Carol Anita Ringrose and Frederick Ringrose v. Engelberg Huller Co., Inc., Sundstrand Corporation and White Consolidated, Inc.

JONES, Before MERRITT and Circuit CELEBREZZE, Judges, Senior Circuit Judge.

' MERRITT, Judge. Circuit Plaintiff-appellant Ringrose appeals the Michigan diversity personal her dismissal of the District Court on the injury Michigan three-year ground that stat- her The Dis- bars claim. ute of limitations rejected argument her that her trict Court complaint naming alleged amended succes- defendants, an corporations sor amend- expiration of the limi- ment filed after the back to the period, relates tations 15(c), under Rule filing date 15(c) provides: complaint] changing An amendment [to party against whom claim is assert- ed relates back ... within the period commencing law for provided the ac- him, tion has received such of the institution of the action that prejudiced maintaining he will not be merits, his defense on the knew or have known but for a mis- concerning proper take party, action would have been brought against him. alleges injured

Plaintiff that she her left while operating grinder hand at work a belt 2,1976. September She filed suit within period against the limitations the manufac- machine, grinding turer listed on the belt Co., Inc., Engelberg Huller on April the Wayne County Circuit Court. server process complete was unable to because, service as he wrote on process: return of his Co. out of business Engelberg Huller approximately years -possibly bought — out White Sundstrand Machine Tool so, corporate headquarters are Inc. —If Rockford Illinois. Contacted Mr. tion of Carl the statute of limitations.” Newman —White Sun.... N.W.2d at 383. parties, Two new Thus the Michigan rule and the federal Industries, and White Consolidated were regarding rule are the same the substitu- added an amended filed Sep- tion we parties, of new need not decide days tember five after Michigan’s the choice of discussed in question law three year statute of M.C.L.A. are, concurring opinion. therefore, We gov- 600.5805(9), expired. Plaintiff alleges erned 15(c), Rule in decid- that these two are corporations successor ing the issue and “relation-back” are re- corporations Engelberg of Huller Co. 15(c) quired light Rule interpret of the These the defendants removed action to the facts of this case. Detroit, federal district court in which dis- The record is unclear whether the missed the action as barred the statute process server who made the return con of limitations. tacted either Corporation Sundstrand or the application When of state toll White Consolidated prior Industries ing process provisions and service of would expiration of the of limitations so as affect the running of the statute of limita to put either or both on notice that a prede tions and thus affect the outcome of the corporation cessor had been sued. There is court, lawsuit in state a federal court in a some indication on the return that the proc diversity action apply those same ess server contacted within the statutory state rules of decision determining period representative “Carl Newman” as whether an action is barred applica the of one or both of the defendant corpora ble state statute of limitations. Walker v. We, therefore, tions. remand the case to Armco the District Court for determination In Michigan whether either or both of the defendants rules, and also under the federal the filing prior expiration the of the Michigan of a complaint against a party stops the three-year statute of limitations “received running the of statute of limitations as to such of the institution of the action the claim against that but not as to that will prejudiced not be in maintain [it] parties. Rhodes, new Buscaino defense on merits.” the The Dis [its] (1971); Forest v. Par trict Court should determine whether either malee, Mich.App. or both corporations of the defendant are Estovez, Krontz v. 49 Mich.App. Engelberg corporations successor of Huller Michigan follows Co. or should and therefore “knew have principles the stated in Federal Rule mistake concerning known but for a that an amendment changing the party proper party, the of the whom a claim asserted relates against [it],” have been brought or back if received sufficient had actual notice within the of notice of as not preju the action so to be not be preju limitations and would defending diced in case. Forest v. Par defending the case relating diced in malee, Forest, supra. complaint amended back the time of

