Wandrey v. Service Business Forms, Inc., Civ. A. No. 88-1616-T.

• Decision Date: 09 April 1991
• Docket Number: Civ. A. No. 88-1616-T.
• Citation: 762 F. Supp. 299
• Parties: Kenneth WANDREY, Plaintiff, v. SERVICE BUSINESS FORMS, INC.; The Ganzer Corporation, Inc.; Kevin Ganzer; Lawrence Wolfberg; and William McCarthy, Defendants.
• Court: U.S. District Court — District of Kansas

762 F. Supp. 299

Kenneth WANDREY, Plaintiff, v. SERVICE BUSINESS FORMS, INC.; The Ganzer Corporation, Inc.; Kevin Ganzer; Lawrence Wolfberg; and William McCarthy, Defendants.

Civ. A. No. 88-1616-T.

United States District Court, D. Kansas.

April 9, 1991.

Charles W. Harris, Steven J. Rupp, Curfman, Harris, Borniger & Rose, Wichita, Kan., Michael Kukla, Cowlin, Ungvarsky, Kukla & Curran, Crystal Lake, Ill., and Stuart L. Shapiro, Aurora, Colo., for plaintiff.

Kathryn Gardner, William Robert Martin, Martin, Pringle, Oliver, Wallace & Swartz, Wichita, Kan., Jennifer P. Ewers, James F. Murphy, Conklin & Adler, Chicago, Ill., Gary M. Austerman, Klenda, Mitchell, Austerman & Zuercher, Wichita, Kan., and Robert J. Verrando, Adler, Kaplan & Begy, Chicago, Ill., for defendants.

MEMORANDUM AND ORDER

THEIS, District Judge.

This matter is before the court on the joint motion of defendants Service Business Forms, Inc. ("SBF"), the Ganzer Corporation, Inc. ("Ganzer Corp."), Kevin Ganzer, and Lawrence Wolfberg for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) and (b)(5). The action is one in diversity for breach of an oral contract made in 1984. Defendants' motion is made on the grounds that plaintiff's action is barred by the Kansas statute of limitation, and alternatively, that the action against defendant Wolfberg should be dismissed for insufficiency of process.

As an initial matter, the court notes that defendants have moved to strike all responses filed by plaintiff for failure to engage a local attorney in this litigation. D. Kan. Rule 404. Plaintiff responds that local counsel has been actively involved in this litigation, and such local counsel now moves that the out-of-state attorneys be admitted pro hac vice to the practice of this court. The court will grant the motion of local counsel and will deny the motion to strike plaintiff's response.

I. Procedural History

The relevant chronology of this case is not in dispute.

1. On October 9, 1986, plaintiff filed suit against SBF in Illinois state court.

2. In late 1986, and upon motion of SBF, the case was removed to the United States District Court for the Northern District of Illinois.

3. On August 7, 1987, the court allowed plaintiff to amend the complaint to add defendants Kevin Ganzer, Lawrence Wolfberg, and William McCarthy.

4. On October 23, 1987, the court dismissed SBF for lack of personal jurisdiction.

5. On July 29, 1988, the court dismissed Ganzer for lack of personal jurisdiction.

6. Thereafter, on September 28, 1988, plaintiff moved under 28 U.S.C. § 1404 to transfer the case to the United States District Court for the District of Kansas. On the same day, the Illinois federal district court granted this motion, at which time the case was transferred to this court. The only defendants remaining on the date of this transfer were William McCarthy and Lawrence Wolfberg.

7. On March 29, 1989 plaintiff sought and was granted leave to file a second amended complaint that named existing defendants Wolfberg and McCarthy, renamed defendants SBF and Ganzer, and named for the first time Ganzer Corp.

II. Discussion

In this diversity action, the law of the forum state supplies the statute of limitation. E.g., Kitchens v. Bryan County Nat'l Bank, 825 F.2d 248, 254-55 (10th Cir.1987). The parties agree that the relevant statute of limitation for this action is the Kansas 3-year statute for "actions upon contracts not in writing...." K.S.A. § 60-512(1). "Under K.S.A. § 60-512 a cause of action for breach of contract not in writing must be instituted within three years from the date of the breach of the contract." Wolf v. Brungardt, 215 Kan. 272, 524 P.2d 726, syl. ¶ 1 (1974). From the parties' briefs the court gleans agreement that the alleged breach occurred at the earliest on May 1, 1984 and at the latest on October 1, 1984. Thus, any claim filed after October 1, 1987 is untimely as a matter of law under the Kansas statute.

