Yorden v. Flaste

• Decision Date: 11 April 1974
• Docket Number: Civ. A. No. 3925.
• Citation: 374 F. Supp. 516
• Parties: Doris YORDEN, Administratrix of the Estate of Samuel Reed, Deceased, and Miriam Reed, in her own right, Plaintiffs, v. Irving FLASTE, Defendant.
• Court: U.S. District Court — District of Delaware

374 F. Supp. 516

Doris YORDEN, Administratrix of the Estate of Samuel Reed, Deceased, and Miriam Reed, in her own right, Plaintiffs, v. Irving FLASTE, Defendant.

Civ. A. No. 3925.

United States District Court, D. Delaware.

April 11, 1974.

John G. Siegle, Siegle, Scallan, March & Berman, Media, Pa., and Garry G. Greenstein, Knecht, Greenstein & Berkowitz, Wilmington, Del., for plaintiffs.

Roger P. Sanders, Prickett, Ward, Burt & Sanders, Wilmington, Del., for defendant.

OPINION

LAYTON, District Judge.

This case raises questions which go to the heart of the philosophy behind the Federal Rules of Civil Procedure and tests the concept of notice pleading and the principle that the purpose of pleading is to facilitate a proper decision on the merits.

Doris Yorden, Administratrix of the Estate of Samuel Reed, and Miriam Reed, his alleged common-law wife, brought this action against Irving Flaste alleging that on November 13, 1968, while negligently operating his motor vehicle, he struck and severely injured Samuel Reed. They further allege that Mr. Reed died on September 19, 1969, as a result of those injuries. Jurisdiction is based on diversity of citizenship.

The Complaint sets forth two causes of action: a survival action seeking damages suffered by the decedent prior to his death; and a wrongful death action seeking damages suffered by his widow. Plaintiffs mistakenly rely on the Delaware Wrongful Death Statute (10 Del.C. § 3704) to support both causes of action.

Following an initial period of discovery, Defendant moved for summary judgment contending that, under 10 Del.C. § 3704(b),¹ the decedent's widow is the proper party to bring a wrongful death action and that Samuel Reed's widow is not Miriam Reed, as alleged, but Mayrene Reed, whom the Decedent had legally married in April, 1924. In an opinion filed June 11, 1973, the Court declined to grant Defendant's motion on the ground that Mayrene Reed was presumably still married to Samuel Reed and that, as she lived nearby, her deposition should be taken and all other evidence bearing on her marital status gathered in order to determine whether she was the legal widow of decedent.

The parties have pursued this matter and the Defendant has renewed his motion. Plaintiffs, rather than contest the motion, have conceded the underlying facts and seek instead to amend their complaint² to substitute as plaintiff Allan Getson, Guardian of Mayrene Reed.³

Plaintiffs' motion is ill-advised. While Allan Getson, Guardian of Mayrene Reed, may be the proper person to maintain the wrongful death action, Doris Yorden, the Executrix, is the proper person to bring the survival action.

Mr. Reed's cause of action survives his death under 10 Del.C. § 3701⁴ and passes to his administratrix, 10 Del.C. § 3707.⁵ The fact that the Plaintiffs mistakenly relied on the wrongful death statute to support both actions makes no difference. Rule 54(c) states that, except for a judgment by default, a party is to be granted any relief to which he is entitled even though he has not demanded it.

Doris Yorden's motion to drop herself as plaintiff in the survival action will be denied. See, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

We now turn to Miriam Reed's motion to withdraw and have Allan Getson, Guardian of Mayrene Reed, joined as the proper party to bring the wrongful death action. While the Defendant agrees that Mr. Getson is the proper party to bring the action, he opposes the substitution and contends that it sets up a new claim which is barred by the relevant 2 year statute of limitations. 10 Del.C. § 8106A.⁶ The question presented is whether the motion should be granted and allowed to relate back pursuant to Rule 15(c).