court, following reasoning of our deci filing of the original complaint.1 sion in Body, Marlowe v. Fisher said: “While Accordingly, judgment the above of the District federal rule would allow correction of case Court is and the remanded for reversed misnomers, it will not allow addition or reconsideration further statute of parties substitution of new after expira- limitations issue as aforesaid. concurring opinion premised 1. The simply requires on the this rule —which dismissal of days “Michigan days view affecting at least 180 allows an action served in 180 not —as period. from the date the would oth- or limitations It is a service process provision only erwise have service will be run before accom- has not plished,” extending period. but we do not interpreted see text at note read the limitations JONES, I. Judge, R. Circuit NATHANIEL concurring. Diversity Cases Consolidated Industries Appellees White Michigan, by the state courts Both (White) 118.4, and the federal Court General were added to this action and (Sundstrand) Procedure by Federal Rule Civil system, two and one-half some served with determine whether an 15(c), rules to have of limitations would the statute weeks after complaint relates back to a complaint been filed. The have run had filing. If no conflict the date district court dismissed or application resulted from applicable limita- failure to file within facts, it would be to these federal majority I with period.1 agree tions apply. one to to resolve application unnecessary remand for that we vacate and Michigan law However, does Proce- I believe 15(c), Federal Rules Civil of Rule unambiguously resolve whether circum- dure, on an addi- my I rest conclusion but present here will those majority. to ground tional not reached stances similar Rather than wrestle given advisable the recent back.2 step appears This allow relation determination under under decisions further over grant summary by filing, judg was not was 1. Since we review the an issue that been tolled below, presumed Schecter, plaintiffs’ to important. ment evidence v. See Arnold considered given plaintiffs are the benefit of days prior be true and (complaint supra filed six to the end drawn therefrom. favorable inferences to be E. Adickes v. Kress & statutory period, date of service of stated). Co., 144, 157, g., 398 U.S. diligence review the decisions Other 1598, 1608, (1970); 142 90 S.Ct. 26 L.Ed.2d discovering proper plaintiff defendant Diebold, Inc., 654, United States v. complaint relates to determine whether 655, 993, 994, (1962) (per 176 82 S.Ct. 8 L.Ed.2d Young, Charpentier v. 403 Mich. back. See curiam); Hudson, generally see v. 600 Smith 851, (1978), reversing, 83 Mich. N.W.2d 926 291 60, 993, 994, F. 2d 82 S.Ct. 8 L.Ed.2d 176 145, (1978); App. v. 322 O’Keefe 268 N.W.2d Cir. Co., 23, Mich.App. Equipment 307 106 Clark Supply (1981). Muskegon Co Cf. N.W.2d 343 adopted Michigan pleading has liberal rules . 346-47, 341, Green, 72 52 N.W.2d amendments, v. 343 Mich. holding that discretion plaintiff adding (amendment united in liberally be exercised in favor of amendments plaintiff only original will relate back denied when interest with amendments should be justice thereby. filing); Ben P. Soro would not be served Matson v. to the date of nen, 649, 658, Fyke 190, 390 Mich. & Sons v. Gunter Mich.App. 52 226 N.W.2d 57 134, Michigan (1973). 213 138 (denial motion to add after of trial party with notice Court has allowed a have run is re would statute of limitations statutory prior expiration of the a suit prejudice is versed when no ascertainable to be added to the action found). run in after the limitations had Wells v. yields authority Intensive research dis- News, 634, Inc., Detroit Mich. 104 N.W.2d 360 cussing for amendment when the standards Justice, (1960). Judge 767 Then now Chief originally is defunct and thus defendant named Court, Edwards, set forth a rationale served, suggest that and conditions not plaintiff non-party notice when notice sanctioned to diligently. Cf. Cobb v. Mid-Con- acted it received at the same time would have Corp., supra (parent- Telephone Service tinent been received had that been named in the subsidiary relationship requires par- to