JOHN A. WOODCOCK, JR., Chief Judge.
A recreational boat manufacturer moves for judgment on the pleadings, claiming a personal injury Plaintiff's causes of action are time-barred. The Court denies the motion because in response, the Plaintiff presented sufficient contested facts to preclude judgment. Further, if the contested facts are viewed in the light most favorable to the Plaintiff, the Defendant received sufficient notice of the action to allow the Plaintiff's amended complaint to relate
James Hinton filed a complaint in Maine Superior Court, Waldo County, on July 18, 2003 involving an accident that took place on September 10, 2000. Aff. of Phillip S. Bixby at Attach. 1 (Docket #6), State Ct. R. The Complaint named as defendants Christopher Sprague of Augusta, Maine, and three Jane Does: a boat ladder manufacturer, a water-craft manufacturer, and a water-craft seller. Notice of Removal at Attach. 10 (Docket # 1), Initial Compl. ¶¶ 2-5. On September 9, 2003, Mr. Hinton filed a First Amended Complaint, naming as defendants Four Winns, Inc.; OMC, Inc.; and, Four Winns Boats, L.L.C., among others. Aff. Of Phillip S. Bixby at Attach. 5; First Am. Compl. ¶¶ 2-4. On October 15, 2003, Mr. Hinton dismissed his claims against several defendants, including Four Winns Boats, L.L.C. State. Ct. R. at 3-5. In the next several months, Mr. Hinton twice requested enlargements of time to file service of process, citing his inability after a good faith effort to serve a summons and complaint upon OMC, Inc. Aff. Of Phillip S. Bixby at Attach. 12, Pl.'s Mot. for Extension of Time to File Return of Service; Aff. Of Phillip S. Bixby at Attach. 14, Pl.'s Second Mot. for Extension of Time to File Return of Service. On December 18, 2003 and February 23, 2004, the Maine Superior Court granted the motions, ultimately giving Mr. Hinton until April 8, 2004 to file return of service on OMC, Inc. Aff. Of Phillip S. Bixby at Attach. 13, First Order on Mot. for Extension of Time to File Return of Service; Aff. Of Phillip S. Bixby at Attach. 16, Second Order on Mot. for Extension of Time to File Return of Service. According to the State Court Record, on March 12, 2004, Mr. Hinton served Outboard Marine Corporation (Outboard Marine) with a civil summons by certified mail. State Court Record at 3.
On May 3, 2004, Mr. Hinton requested an enlargement of time to file service of process on Four Winns, Inc. Pl.'s Mot. for Extension of Time to Serve Party Def. Four Winns, Inc. Attach 18 (Docket #6). From that date, until February 4, 2009, the State Court Record is sparse and unclear. See State Ct. R. at 3-5. It appears that the Maine Superior Court granted Mr. Hinton's request for an enlargement of time to file service of process on Four Winns, Inc. on August 3, 2004, but dismissed the action against Four Winns, Inc. on August 16, 2004.
On October 9, 2009, the Maine Superior Court granted Mr. Hinton's motion to file a Third Amended Complaint, which added OMC Recreational Boat Group, Inc. as a defendant and asserted that "Outboard Marine Corporation and/or OMC Recreational Boat Group, Inc. were engaged in the manufacture and marketing of Four Winns brand boats." Aff. Of Phillip S. Bixby at Attach. 41, Third Am. Compl.; Aff. of Phillip S. Bixby at Attach. 49, Order Granting Pl.'s Mot. for Leave to Amend Compl.
