O'Loughlin v. National R.R. Passenger Corp.

• Citation: 928 F.2d 24
• Decision Date: 06 February 1991
• Docket Number: No. 90-2072,90-2072
• Parties: John T. O'LOUGHLIN, Plaintiff, Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 24

928 F.2d 24

18 Fed.R.Serv.3d 1492

John T. O'LOUGHLIN, Plaintiff, Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant, Appellee.

No. 90-2072.

United States Court of Appeals, First Circuit.

Heard Feb. 6, 1991.

Decided March 18, 1991.

Stanley M. Shingles with whom Brobyn & Forceno was on brief, for plaintiff-appellant.

Jonathan A. Karon with whom Bruce G. Tucker and Tucker & Biegel were on brief, for defendant, appellee.

Before CAMPBELL and SELYA, Circuit Judges, and BOWNES, Senior Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Plaintiff, John T. O'Loughlin seeks damages under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. Secs. 51-60, the Federal Safety Appliance Act, 45 U.S.C. Secs. 1-16, and the Boiler Inspection Act, 45 U.S.C. Secs. 22-34, for injuries he allegedly sustained while he was employed by the defendant, National Railroad Passenger Corporation ("Amtrak"). O'Loughlin appeals from the district court's order dismissing the complaint for failure to comply with the statute of limitations.

His original complaint was filed on January 23, 1990, asserting a claim for injuries occurring, allegedly, on August 6, 1987. ¹ By a stipulation of the parties filed on July 16, 1990, O'Loughlin was allowed to amend this complaint, though Amtrak explicitly stated in a cover letter accompanying the signed stipulation that its assent was conditioned upon its "reservation of the right to raise any and all defenses to your amended complaint, including, but not limited to, the statute of limitations." O'Loughlin filed the amended complaint also on July 16, 1990. The sole difference between the amended complaint and the original one was a change in the date of the alleged incident from "August 6, 1987" to "June 8, 1987." Amtrak then moved to dismiss ² O'Loughlin's amended complaint as being barred by the three-year statute of limitations under the FELA, 45 U.S.C. Sec. 56. ³ Amtrak pointed out that O'Loughlin's amended complaint was filed five weeks more than three years after the alleged incident on June 8, 1987. The district court, after hearing, granted Amtrak's motion. O'Loughlin then appealed. We affirm.

Amtrak emphasizes that O'Loughlin notified it of two separate incidents: first, O'Loughlin reported to Amtrak that he had injured his neck, back and right arm in a collision between two railroad cars on June 8, 1987; second, O'Loughlin reported an injury to his neck and back when bending over to insert a cable into a railroad car on August 6, 1987. Amtrak argues that the original complaint asserted a claim for the August 6 accident whereas the amended complaint asserted a claim for the entirely different June 8 accident. Amtrak argues that, in those circumstances, it could not be determined that, "the claim ... asserted in the amended [complaint] ... arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original ... [complaint]." Accordingly, there is no basis for deeming the amended complaint to relate back to the date of the original pleading under Fed.R.Civ.P. 15(c). ⁴

O'Loughlin argues, to the contrary, that the amendment does relate back under Rule 15(c) to January 23, 1990, the day the original complaint was filed. If so, the amended complaint would be well within the limitations period. O'Loughlin argues the amendment merely corrected a clerical error confusing the dates. (He suggests that 6/8/87 was, at some point, transposed to 8/6/87, although this does not fully explain how 8/6/87 became transmuted into "August 6, 1987," as written in the original complaint.) O'Loughlin argues that the fact he sustained a separate injury on August 6 was only a curious coincidence, the existence of which did not prejudice Amtrak. According to O'Loughlin, correspondence between the parties prior to the date the original complaint was filed establishes that Amtrak was well aware all along that it was the June 8, 1987 train collision incident that was really at issue in the original complaint, notwithstanding the August 6 date. O'Loughlin also contends that, even if Amtrak was not so aware, there is no evidence in the record suggesting that Amtrak changed its position as a result of this error in such a way as to affect its ability to defend the lawsuit.

While courts have generally allowed amendments that correct technical errors to relate back where such corrections do not set up a new claim for relief, this court has refused to allow an amendment to assert a claim which was not even suggested in the original complaint. Tessier v. United States, 269 F.2d 305, 308 (1st Cir.1959). This approach is consistent with the law as commonly stated:

[I]f the alteration of the original statement is so substantial that it cannot be said that defendant was given adequate notice of the conduct, transaction, or occurrence that forms the basis of the claim or defense, then the amendment will not relate back and will be time barred if the limitations period has expired.

6A Wright, Miller & Kane, Federal Practice and Procedure, Sec. 1497 (2d ed. 1990). See also 3 Moore's Federal Practice, p 15.15 (1990) ("[I]f the original pleading gives fair notice of the general fact situation out of which the claim or defense arises, an amendment which merely makes more specific what has already been alleged ... will relate back even though the statute of limitations has run in the interim."). (Emphasis supplied.)

We have scoured the original complaint and can find no allegation of facts that could be said to give Amtrak fair notice of the general fact situation out of which the claim in the amended complaint arose. The original complaint simply asserts: "On or about August 6, 1987, the Plaintiff, while working within the scope of his employment in Boston, Massachusetts, was injured due to unsafe and inadequate working conditions." As reports relating to two incidents had been earlier submitted, one on June 8, 1987, and the other on August 6, 1987, it could not be ascertained from the original complaint that O'Loughlin was suing for the separate injury he had sustained on June 8, 1987. ⁵ As he had a continuing relationship as an employee with the company, O'Loughlin could have been injured "due to unsafe and inadequate working conditions" on either date. The original complaint provides no hint that O'Loughlin was attempting to assert a claim for the June 8, 1987 train collision, and the amended complaint asserting such a claim therefore cannot relate back.

O'Loughlin's submission of correspondence that purportedly notified Amtrak of his intent to pursue a claim for the June 8, 1987 train collision cannot change this result. It is the complaint itself which must provide notice. Of course, the complaint may be supplemented by basic extrinsic facts known to the parties. An Amtrak passenger plaintiff might establish, for example, with the help of outside evidence, that the defendant had received adequate notice of a particular accident merely from allegations of a train wreck in the complaint, even though the date of the accident was misstated. But this is not such a situation. Even if contextual facts are considered, the complaint does not suggest that it is based on a June 8 train collision. Rather, it only asserts...