Marino v. Gotham Chalkboard Mfg. Corp., 64 Civ. 3381.
| Decision Date | 21 September 1966 |
| Docket Number | No. 64 Civ. 3381.,64 Civ. 3381. |
| Citation | 259 F. Supp. 953 |
| Parties | Joseph MARINO, Plaintiff, v. GOTHAM CHALKBOARD MFG. CORP., Anthony Castaldo, doing business as P & C Trucking Co., Meta Construction Company, Inc. and Martin Vahi, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Marcus & Levy, New York City, for plaintiff (John Selawsky, New York City, of counsel).
Watters & Donovan, New York City, for defendant Gotham Chalkboard Mfg. Corp. (John P. Walsh and T. R. Kennedy, New York City, of counsel).
Carmine C. Morasco, New York City, for defendant Anthony Castaldo.
Hanner, Fitzmaurice & Onorato, New York City, for defendants Meta Const. Co., and Martin Vahi.
This is a motion by the plaintiff for leave to amend his complaint to correct a mistake concerning the identity of the proper party defendant by substituting Gotham Chalkboard & Trim Co., Inc. (Gotham Trim) as a party defendant, for and instead of Gotham Chalkboard Mfg. Corp. (Gotham Manufacturing), with the amendment relating back to the date of the filing of the original complaint.
It is conceded that the applicable two-year statute of limitations has expired, and that the complaint can be amended to bring in Gotham Trim as a party defendant only if the amendment relates back to the commencement of the action. The problem turns on a recent amendment to Rule 15(c) of the Federal Rules of Civil Procedure which governs the determination of this motion.
There is no question that the claim asserted in the proposed amended complaint arose out of the conduct, transaction, or occurrence set forth in the original complaint. The amendment, therefore, relates back to the date of the filing of the original complaint if, "within the period provided by law for commencement of the action," Gotham Trim has "(1) received such notice of the institution of the action" that it will not be prejudiced in maintaining its defense on the merits, and "(2) knew or should have known that, but for a mistake concerning the identity of the proper party, an action would have been brought against it."
Concededly, the original complaint was served on Gotham Manufacturing seven days before the applicable statute of limitations expired. There can be no question that Gotham Manufacturing received notice of the action, for it made an appearance. We think it too clear for argument that Gotham Trim also received notice at that time. Both are small New York corporations with identical organizers, officers and directors. Both have identical offices. This identity of management and location clearly establishes that notice to one was notice to the other corporation. Likewise, there can be no question that Gotham Trim has had the benefit from the beginning of any knowledge in the possession of Gotham Manufacturing regarding the defense of this action on its merits.
The papers in opposition to this motion fail to establish any facts showing that Gotham Trim will suffer any prejudice whatever in its ability to conduct a defense on the merits. There can be no question, therefore, that Gotham Trim had notice of the institution of the action within the period of the statute of limitations, and that it will not be prejudiced in maintaining its defense on the merits.
This brings us to the question of whether Gotham Trim knew or should have...
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...to amend their complaint by adding the Company as a party defendant was clearly warranted by Rule 15(c). Cf. Marino v. Gotham Chalkboard Mfg. Corp., S.D.N.Y.1966, 259 F.Supp. 953. Under the provisions of Rule 15(c) the amended complaint related back to the date of the filing of the original......
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