On October 30, 2009, OMC Recreational Boat Group Inc. removed the action to this Court. Notice of Removal (Docket # 1). On July 23, 2010, Outboard Marine filed a Motion for Judgment on the Pleadings. Mot. for J. on Pleadings (Docket # 26) at 11 (Def.'s Mot.). On August 11, 2010, Mr. Hinton filed a Response. Pl.'s Resp. to Def.'s Mot. for J. on the Pleadings (Docket #28) (Pl.'s Resp.). On August 25, 2010, Outboard Marine filed a Reply. Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for J. on the Pleadings (Docket #29) (Def.'s Reply). On October 8, 2010, Mr. Hinton filed a sur-reply. Pl.'s Surreply in Resp. to Def.'s Mot. for J. on the Pleadings (Docket #34) (Pl.'s Sur-reply). Oral argument was held on December 20, 2010.
Outboard Marine moves for judgment on the pleadings under Rule 12(c) on the grounds that the statute of limitations has run on each of Mr. Hinton's claims. FED. R.CIV.P. 12(c). Outboard Marine argues that the first and third counts in the Third Amended Complaint are subject to a three year statute of limitations and the second count is subject to a six year statute of limitations. Def.'s Mot. at 5.
Turning to the three-year statute of limitations, Count I alleges strict liability and Count III alleges negligence. According to Outboard Marine, both counts "are subject to the three year maritime statute of limitations for personal injury arising from a maritime tort under [46] U.S.C. § 30106."
Outboard Marine quotes § 30106: "[e]xcept as otherwise provided by law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose." Id. at 6. Outboard Marine asserts that the cause of action accrued on September 10, 2000, so the three year statute of limitations on Counts I and III ran on September 10, 2003. Outboard Marine says that Mr. Hinton did not assert a cause of action against it until January 30, 2009, when it moved to amend the complaint to add Outboard Marine as a defendant. Id. at 2-3. Outboard Marine thus contends that Mr. Hinton's strict liability and negligence claims have been long since barred by the three-year statute of limitations. Id. at 5-7.
Count II of the Third Amended Complaint asserts a claim for breach of implied warranty of merchantability. Outboard Marine asserts that this cause of action is covered by Maine's Uniform Commercial Code. Specifically, it says that 11 M.R.S. § 2-725(2) supplies the limitation period for a claim for breach of implied warranty of merchantability by incorporating 14 M.R.S. § 752. See id. at 7. Outboard Marine states that "[a]ll civil actions shall be commenced within 6 years after the cause of action accrues and not afterwards, except actions on a judgment or decree of any court of record of the United States, or of any state, or of a justice of the peace in this State, and except as otherwise specifically provided." Id. (citing 14 M.R.S. § 752). Outboard Marine argues that the statute of limitations ran on Count II of Mr. Hinton's Third Amended Complaint on September 10, 2006 and that since Mr. Hinton did not assert a claim against Outboard Marine until January 30, 2009, his claim against Outboard Marine is barred by the six year statute of limitations.
Finally, Outboard Marine argues that Mr. Hinton is time-barred under another statutory provision. After the cause of action accrued, Outboard Marine filed for bankruptcy and during the bankruptcy, Outboard Marine says, the statute of limitations lapsed. Because Mr. Hinton did not file his claim within the extended limitations period provided by 11 U.S.C. § 108(c)(2) for defendants in bankruptcy proceedings. Outboard Marine acknowledges that its bankruptcy filing triggered the automatic stay provision of the Bankruptcy Code, and it concedes that the automatic stay prevented Mr. Hinton from commencing an action against Outboard Marine without first obtaining relief from the stay in the bankruptcy court pursuant to 11 U.S.C. § 108(c).
According to Outboard Marine, "if the statute of limitations governing a plaintiff's claim expires against a debtor during the pendency of the stay, the plaintiff has 30 days to re-file the action from the time she receives notice that the Bankruptcy Court has ordered the stay lifted." Def.'s Mot. at 9. Outboard Marine cites Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1073 (2nd Cir.1993), which affirmed a district court's granting of summary judgment against a plaintiff who filed a personal injury tort
Outboard Marine argues that 11 U.S.C. § 108(c) does not save Mr. Hinton's claim because he failed to file his Third Amended Complaint within 30 days of the lifting of the automatic stay. The Bankruptcy Court granted relief from the automatic stay on June 19, 2008.