complaint, closely if the be added was representative is served ent’s originally related to the defendant complaint. named in the Parmalee, subsidiary); v. 60 Mich. Forest 401, (1975); App. aff’d on 231 N.W.2d 378 Wells, Following some lower courts allowed 348, grounds, other amendments, appeared relation back of require but entity may (1978) (closely related be added proper repre be served on a that notice plain- has run if of limitations after the statute company sentative be added at the misnomer; may oth- be termed a tiff’s mistake attempted upon the same time service was only proper may if a mo- er be added entities named v. Mid-Continent defendant. See Cobb period). the limitations I tion is made within 349, Telephone Corp., Mich.App. 90 Service speculate Michi- as to the result under do not Schecter, (1979); Arnold arguendo gan that rather assume Mich- law but 680, (1975); Mich.App. Ben 228 N.W.2d igan to relate the amendment would not allow singer Reid, Mich.App. 169 N.W.2d holding, back, light of our infra in Part since (1969). occurred before service Whether ques- II, procedural 15 determines that Rule run, or have it not after the would had law, Corp., I first resolve whether 446 U.S. 740 at S.Ct. applies, presuming or federal law 1978 at 64 L.Ed.2d 659 each the result under would differ. plainly If the terms of federal rule conflicting possibly Thus confronted with a aspect litiga the contested address and a federal rule procedure state rule of under the Rules Enab tion then pertaining which both set forth is all that is ling Act3 and Constitution that add or relation back of amendments Plumer, Hanna v. 380 U.S. at necessary. parties begun, once a suit I substitute 1143-44; 470-71, 85 at see Walker v. S.Ct. ques- up first take the sometimes difficult 747-48, Corp., 446 U.S. 749- Armco Steel apply. tion of which law to 1983-84 see 50 & Irrepressible Myth of Ely, The generally After Court decision in Erie, 718-24 Plumer, 87 Harv.L.Rev. Hanna U.S. Enabling under Rules Act ex The test federal courts have, rule is consistency, truly procedural. with marked whether the determined amines federal rules on relation back test is satisfied if the of The constitutional See, apply diversity amendments cases. the ambit of a constitutional rule is within e.g., Piper Davis Aircraft grant necessary Proper such as (4th Cir.), dismissed, cert. of Article E.g, I. Clause L.Ed.2d Corp., 446 100 S.Ct. at (1980); Royal Petrozzino, Indemnity v. hand, plain the other if the mean 748. On (3rd Kumar, Ingram ing of the federal rule does not cover the (2d denied, cert. dispute, in then point principles drawn 940, 1289, 59 440 99 S.Ct. L.Ed.2d 499 U.S. Tompkins, 64, Erie R. Co. v. from Syntex Laboratories, v. Skidmore 817, i.e., 82 L.Ed. 1188 a bar 58 S.Ct. Inc., 1244, (5th 1976); 529 F.2d 1249 Cir. encouraging against shopping forum or the Fenton, (7th v. 480 Simmons F.2d 133 Cir. law, administration of the must inequitable ; 1973) Welch v. Louisiana Power Light & applied. Corp., Steel 1344, Co., (5th F.2d 466 1346 Cir. 752, 100 at supra S.Ct. at 1986. Hanna See Transports, Inc., v. Gordons Crowder 387 Plumer, 468, 1142; 380 85 at v. U.S. S.Ct. (8th 1967). Cir. But see Davis, 1974). 507 Miller F.2d 308 Cir. Mulrenin, (1st Marshall Cir. an Erie analysis, when the state’s Under (Massachusetts 1974) state governs law re tolling upon filing integral on is an rule questions back in diversity lation cases since of the state’s substantive it part policies, the Massachusetts relation back doctrine is practice over apply will under the federal parcel and of its part substantive state toll example, For Fed.R.Civ.P. 3 simply rule. Safetech, ing provisions); Inc., Covel v. 90 civil states that action is commenced “[a] (D.Mass.1981) 427 (same). F.R.D. a with the court.” The analysis

The of the choice of law question in Walker held that Rule 3 did not Court encompasses scope plain and meaning of it tolled a state statute of indicate rule. the federal Walker v. analysis Armco Steel and therefore an Erie tion, practice power Supreme the result under state shall have the to Court rules, conclusively by general proc- prescribe need not be the forms of assessed. motions, majority, Buscaino v. ess, writs, pleadings, Two cases cited and the and Rhodes, (1971) practice procedure 189 N.W.2d 202 of the district courts and Estovez, Mich.App. Krontz v. appeals and 211 in 49 the United States and courts of (1974) do address the issue of ... actions civil Moreover, adding parties. new expressly disapproved Court title, Nothing anything in this therein to ... Harkai, 393 Krontz v. Estovez in Goniwicha v. contrary notwithstanding, any shall in (1974). Mich. limit, any repeal way supersede, such or prescribed rules heretofore Enabling provides, pertinent 3. The Rules Act Court. part: (1976). § 28 U.S.C. rule, required. rights which recognized

