Korn v. Royal Caribbean Cruise Line, Inc., 83-5567

• Decision Date: 31 January 1984
• Docket Number: No. 83-5567,83-5567
• Citation: 724 F.2d 1397
• Parties: Julius KORN, Plaintiff-Appellant, v. ROYAL CARIBBEAN CRUISE LINE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1397

724 F.2d 1397

Julius KORN, Plaintiff-Appellant, v. ROYAL CARIBBEAN CRUISE LINE, INC., Defendant-Appellee.

No. 83-5567.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 10, 1983.

Decided Jan. 31, 1984.

Bradley D. Marcus, Beverly Hills, Cal., for plaintiff-appellant.

Michael J. Faber, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHOY, WALLACE and ANDERSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Julius Korn appeals a district court denial of his motion for leave to file an amended complaint pursuant to Fed.R.Civ.P. 15(c). We granted permission to appeal the interlocutory order based upon the district court's certification under 28 U.S.C. Sec. 1292(b). We reverse.

I. BACKGROUND

On August 31, 1980, while a passenger aboard the cruise ship M/S "Song of Norway," Julius Korn suffered a knee injury during a fall on the ship's basketball court. Following a consultation with the ship's doctor and a subsequent visit with an orthopedist in Puerto Rico, Mr. Korn curtailed his cruise and returned to his home in California where he underwent surgery to repair the damaged knee.

Shortly thereafter, Mr. Korn's ticket, together with those of his wife and two daughters, were returned to the passenger control officer of Royal Caribbean Cruise Line, Ms. Ordonoz, by the Korns' travel agent. The agent's letter informed Ms. Ordonoz of Mr. Korn's misfortune and requested assistance in obtaining reimbursement for the unused portion of the Korn family's cruise tickets.

In October, 1980, Bradley D. Marcus wrote to Royal Caribbean Cruise Line, Inc. (RCCL Inc.), informing the corporation that he had been retained by Mr. Korn to assist in obtaining a recovery for the injuries sustained as a result of the accident. RCCL Inc. had been identified on the cruise tickets as the general sales agent.

In response, Mr. Marcus was notified that his letter had been forwarded to a Mr. Edward C. Greenop of Caribbean Marine Associates, Inc., for his reply to the personal injury correspondence of Mr. Marcus. Marcus was later informed that Mr. Greenop was the person who usually handled accident claims for RCCL Inc. Mr. Greenop advised that the circumstances surrounding the matter were being examined and requested additional information from Mr. Marcus; he also advised that there might be a possibility of "concluding" the matter. Correspondence continued between Greenop and Marcus, culminating in a letter from Marcus on June 16, 1981. This letter sought to ascertain the response of Mr. Greenop's principals concerning the possibility of settlement of Mr. Korn's claim. When no reply was forthcoming, suit was filed on behalf of Mr. Korn.

The complaint, filed July 31, 1981, alleged negligence on behalf of the ship owner and sought to recover damages from the named defendants, RCCL Inc. and Does 1 through 10, inclusive. Service of process was attempted by mail to RCCL Inc.'s designated agent for service, a Mr. James Hurley of Miami, Florida. When no response was received, service was effected on RCCL Inc. by mailing the relevant documents to Mr. Greenop. This service of process was accomplished 16 days after the running of the relevant statute of limitation period on August 31, 1981.

After discovering that RCCL Inc. was not the owner of the vessel, but was instead only its marketing corporation, Mr. Korn attempted to amend his original complaint to name the proper party defendant, Royal Caribbean Cruise Line A/S. This motion, pursuant to Fed.R.Civ.P. 15(c), was denied by the district court on the ground that the failure to timely serve the named defendant prevented the party to be added from receiving the required notice. Thus, the issue to be decided here is whether RCCL A/S received notice sufficient to permit its substitution as a party defendant.

II. DISCUSSION

Fed.R.Civ.P. 15(c) is the only vehicle through which a plaintiff may amend his complaint, after a statute of limitation period has run, to accurately name a defendant who was not correctly named in the pleading before the limitation period had run. Craig v. United States, 413 F.2d 854, 856 (9th Cir.1969), cert. denied, 396 U.S. 987, 90 S.Ct. 483, 24 L.Ed.2d 451 (1969) (Craig I ). Under Rule 15(c), an amended complaint changing the party against whom the claim is asserted will relate back to the original complaint where:

(1) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading; (2) within the period provided by law for commencing the action against him, the party to be brought in by amendment has received such 'notice of the institution of the action' that he will not be prejudiced in maintaining his defense on the merits; and (3) within the period provided by law for commencing the action against him, the party to be 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 him.