In response, Mr. Hinton asserted additional facts relating to the procedural history of this case that are relevant to his legal arguments. First, he described the difficulty he had finding the proper defendants. Pl.'s Resp. at 1-3. He noted that the initial Complaint named three Jane Doe defendants because he had not ascertained the proper defendants. Id. at 1. After filing his First Amended Complaint, which named OMC, Inc. and others as defendants, he "obtained service on OMC, Inc.'s registered agent in Delaware on September 12, 2003." Id. at 1-2. However, the registered agent explained that there were several entities whose names began with OMC, so Mr. Hinton sought and received extensions of time to effect service on OMC and he was given until April 8, 2004. Id. at 2. Mr. Hinton argues that on March 8, 2004 he "effected service by certified mail on `Robert S. Romano, Secretary, Outboard Marine Corp., 100 Sea-Horse Drive, Waukegan, IO (sic) 60085.'" Id. at 2 (alteration in original). "The return receipt for that certified mail was signed by Terry Ellis as received on March 19, 2004." Id. (citing Ex. D (Docket # 28)).
Mr. Hinton notes that he similarly moved for an extension of time to serve Four Winns, Inc. Id. While acknowledging that the Maine Superior Court does not appear to have acted on the motion, Mr. Hinton argues that he "effected service by certified mail on `T.J. Taylor, Vice-President, Four Winns, Inc., 100 Sea-Horse Drive, Waukegan, IL 60085.'" Id. He attaches the return receipt for that certified mail, which says it was signed by Terry Ellis as received on June 18, 2004." Id. (citing Ex. E. (Docket #28)).
Mr. Hinton says that on July 24, 2004, he received an email from Attorney Kathleen Klaus of Shaw, Gussis, Fishman, Glantz, Wolfson & Towbin, LLC stating:
Id. at 3 (citing Id. at Ex. F). "In response to that email, Mr. Hinton's counsel began exploring the possibility of insurance coverage for OMC and/or Four Winns." Id. Upon discovering an insurance policy issued to "Outboard Marine Corporation," Mr. Hinton says he sought to have Outboard Marine Corporation's automatic stay lifted to pursue his claim to the extent of insurance coverage. After the stay was lifted, Mr. Hinton notes that he moved to amend his complaint in January 2009 merely "to correct a misnomer by naming Outboard Marine Corporation in place of the previously named defendant, OMC, Inc." Id. (citing State. Ct. R. at Attach 24, Pl.'s Motion for Leave to Am. Compl. at 1).
Mr. Hinton argues that Rule 15(c)(1) saves his cause of action because his Second Amended Complaint relates back to his First Amended Complaint. Id. at 3-4 (citing FED.R.CIV.P. 15(c)(1)). Citing Rule 15, Mr. Hinton argues that his First Amended Complaint provided Outboard Marine with sufficient notice of the cause of action that his Second Amended Complaint relates back to the First Amended Complaint. Pl.'s Resp. at 4-5. He contends that because the First Amended Complaint was filed within the three year statute of limitations, the Second Amended Complaint is equally timely. Id.
Mr. Hinton provides additional facts to support his assertion that Rule 15's notice requirement is met. Noting that the First Amended Complaint naming OMC, Inc. as a defendant was filed on September 9, 2003, he "does not know whether Outboard Marine Corporation received notice via the service on the Delaware registered agent on September 12, 2003" but the deadline for service "was extended by the court for good cause shown, to April 8, 2004." Pl.'s Resp. at 4-5. He asserts that Terry Ellis's March 19, 2004 return receipt for the certified mail sent to "Robert S. Romano, Secretary, Outboard Marine Corp." demonstrates Outboard Marine had notice before April 8, 2004. Furthermore, he notes that "[b]y July 2004, counsel for Outboard Marine Corporation's bankruptcy trustee acknowledged receipt of notice of the claim against OMC, Inc. and Four Winns, Inc." Id. at 5. Mr. Hinton argues that, because Outboard Marine had notice of the action within the period required by Rule 15, the Second Amended Complaint relates back to the date of the First Amended Complaint.