was did and duties by substantive filing, deal with explicitly upon justly administering law and redress integral Hanna, part an of the state’s substantive or infraction disregard of them.” giving the state rule quoting S.Ct. Sib supra at practice not federal and control the toll- bach Wilson & issue. See Walker v. Armco L.Ed. (1941). 746-47, 752-53, Corp., U.S. at procedure” gov because it “really regulates 1983-84, 1986; 28 U.S.C. dispute process resolution erns the in-court dispute rather than view, my plainly applica- pleading court. The form of a parties into addition ble to issue of whether the plain short cause a statement after suit party has been filed relates back rules on liberal consequent original date of filing. Its terms near pleading policy are effectuate unequivocally state that an amendment will the heart created back if its three conditions are relate met: proce provide orderly Federal Rules (1) party the claim the added arose disputes resolution of on their dure for the out the same transaction or occurrence Loudenslager v. Teeple, 466 merits. See original complaint; set forth Deupree, also Levinson See F.2d at 250. be added received notice within the 648, 651-52, fixed for notice on commencement generality J. L.Ed. 1319 action; should rea- (2d ed.) Moore, ¶ Practice Federal sonably 15.15[2] have known that but for a mistake (1982); Note, Applied at 186-190 The Law concerning his Diversity The Rules Cases: of Decision have included him defendant. Doctrine, Erie 85 Yale L.J. 678 Accord, Act and the Davis v. Piper (1976).5 & 700 at 692-705 Aircraft 1980). Loudenslager Teeple, Once a rule determined to be procedur- (3rd the plain Since al, the constitutional is direct and meaning 15(c) applies of Fed.R.Civ.P. beyond dispute: the answer adding relation back of par- amendments provision for feder- constitutional [T]he ties, Hanna v. Plumer sets forth a straight- system (augmented by al court Neces- the forward under the Rules Enabling Proper Clause) sary and carries with it Act, 28 U.S.C. and the Constitution power gov- congressional make rules to determine whether the federal rule is practice and erning pleading the in those so, valid. If the federal rule controls over a courts, which in turn power includes a practice.4 different state which, regulate matters though falling issue under Enabling the Act is the uncertain within area between sub- the rule “really whether regulates proce procedure, are capa- stance and rationally dure, judicial process enforcing for ble of classification as either. support proposition, 4. As for Teeple Hanna Loudenslager 5. The Third Circuit in quoted pro- quoted Plumer Rule Rule 1 Fed.R.Civ.P. Professor Moore: vides as follows: displace 15(c) If law were to in state Rule govern procedure cases, rules “diversity” policy These in the Unit- in embodied ed States district courts in 15(a) facilitating all suits civil decisions based on Rule cognizable merits, affirmatively nature ap- whether as at law or cases which has been equity, admiralty, exceptions Court, in Supreme or in with the proved frus- would be They stated in comprehensive Rule 81. shall be construed to Rule 15 embodies a trated. just, speedy, inexpensive purpose, secure the de- for this three scheme so that all every (a), (c), termination of (b), action. subdivisions of the rule — Plumer, (d), Hanna 380 U.S. at n. for that also matter —should viewed be exception general at 1140 entirety n. 3. Since no Prac- as and a of Federal matter application diversity pleading in tice. 15(c) Moore, contained in quoting must Fed.R.Civ.P. Rule 466 F.2d at J. Federal ed.) (2d control valid. Id. at 15.15[2] Practice ¶ Plumer, at with the policy Hanna v. 380 U.S. of the statute of limita- Doubtless, 15(c) rationally (1966). Utilizing Rule 39 F.R.D. at 1144. tions.” procedural. tolling rules as to would follow the