A. Defendants Ganzer and SBF

As noted, the Illinois federal district court dismissed the claims against SBF and Ganzer on October 23, 1987 and July 29, 1988, respectively, for lack of personal jurisdiction. Thereafter, the case was transferred to this court on September 28, 1988. Plaintiffs did not rename these two defendants until the magistrate granted leave to amend the complaint on March 29, 1989.

Ganzer and SBF contend that plaintiff's action against them is not saved by the Kansas 6-month savings statute, which allows the refiling of actions timely filed, but dismissed for reasons other than upon the merits. K.S.A. § 60-518. See also Prince v. Leesona Corp., 720 F.2d 1166, 1168-69 (10th Cir.1983) (Kansas savings statute applies whether first action was filed in forum state or another state). The court finds this defense meritorious and concludes that plaintiff's action against these defendants was not refiled within the 6-month savings provision of K.S.A. § 60-518.

Plaintiff, however, presents what the court construes as two separate arguments based upon the federal procedural statutes. Rule 15(c) of the Federal Rules of Civil Procedure provides in relevant part:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) 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.

Plaintiff submits that his second amended complaint naming SBF and Ganzer relates to the same transaction as set forth in the original complaint and that these two defendants "have at all times had notice of the institution of the pending action." Doc. 10, at 3.

Before an amended petition may "relate back" to the original petition, all the requirements of Fed.R.Civ.P. 15(c) must be met. Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986); Watson v. Unipress, Inc., 733 F.2d 1386, 1389-90 (10th Cir.1984).

(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; (4) the second and third requirements must have been fulfilled within their prescribed limitations period.

Schiavone, 477 U.S. at 29, 106 S.Ct. at 2384.

Defendant argues that plaintiff's second amended petition does not relate back to the original petition because plaintiff made no "mistake" concerning identity within the statutory period. Under the third requirement of the relation back provision of Rule 15(c), the actual or constructive knowledge of the party whom plaintiff seeks to add must be the knowledge that the failure to name that party was due to a mistake in identity. Miller v. Calvin, 647 F.Supp. 199, 202 (D.Colo.1985); Keller v. United States, 667 F.Supp. 1351, 1357-58 (S.D.Cal.1987). "This requirement ensures that the defendant to be added knew or should have known all along that joinder was a possibility." E.I. duPont de Nemours & Co. v. Phillips Petroleum Co., 621 F.Supp. 310, 314 (D.Del.1985). However, in the absence of a mistake by plaintiff as to the identity of the proper defendants, it is irrelevant whether the defendant had actual or constructive notice that suit could be filed against him. Bruce v. Smith, 581 F.Supp. 902, 906 (W.D.Va.1984). Thus, where the plaintiff knows the identity of the proper parties within the statutory period, the plaintiff's failure to name these parties represents only a tactical mistake, and there is no mistake in identity of which the defendant might have knowledge. Miller, 647 F.Supp. at 202. In determining whether plaintiff's mistake was merely tactical or a true mistake in identity, the court may consider whether the mistake was due to plaintiff's excusable neglect. See Unicore, Inc. v. Thurman, 97 F.R.D. 1, 6 (W.D.N.Y.1982); Upshaw v. Equitable Life Assurance Soc'y, 85 F.R.D. 674, 678 (E.D. Ark.1980); see also 6A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1498, at 142-43 (2d ed. 1990) (plaintiff's inexcusable neglect relates to trial court's discretion under Rule 15(a)).

The court finds that plaintiff has failed to satisfy the third element of Rule 15(c). Plaintiff obviously knew of the identity of SBF and Ganzer within the period of the Kansas limitation statute. Cf. Anderson v. Deere & Co., 852 F.2d 1244, 1248 (10th Cir.1988) (court may not consider subsequent dilatory behavior in failing to file where plaintiff had no knowledge of defendant's identity within statutory period). After these two defendants were originally dismissed for lack of personal jurisdiction in Illinois, it was incumbent upon plaintiff to refile within the 6-month savings period provided by K.S.A. § 60-518. Plaintiff not only failed to do so, but also waited 6 months after the case was transferred to this District before renaming these defendants by amended petition. Defendant SBF had been dismissed almost 17 months, and defendant Ganzer 8 months, before plaintiff decided to refile against them in Kansas. See Upshaw, 85 F.R.D. at 678 (relation-back denied where plaintiff had actual knowledge of name of potential defendant well within period of limitation, yet waited two years). Under these circumstances, defendants were entitled to assume that plaintiff had made a...