of the same transaction or occurrence as the claim or defense in the original pleading. 161) Relation Back of Amendments - Jun 1, 1996 seeks to add Officer Green as a defendant 162) Relation Back of Amendments Changing Parties 163) Relation Back of Amendments Changing Parties - A specific provision governing amendments which added new parties was added to FRCP 15(c) in 1966. When an amendment changed the party against who a claim was asserted, it would relate back if: 164) Relation Back of Amendments Changing Parties It arose from the same transaction or occurrence and . . . . . . 165) Relation Back of Amendments Changing Parties The party to be brought in by amendment had received “such notice of the institution of the action that the party would not be prejudiced in maintaining a defense on the merits;” and . . . 166) Relation Back of Amendments Changing Parties This notice had be be received “within the period provided by law for commencing the action against the party to be brought in by amendment;” and . . . . 167) Relation Back of Amendments Changing Parties It had to be shown that the party 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 the party.”
168) Relation back Rule as of 1966 - The complaint must be filed before the Statute of Limitations runs AND that is the last date for the new party to get notice and to know of mistake AND the amendment adding the new party arises from the same transaction as the complaint. 169) Relation back Rule as of 1966 - plaintiff may file amendment adding new party after statute of limitations has run IF new party timely got notice and knew of mistake AND service of process is made within 120 days (4 months) of the Statute of Limitations. 170) Schiavone v. Fortune, 477 U.S. 21 (1986) 171) Schiavone v. Fortune - The plaintiff commenced a diversity action on May 9, 1983. The plaintiff named “Fortune” magazine as the defendant. However, “Fortune” is only a tradename of Time, Inc. Thus, the plaintiff should have sued Time. The statute of limitations ran on May 19th and Time was served with process after that date. 172) Schiavone v. Fortune - Time, Inc refused service because it was not properly named as the defendant. The plaintiff amended the complaint to name Time as the defendant and effected new service on Time on July 21, 1983. ISSUE: Did the amendment relate back to the original filing? 173) Schiavone v. Fortune - HELD: The one-year statute of limitations applicable to the action had run. Thus, the amendment did not relate back. Although Time had received notice of the action within the 120-day period under Rule 4, the party to be brought in had to receive notice of the action within the limitations period. 174) Schiavone v. Fortune - Commentators strongly criticized the Schiavone decision. “If Time had been properly named in the complaint and had been served after the one-year period had run, the action would have been timely. Yet under such circumstances, Time would still not have received notice of the action within the limitations period. Furthermore, when Time did receive notice of the action, it understood perfectly that the plaintiff had made a mistake in naming the defendant and that it was the defendant who should have been sued.” 175) …as applied in Schiavone 176) The Schiavone Amendment to 15(c) 1991 Amendments relate back under three circumstances: (1) when relations back is permitted by the law that provides the applicable statute of limitations; or (2) when the claim or defense asserted in the amended pleading arises out of the same transaction or occurrence; or 177) The Schiavone Amendment to 15(c) (3) when the amendment changes the party or the naming of the party against whom a claim is asserted and (a) the same transaction or occurrence test of (c)(2) is satisfied, (b) the party to be brought in receives notice within the 120-day period for service of process (Rule 4),
(c) the notice is sufficient to prevent the party from being prejudiced in maintaining a defense of the merits, and (d) the party knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. 178) The Schiavone Amendment to 15(c) (3) when the amendment changes the party or the naming of the party against whom a claim is asserted and (a) the same transaction or occurrence test of (c)(2) is satisfied, (b) the party to be brought in receives notice within the 120-day period for service of process (Rule 4), (c) the notice is sufficient to prevent the party from being prejudiced in maintaining a defense of the merits, and (d) the party knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. 179) …as amended after Schiavone 180) Worthington v. Wilson, 790 F.Supp. 829 (C.D. Ill. 1992) 181) Worthington v. Wilson February 25, 1989 excessive force arrest February 25, 1991 complaint filed and the statute of limitations expired June 17, 1991 complaint amended to name individual defendant police officers June 25, 1991 120-day service period expired Motion to dismiss recommended by Magistrate Judge Reviewed de novo by District Judge 182) …as applied in Worthington 183) Worthington v. Wilson - Under the amended version of 15(c) Worthington‟s amended complaint would relate back to February 25, 1991 if the defendants were aware that they were the “unknown officers” and they concede that they knew of the pendency of the lawsuit within 120 days of the filing of the original complaint. 184) Worthington v. Wilson Defendants argue that there was no “mistake.” The court finds that lack of knowledge is not included within the meaning of “mistake.” Is this decision correctly decided? 185) Supplemental Pleadings Upon a proper motion, 15(d) permits “supplemental pleadings.” Directed toward transactions or events that have happened after the date of the pleading sought to be supplement