Outboard Marine's Reply to Mr. Hinton's Response addresses "only those assertions by Plaintiff pertinent to Plaintiff's sole argument that `Outboard Marine Corporation had notice of the suit and the fact that, but for a mistake concerning the correct corporate entity; the suit would have been brought against it.'" Def.'s Reply at 2.
Outboard Marine argues that Maine, not federal, relation back doctrine should apply. It notes that Maine Rule 15(c) provides Maine's relation back doctrine and says that an amended pleading joining a new party relates back to the date of the original pleading when three conditions are met:
Id. at 3 (citing Batchelder v. Realty Resources Hospitality-Auburn LLC, No. Civ.A. CV-03-232, 2004 WL 1599319, at *2 (Me.Super. June 24, 2004)). Outboard Marine argues that it did not, within the time prescribed by Rule 3, receive actual notice of the institution of the action; it further contends that it did not know nor should it have known that but for a mistake concerning the identity of the proper party, the action would have been brought against it.
Outboard Marine disputes Mr. Hinton's assertions that it received notice. It says OMC, Inc. never existed as an entity and could not have had a registered agent to receive service on September 12, 2003. It cites Plaintiff's own Exhibit D, which states that "two prior attempts at service upon OMC's registered agent in Delaware failed, as process was not accepted by agent." Id. at 6 (citing Id. at Ex. D). Furthermore, Outboard Marine argues that even if OMC, Inc. existed as an alter ego, Outboard Marine had "long since filed for Chapter 7 bankruptcy, eliminating any such agency or any such authority to accept service upon it due to the automatic stay provision of the bankruptcy code." Id.
Outboard Marine denies that it received notice by certified mail on March 19, 2004, asserting that, by December 10, 2002, Outboard Marine had abandoned the property to which the certified mail was purportedly addressed. Id. Outboard Marine contends that service was ineffective under Maine law and could not have provided the required notice. Id. at 6 n. 6. It argues that, under the Maine Rules of Civil Procedure, personal service outside the state must be made "by any person authorized to serve civil process by the laws of the place of service"—in this case, Illinois, id. (citing ME. R. CIV. P. 4(e)), and that service by certified mail was ineffective because service was not made "by a sheriff, . . . or a coroner of some county of the State" of Illinois, pursuant to Illinois law. Id. (citing 735 ILCS 5/2-202(a) (2003)).
Outboard Marine also contests Mr. Hinton's assertion that the July 26, 2004 email from Outboard Marine's bankruptcy trustee is evidence that Outboard Marine had notice of the claim. Id. at 7. Outboard Marine observes that the email referred to a subpoena, not a summons and complaint. Id. at 7. Further, "assuming this subpoena. . . can be converted into a summons and complaint," they note that "the earliest date [Mr. Hinton] could use to show notice is June 10, 2004, the date the clerk issued the summons"—two months after the April 8, 2004, deadline. Id. at 7.
Finally, Outboard Marine argues that it would be prejudiced if required to maintain a defense on the merits. Observing
Mr. Hinton begins his reply to Outboard Marine's response by arguing which relation back law should apply. He contends that Federal Rule 15 provides that "an amendment to a pleading relates back to the date of the original pleading `when the law that provides the applicable statute of limitations allows relation back.'" Pl.'s Sur-reply at 1 (quoting FED.R.CIV.P. 15(c)(1)). "Here the laws that provide the applicable limitations are both federal maritime laws and state laws." Id. Furthermore, Mr. Hinton argues that Maine and federal relation back rules are nearly identical and render the same outcome. Id.