Rule 15(c) deals with the relation back of amendments, including those changing parties.⁷ It should be read together with the general provision in Rule 15(a) that leave to amend shall be freely given when justice so requires. Essentially, it provides that whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, the amendment will relate back to the date of the original pleading.⁸ The rule was amended in 1966 to indicate more clearly when an amendment changing a party should be allowed to relate back. While the new portion refers to an amendment changing the party against whom a claim is asserted, the Advisory Committee Notes make it clear that it is equally applicable to an amendment changing a plaintiff.⁹

Notwithstanding the changing party language of the rule and the accompanying Advisory Committee Note, some of the cases contain general language to the effect that relation back will not apply to an amendment that substitutes or adds a new party for those named in the earlier timely pleadings. See, e. g., Longbottom v. Swaby, 397 F.2d 45 (5th Cir. 1968) and Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479 (6th Cir. 1973). Such amendment is said to assert a new cause of action and if allowed to relate back would defeat the purpose of the statute of limitations.¹⁰ See, Moore, Federal Practice 15.15 4.-1 and cases cited therein.

However, there have developed a number of exceptions to this general rule. In one set of exceptions the parties before the court remain the same and the amendment merely changes the capacity in which they sue or corrects a misnomer in the complaint.¹¹ In another group of cases, parties are allowed to substitute other parties where: (1) the moving party can show an identity of interest between the new and former party,¹² e. g. parent and subsidiary; (2) the joined defendant's bad faith conduct is held to estop his objection;¹³ and (3) the court looks upon the joinder as a correction of counsel's error.¹⁴

Those courts which accept this general rule against the joinder of new parties apply a restrictive construction of the Rule 15(c) reference to "an amendment changing" a party.¹⁵ However, the Advisory Committee Note seems to reject this restrictive construction.¹⁶ "Rule 15(c) is amplified to state more clearly when an amendment of a pleading changing the party against whom a 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.) 39 F.R.D. at 82.

The problem is the tension between the Rule 15 relation back provisions and the statute of limitations.¹⁷ As one court has recently indicated, the courts which apply the general rule against the joinder of parties often fail to deal with this tension and instead use the test as a cover for circular analysis. Williams v. United States, 405 F.2d 234 (5th Cir. 1968).

In fact, Rule 15 has been carefully drafted to defer to the policies underlying such statutes. Those statutes compel the exercise of a right of action within a reasonable time so that: (1) a defendant will have a fair opportunity to prepare an adequate defense; (2) the defendant will be protected from the insecurity generated by the fear of litigation pending in perpetuity; (3) the judicial system will be free from stale claims; and (4) the marketplace will be free from the uncertainty of long pending and unsettled claims.¹⁸ Theoretically, once the person has adequate notice that someone is attempting to set up a claim against him, the policy interests behind the statute of limitations are served and strict application of the statutory provisions is unwarranted.

Obviously, notice is the critical element in a 15(c) determination.¹⁹ In finding whether the defendant has had adequate notice, the Rule sets out a two-part test. First, does the amendment arise out of the conduct, transaction, or occurrence set forth in the original pleading? Second, has the defendant had notice that the legal claim existed and, but for mistake, would have been brought by the party sought to be joined?

The emphasis in the first part of the test is on the operational facts which give rise to the claim. In this case, both claims arise from the same set of facts and the original pleading provided the Defendant with adequate notice that someone was attempting to set up a wrongful death action based on the injuries resulting to Samuel Reed from the accident on November 13, 1968.

Next, while it it true that the Defendant may not have discovered the existence of Mayrene Reed until after the running of the limitations period,²⁰ he did know that a wrongful death action was being asserted against him. And, having received such notice within the limitations period, he can show no real prejudice in the Court's granting the motion and allowing the amendment to relate back. Indeed, Defendant has had some difficulty attempting to show any prejudice resulting from such action. He makes no allegation that he has not had an adequate opportunity to gather evidence and prepare his defense. There is no lost evidence nor any missing witness. While he argues that the measure of damages is different,²¹ he can show no real prejudice from this.²² The threshold question of liability remains the same; the burden of proof on the extent of damages is still on the Plaintiff. Finally, he contends that the prejudice in denying him the limitations defense is itself enough. As he states it, "the prejudice is obvious." And yet, by its very nature, whenever Rule 15 is used to permit an amendment to relate back, the opposing party is prejudiced. To put it bluntly, this analysis is of little help.

Here, we have on the one hand a Defendant who has had fair notice of the existence and nature of a cause of action against him and who has shown no prejudice to him other than the fact that the claim has become stale;²³ on the other hand, we have a mother and daughter who may have a valid claim against the Defendant and who, if Defendant's motion is granted, will lose their right to prosecute this claim due to delays not of their own making but to the somewhat less...