capable of classification the state guidance Therefore, 15(c) question controls the Court’s that federal com- Rule of suit rules adding White mencement do not their of whether the amendment the state plain meaning back to the toll statute of limi- and Sundstrand relates date of v. Armco tations. See Walker Steel original complaint. at 1985 n. 9. single controversy A element However, require not Walker does that the 15(c) which is controlled plainly not mechanically applied rule tolling be itself rule for actions any nor other federal the Oklahoma diversity cases. stat- Unlike diversity “period provided by is the law Walker, Michigan ute at issue in commencing him.”6 of limitations for provisions of 15(c); Walker v. see Armco have authoritatively service Erie Corp., supra. The test would Steel be procedural construed to and not an inte- applied required were it necessarily be gral part right by of a substantive this case to make a choice between federal in Busciano Michigan Supreme Court Michigan law. Rhodes, 385 Mich. However, Corp., supra. Steel since the interest analysis The sensitive re- State of allows least 180 days Hanna v. Plumer discus- quired under the from the date the limitations period would plain not within the sion of situations have run otherwise before service must be meaning procedure, of a federal rule of civil accomplished under Court Rule 466-68, to decide see 380 on the 102.5,7 Jefferson, see Brashers v. tolling period, limits of the need curiam); (per required that task is not undertaken since Carreker, Dawson v. 108 Mich.App. given us that both Michi- by the case before and the practice federal gan procedure yield same and federal that commencement permanently holds tolls result. subject the statute of limitations ato later motion under Fed.R.Civ.P. United II. Wahl, States 15(c) Applied neither rule would time bar the amendment Having determined that Rule con- in this case since service was accomplished trols the issue of whether amended some weeks from the time two and one-half back, I now arrive at the pleading relates complex This issue statute had run. to the present rule facts. application need at this time. not be resolved party may Whether different be added Court in Walker v. Armco by amendment under Rule after the Corp., supra, held that since the reach would otherwise have statute of limitations of the Federal Rule 3 on when an action is much ink subject “upon run is a which commenced was not intended to a toll spilled by courts and commentators.” of the state tolling rules Kumar, (2d 585 F.2d 566 at Ingram v. 569 they have been govern authoritatively denied, 940, 1978), 440 U.S. 99 Cir. cert. part construed as a substantive of the state 8 (1979). 499 L.Ed.2d 59 The Advisory statute of limitations. Com- in 1966 to Rule 15 mittee Notes found the The current version of Rule re- “intimately back rule relation connected the addition of a lating party, adopted back Ingram governs during holding applied 6. The amount of time The that Rule 3 tolled, diversity to relate which notice will allow an action is determine whether a Peters, accord, post (6th See v. back. 799 Smith 482 F.2d Cir. [409-410]. by disapproval the Su- was noted with motion, Corp., v. Armco Steel preme Rule 56 Court Walker defendant has not plaintiffs’ challenged contention that the other 1982 100 S.Ct. 744 n. requisites by plain- fulfilled of Rule 102.5 were Court did original complaint Ingram’s tiff when his was filed. of Rule not consider 410 1966, requires a consideration hold, of these See 39 (1966). They F.R.D. 83 against essence, claim the new party facts: that notice which would have been must have arisen out of the same transac- timely party actually for a named in the occurrence; (2) party tion or must have complaint commencing action under adequate provid- had within the time notice tolling provision Rule 3 those commence; ed by law for actions practice9 courts found in federal party chargeable must be to be added determine the likewise timeliness of notice knowledge with but for a mistake as party. to the added proper party, to the I believe that the better view considers as against would have been it. timely parties actually notice to named in Little need be said concerning first, parties quite the complaint. Original obvi- complaint alleged since the amended no ad- ously filing do not receive notice of