Mr. Hinton then argues that notice was effective under either relation back rule. He contends that both rules "require notice to the prospective defendant within the time for service of the summons and complaint, not within the statute of limitations," and that the rules "include[] not only the time for service specified in the Rules but also any additional time resulting from any extensions ordered by the court." Id. From there he reasons that April 8, 2004, "the time for summons and complaint, as extended by orders of the Superior Court," is the operative date by which Outboard Marine must have received notice. Id.
Mr. Hinton asserts that Outboard Marine had notice by April 8, 2004.
Finally, Mr. Hinton contends that the Court "need only extend its inquiry to the pleadings and any reasonable inferences that can be drawn from them." Id. at 3. He asserts that all factual inferences that can be drawn from the pleadings should be drawn in favor of Mr. Hinton, and "[i]f there are any factual questions as to a statute of limitations defense, those factual questions must be resolved by a jury." Id. (emphasis in original) (citing Townsend v. Chute Chemical Co., 691 A.2d 199, 202 (Me.1997)). Mr. Hinton observes that Outboard Marine failed to provide even an affidavit to support its assertion that it did not receive notice before April 8, 2004, and that it is relying instead on "conclusory speculation." Id. at 3-4.
The parties resolved several issues at oral argument. First, the parties agreed that for purposes of this motion, any distinctions between the federal and Maine relation back rules are irrelevant. Second, they agreed that 11 U.S.C. § 108(c) is not germane because the merits of Outboard Marine's motion depend on whether the Second Amended Complaint relates back to the First Amended Complaint, which was filed within the original limitations period. If Mr. Hinton timely filed the Second Amended Complaint, § 108's 30-day extension in June and July 2008 is superfluous. Third, they agreed that because the parties' arguments on this motion for judgment on the pleadings presented facts outside of the pleadings, the motion must be treated as one for summary judgment pursuant to Rule 12(d). FED.R.CIV.P. 12(d). Fourth, Outboard Marine conceded that the Court must view the disputed facts in the light most favorable to Mr. Hinton for purposes of this motion.
Outboard Marine expanded upon its argument that it did not have sufficient notice of the action by April 8, 2004. When questioned by the Court what exactly it meant by its assertion it had abandoned the Illinois address in December, 2002, Outboard Marine replied that the company had actually and completely abandoned the property, such that it had no agents on the premises. This led the Court to ask how the attorney for Outboard Marine's bankruptcy trustee could have received the June 18, 2004 subpoena sent to that address. Outboard Marine replied that it must have been a matter of mail forwarding.
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." FED.R.CIV.P. 12(c). "If, on motion under Rule . . . 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." FED.R.CIV.P. 12(d). The parties' briefs and attachments proceeded to present facts outside of the pleadings.
Ordinarily, the presence of facts outside of the pleadings transforms a motion for judgment on the pleadings to a motion for summary judgment. FED.R.CIV.P. 12(d) (stating that "[i]f, on a motion under Rule. . . 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56"). The parties, however, did not follow Rule 12(d) and did not present statements of material fact in accordance with the District's Local Rule 56. D. ME. LOC. R. 56. The presence of matters outside the pleadings
Summary judgment is properly granted "if the record, viewed in the light most favorable to the nonmoving party, discloses no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Penn-America Ins. Co. v. Lavigne, 617 F.3d 82, 84 (1st Cir.2010). For summary judgment purposes, "`genuine' means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party, and a `material fact' is one which might affect the outcome of the suit under the governing law." Buchanan v. Maine, 469 F.3d 158, 166 (1st Cir.2006) (quoting Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215, 218-19 (1st Cir.2004)) (internal quotation marks omitted). "Neither conclusory allegations [nor] improbable inferences are sufficient to defeat summary judgment." Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir.2002) (citation and internal quotation marks omitted).
For purposes of this motion, the Maine and federal relation back standards are identical.
The federal rule requires notice within the period provided by Rule 4(m):
FED.R.CIV.P. 4(m). Maine requires notice within the period provided by Maine Rule 3:
ME. R. CIV. P. 3. The only difference between the federal and state rules is that the former provides for service within 120 days and the latter provides for service within 90 days. As the parties agreed at oral argument, this distinction is without a difference in this case.