Id. at page 857. While it is the second condition that provided the district court a basis for its denial of the motion to amend, the first and third conditions must also be met in order for an amended complaint to relate back to the date of the original pleading. Id. On review, our task is to determine whether the decision of the district court constituted an abuse of discretion. Friends of the Earth v. Coleman, 518 F.2d 323 (9th Cir.1975).

In the instant matter, the district court determined that before a new party could be brought in under an amended complaint, actual notice of the filing of the lawsuit--accomplished by service of process--must have been effected on the originally named defendant prior to the running of the relevant statute of limitation. The court believed that this notice was necessary to fulfill the requirements of Fed.R.Civ.P. 15(c). Based on our understanding of the law of this circuit, we disagree.

This circuit has applied Fed.R.Civ.P. 15(c). In Craig I, 413 F.2d 854, a Death on the High Seas Act case was filed only three days prior to the expiration of the relevant statute of limitation. Subsequently, the plaintiff tried to add Litton Systems, Inc. as a defendant, relying on Rule 15(c). This circuit rejected the plaintiff's motion to amend despite the fact that Litton had actual notice of the accident giving rise to the claim and had conducted a thorough investigation of the accident in regard to another case arising out of the same incident. Nonetheless, because the plaintiff was unable to show that Litton had actual notice of the institution of the Craig action prior to the expiration of the relevant limitation period, denial of the motion to amend was affirmed. Id. at 858.

Our discussion did not end there. We held that notice of the institution of an action could be either formal or informal and noted that, even if Rule 15(c) required notice of the accident rather than notice of the institution of the action, the Craig I plaintiff had failed to demonstrate that the party to be added would not be prejudiced in maintaining its defense on the merits. Craig I, 413 F.2d at 857 and 858. See notes of the Advisory Committee following the 1966 Amendment of Fed.R.Civ.P. 15(c).

The rule that the notice required under Rule 15(c) could be either formal or informal so long as the party to be added was not prejudiced in maintaining its defense on the merits was reaffirmed by this circuit in Craig v. United States, 479 F.2d 35, 36 (9th Cir.1973) (Craig II ) (Craig I appellant contending that amendment constitutes "misnomer" rather than change of name). More recently, in Williams v. United States, 711 F.2d 893 (9th Cir.1983), a district court's denial of a motion to amend was upheld where the party to be brought in had not received notice of the institution of suit within the period provided by law for commencing the action against him--even though the notice of suit did not have to be formal. Id. at 898. Although the Williams court was presented with an opportunity to impute knowledge to the party to be added, it refused to do so. The court did not impute knowledge in Williams because to do so it would have been necessary to impute knowledge from a government agency to the U.S. Attorney or the U.S. Attorney General. Id. at 898. The Williams court did not, however, reject the imputed knowledge approach for all cases.

In the instant matter, Mr. Korn argues that Rule 15(c) permits a complaint to be amended after the statute of limitation has run where the party to be added has had such timely and adequate notice of the action that it will not be prejudiced in maintaining its defense on the merits. Such an approach avoids adopting a per se rule which would focus on the specific instant of actual notice; instead it would require examination of the circumstances surrounding the initiation of the lawsuit and possible prejudice to the party to be added. This approach furthers the mandate of Fed.R.Civ.P. 15(a), that leave to amend "shall be freely given when justice so requires."

In Craig I we were concerned with avoiding prejudice to the party to be added; timely notice within the statute of limitation period was one manner of assuring that the party to be added had the opportunity to investigate the facts giving rise to the claim before they became stale. Even though the party to be added had thoroughly investigated the factual issues relevant to the accident giving rise to the Craig wrongful death action, the investigation had focused on those factual issues relating to the lawsuit of a seaman who had been injured in the same accident. Craig I, 413 F.2d at 858. Addressing the question of adequate notice, we held, "[u]nder these circumstances it cannot be said that notice of the incident, but not of the institution of th[e] action, within the statutory period, did not prejudice Litton [the part...