Craig v. United States, 72-2055.

• Decision Date: 17 May 1973
• Docket Number: No. 72-2055.,72-2055.
• Citation: 479 F.2d 35
• Parties: Elizabeth Elaine CRAIG, Administratrix of the Estate of Robert J. Craig, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Timkin Roller Bearing Company, et al., Defendant-Appellee, Litton Systems, Inc., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

479 F.2d 35 (1973)

Elizabeth Elaine CRAIG, Administratrix of the Estate of Robert J. Craig, Deceased, Plaintiff-Appellant, v.UNITED STATES of America, Timkin Roller Bearing Company, et al., Defendant-AppelleeLitton Systems, Inc., Appellee.

No. 72-2055.

United States Court of Appeals, Ninth Circuit.

May 17, 1973.

Walter P. Christensen, San Diego, Cal., for plaintiff-appellant.

Charles W. Rees, Jr., Lawrence L. Pillsbury, of McInnis, Fitzgerald, Rees & Sharkey, San Diego, Cal., for defendant-appellee.

Before CHAMBERS, BROWNING and CHOY, Circuit Judges.

OPINION

PER CURIAM.

Appellant appeals from an order of the district court entered in an admiralty action denying her motion to amend a libel for wrongful death to change the name of defendantMcKiernan-Terry Corp. to Litton Systems, Inc. after the two-year statute of limitations had run.

Previously in the same action, after the two-year statute of limitations had elapsed, appellant had moved to amend the libel to change the name of defendant DOE I to Litton Systems, Inc.Upon denial of that motion, appellant had appealed and this court affirmed the denial in Craig v. United States et al., 413 F.2d 854(9th Cir.1969), cert. denied396 U. S. 987, 90 S.Ct. 483, 24 L.Ed.2d 451(1969)(Craig I).

Appellant contends that the amendment now sought merely corrects a "misnomer" and thus the second sentence of Rule 15(c), F.R.Civ.P.¹ does not apply.The second sentence of Rule 15 (c) was added by 1966amendment accompanied by the following Advisory Committee Note:

"Rule 15(c) is amplified to state more clearly when an amendment of a pleading changing the party against whom claim is asserted (including an amendment to correct a misnomer or misdescription of a defendant) shall `relate back\' to the date of the original pleading.Emphasis added.3 Moore\'s Federal Practice¶ 15.01(9)".

Rule 15(c), therefore, is applicable to the proposed amendment.

In Craig I,we applied the rule and held (1) that within the statutory period, Litton had not received notice, formal or informal, of the institution of the action, and (2) that due to its non-receipt of such notice, Litton would be prejudiced in maintaining its defense on the merits, should the amendment be allowed.Also in Craig I,appellant contended Litton had had notice because prior to the running of the statute it had investigated the incident resulting in her decedent's death in which a seaman also had been injured and had filed suit.We held there that "It cannot be said that Litton's notice of the incident, but not of the institution of this action,...