Both rules contemplate that courts may extend the relevant time periods. Maine Rule 6(b) allows a court to enlarge any time period specified by the Maine Rules for cause shown "if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order." ME. R. CIV. P. 6(b).
Furthermore, both rules include such enlargements in the service period for relation back purposes. See FED.R.CIV.P. 15(c) advisory committee's note (1991) (explaining that the 1991 amendment to 15(c)(3) "allows not only the 120 days specified in that rule, but also any additional time resulting from any extension ordered by the court pursuant to that rule . . .") and ME. R. CIV. P. 15(c) advisory committee's note (1993) (explaining that "Rule 15(c) is amended to adopt a 1991 amendment of Federal Rule 15(c) for the purpose of maintaining Maine's relation-back provisions in conformity with the federal rule"). In other words, notice may be received more than 90 or 120 days after the filing of the complaint if the court granted an extension of time for service. Under either rule, the applicable period in which Outboard Marine must have received notice was not the 90 or 120 days after the First Amended Complaint was filed, but rather
The parties do not dispute that the cause of action accrued on September 10, 2000. Nor do they dispute that the three year statute of limitations for maritime actions applies to Mr. Hinton's negligence and strict liability claims and the six year statute of limitations under Maine's Uniform Commercial Code applies to Mr. Hinton's breach of the implied warranty of merchantability claim. The First Amended Complaint, naming OMC, Inc. as a defendant, was filed on September 9, 2003, within the limitations period for all claims. Therefore, if the Second Amended Complaint—the first to name Outboard Marine as a defendant—relates back to the First Amended Complaint under Rule 15(c), Mr. Hinton's claims are not time-barred.
To determine whether Outboard Marine received notice, the Court focuses not on whether Outboard Marine was served, but on whether it had actual or constructive notice. Rule 15(c)'s notice provision does not require that the plaintiff serve an amended complaint within the service period; it requires only that the "defendant has received sufficient `notice of the action' within the [service] period that he will not be prejudiced in defending the case on the merits. . . . `[T]he notice need not be formal.'"
Because the parties do not dispute that the Second Amended Complaint asserts a claim or defense that arose out of the occurrence set out in the original pleading, resolution of this dispute turns on whether, by April 8, 2004, Outboard Marine 1) had such notice of the action that it will not be prejudiced in defending on the merits; and, 2) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity. In making this determination, the Court views the facts in the light most favorable to Mr. Hinton as the non-moving party. See Penn-America, 617 F.3d at 84.
Mr. Hinton provides evidence of two occasions before April 8, 2004 on which Outboard Marine received notice of the action.
First, Mr. Hinton provides the affidavit of Deputy Sheriff Paul Paradee of Newcastle County, Delaware, confirming that he personally served the representative agent of OMC, Inc. on September 12, 2003. Deputy Paradee averred that he understood the person he served to be the same person named in the summons and amended complaint. Pl.'s Resp. at Ex. A, Affidavit of Service. Mr. Hinton's evidence that Outboard Marine has done business as OMC, Inc supports the reasonableness of this understanding. See Pl.'s Resp. at 1 (citing Lady v. Neal Glaser Marine, Inc., 228 F.3d 598 (5th Cir.2000)).
