State v. Richardson, No. S0979-03 Cncv (Katz, J., Apr. 1, 2004)

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STATE OF VERMONT
Chittenden County, ss.:




STATE OF VERMONT

v.

RICHARDSON




                                  ENTRY



       Parties may be added through amended pleadings under V.R.C.P.
15. The grounds for a Rule 15 party addition are limited to where the
claims against the new party arise out of the same incident or conduct as the
original pleadings. The added party must also have “received such notice
of the institution of the action that [he] will not be prejudiced in
maintaining a defense on the merits.” Rule 15(c)(3)(A). This would appear
to be the key issue in the present case. The second criteria is that the added
party must also have actual or constructive notice that “but for” a mistake
concerning party identity, he would have been a defendant from the start.
Rule 15(c)(3)(B).

        Rule 15 is to be interpreted liberally and can suspend the normal
procedures of a civil action including: statutes of limitation, service of
process, and discovery. In fact the rule was amended in 1995 just to
reverse the unforgiving holding in Schiavone v. Fortune, 

(1986), which rejected an amended pleadings because it gave notice to an
added defendant after the expiration of time. From the facts of the present
case, the petitioner easily satisfies the element of constructive notice.
Federal courts have found such notice to come from any number of sources
including informal awareness of the lawsuit. Swartzwalder v. Hamilton, 

(D.C. Pa. 1972) (allowing amendment to name actual owner of
car where he had not been named but had been at the underlying accident).
Important to this conclusion are the facts of this case which include “a
substantial identity of interest between the originally named and the added
party, the parties having the same agents or attorneys, and the parties
having the same address.” Wong v. Calvin, 

, 150 (D.C. Fla.
1980).

      The more serious concern here is the threat of prejudice to the
defendant from having to defend against charges halfway through a trial.

       Important considerations are whether the original pleading
       was likely to give fair notice to the added party that a claim
       existed against her for the occurrence described in the
       complaint and whether the added defendant suffers any
       prejudice other than having to defend a lawsuit which she
       hoped was time barred.

–50. Adding Bruce Richardson would not prohibit
him from making an effective defense. The videotaped inspection
presented thus far shows Bruce Richardson to have been working with his
wife to protect their interests from the state’s enforcement efforts. Given
that the parties have a substantial identity of interest and would be offering
the same defense, which the current defendant has done more than
adequately, it would seem that there is room to allow the amendment under
the liberal standard. The amendment seems to be merely an
acknowledgment of the parties’ situation and the husband’s ownership
stake and control, and thus his constructive notice and interest in the
outcome of this trial.

       The State’s motion to amend is granted.

       Dated at Burlington, Vermont________________, 20_______.




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                                           Judge