Outboard Marine's response focuses on the formal deficiency of Deputy Paradee's service but fails to adequately rebut notice. Def.'s Reply at 5-6. Mr. Hinton's own exhibits reflect that Outboard Marine did not accept service at that time, Pl.'s Resp. at Ex. D, but he argues that that deficiency alone does not defeat notice and that Outboard Marine has not offered so much
Mr. Hinton's second proffer of Outboard Marine's notice is the March 19, 2004 summons he sent by certified mail to Outboard Marine. Mr. Hinton provides copies of both the summons addressed to Outboard Marine Corporation and the return receipt signed by Terry Ellis. Pl.'s Resp. at Ex. D. Outboard Marine responds that it had abandoned the address by that date. Def.'s Reply at 6. Its sole support for this assertion is an order from the bankruptcy court approving an abandonment of the property. Id. at Ex. B. But the order does not refer to the Illinois address to which the certified mail was addressed; it merely approves an abandonment and transfer of certain assets. Id. Moreover, it does not necessarily follow from the bankruptcy court's approval of abandonment that Outboard Marine had actually abandoned the property by March 19, 2004. Outboard Marine, however, asserted at oral argument that no agents for Outboard Marine remained on the premises after December, 2002. The competing assertions and scant record leave the Court unable to determine who Terry Ellis is and whether the property was actually abandoned.
More damaging to Outboard Marine's claim that it lacked notice is Ms. Klaus's acknowledgment that Outboard Marine received the June, 2004 certified mailing sent to that address. Outboard Marine explained at oral argument that the mailing was probably forwarded from the abandoned property. If so, this does not explain why the June, 2004 subpoena would have been forwarded but not the March, 2004 summons, both of which were sent to the same address.
Because the Court is required to view the facts in the light most favorable to Mr. Hinton for purposes of this motion, it accepts as true Mr. Hinton's factual assertion that Outboard Marine received notice of the action prior to April 8, 2004. That the parties present a genuine dispute as to whether Outboard Marine had notice prior to that date is sufficient for the Court to conclude for purposes of this motion that it did.
For the Second Amended Complaint to relate back, the plaintiff must prove that he made an error concerning the identity of the proper party. The amendment will not relate back when "there is a lack of knowledge of the proper party." Wilson v. U.S. Government, 23 F.3d 559, 563 (1st Cir.1994) (citation omitted). However, "[p]roperly construed, the rule encompasses both mistakes that were easily avoidable and those that were serendipitous.... The drafters believed that such errors would trigger Rule 15(c)(3) notwithstanding that reasonable diligence almost always would prevent them from occurring." Leonard v. Parry, 219 F.3d 25, 29 (1st Cir.2000) (allowing relation back when the plaintiff intended to sue driver of a vehicle but mistakenly named the passenger as defendant in the initial complaint).
Mr. Hinton's naming OMC, Inc. as a defendant in the First Amended Complaint was an error concerning the identity of the proper party. The Second Amended Complaint could not relate back to the Initial Complaint, in which Mr. Hinton named Jane Doe defendants, because Mr. Hinton did not mistake the entity's identity, he did not know the proper party at all. See Wilson, 23 F.3d at 563. Nevertheless, Mr. Hinton's First Amended Complaint, also filed before the running of the limitations period, named OMC, Inc. First Am.
Having established that Mr. Hinton made a mistake concerning the proper party's identity, the Court finds that Outboard Marine either knew or should have known that the action would have been brought against it but for the mistake. See FED.R.CIV.P. 15(c)(1)(C)(ii). Whether Outboard Marine received notice of the action on September 12, 2003 or March 19, 2004, such notice would have made it obvious that Outboard Marine was an intended party. The Complaint described OMC, Inc. as the manufacturer and marketer of Four Winns brand boats, which Outboard Marine was. Furthermore, the March 2004 summons properly identified Outboard Marine in the heading. Finally, the initials OMC correspond to the name Outboard Marine Corporation.
Because the elements of Rule 15(c) are met, the Second Amended Complaint relates back to the First Amended Complaint, which was filed before the limitations period ran on Mr. Hinton's claims.
The Court DENIES Outboard Marine Corporation's Motion for Judgment on the Pleadings (Docket # 26).
SO ORDERED.
The Court does not address this issue. Mr. Hinton did not raise this argument until his Sur-reply, and the briefs do not provide enough information regarding Outboard Marine's business in Maine or its insolvency for the Court to properly consider this issue.
ME. R. CIV. P. 6(b).