ditional facts as to the injury-causing occur- filing complaint. lawsuit rence not alleged complaint. in the reject concept of notice requiring in favor of an additional mecha- The decision below rested on the second reasonably nism calculated to give disagreement notice. factor. Some has arisen in See Fed.R.Civ.P. 4. The restrictive view the cases interpretation as to the of when Fenton, supra, v. Simmons “the Archuleta v. provided by law for commenc Duffy’s, supra, require could times him notice party to be [the party to be added before occurs. courts the party Certain have read added]” provision narrowly require named in the receives notice.10 be Kumar, irrespective Ingram supra fore the statute has run 571. There toll ing provisions by filing. See, e.g., more require expeditious is no reason to Wood v. Worachek, (7th F.2d 1225 1980); 618 Cir. than it party notice to an added would have Fenton, (7th Simmons v. correctly Cir. had if it had been named. Avoid- 1973); Inc., Duffy’s, Archuleta v. result may ance of this anomalous itself be (10th Cir. Other courts have adequate reject con reason to the interpreta- rejected sidered and the narrow approach. brings tion which it about. Ingram v. Ku- See, e.g., Kumar, Ingram 571; mar, F.2d at 585 F.2d at see generally Kaplan, 571-72; Cronvich, Kirk v. 408 Continuing Work of the Civil Committee: Swann Oil Co. v. Vas M/S Amendments Federal Rules of sillis, 91 F.R.D. 267 (E.D.N.C.1981); Procedure, Hart v. Civil Harv.L.Rev. 410 & Corp., Bechtel 90 F.R.D. (D.Ariz.1980); n. 204 As the Court has Clark Ry. v. Southern 87 F.R.D. admonished, often the rules are not to be (N.D.Ill.1980); Kraus, Davis v. given and formalistic narrow construc- F.Supp. (E.D.N.Y.1979); cf. Kerney Rather, they tion. should be interpreted Ass’n, Inc., Fort Griffin Fandangle according to their function with a view 1980) (class action as hearing toward allowing a the merits. party added may relate back to original See, e.g., v. Hilton Corp., Surowitz Hotels filing date if prejudice is established). These adopt courts read Rule the L.Ed.2d 807 Foman Davis, statute of policies posited 178, 181-82, 227, 229-30, the Advisory Committee on Civil Rules. (1962); Conley Gibson, L.Ed.2d 9. But see the A, discussion of moves to add rule, plaintiff under the restrictive ante at 408-409. is barred the statute of limita- adequacy regard tions without of notice graphic example 10. One of such a situation received, closely A nor to how related A would result filed his lawsuit near strikingly is to defendant. tion, In a similar situa- period. the end of the limitations Service is Michigan appeals the of court held the mistakenly upon party first made A and then Party amendment to add A should relate back. upon the named defendant. If service was ef- Walker, Mich.App. See Koons v. 726 at required fected within the time to avoid a dis- 729-30, (1977) (statute pursuant missal the interim). of limitations had not run go Wahl, would forward. United States v. Yet, later

4H ante requirements. See [409- eral Rule Corp. requirement Ha- see Zenith Radio second also The 410]. Research, Inc., 321, 334-35, zeltine was satisfied.13 795, 804-05, L.Ed.2d 15(c), third criterion of an As to the 15(a) that “leave to precept in Rule erroneously of interest with identity freely given justice shall be so amend to charge suffices that a named defendant supports such a requires” conclusion. suit, notice of the defendant with proper Moreover, rule which accounts for a notice reasonably should know that but for a mis tolling period part standard identity proper take as to the defend “period provided commencing law for ant, would have been the intimate properly recognizes action” Sugar it. Callahan v. American See relation back rules connection between and (E.D.N.Y.1969) 47 F.R.D. 359 Refining of limitations. policy of the statute corporation had reason (successor to know to Rule Advisory Notes of the Committee have been named had plaintiff that it would 15(c), If a claim 39 F.R.D. existence). of its Cf. Staren v. been aware named, party originally not stale11 as to the Bank Trust and Co. of American National with the statute of policy associated 1976) 529 F.2d Chicago, foreclosing the justifies limitations addition (identity of interest notice and may supply is received within when notice back); relation but cf. Hernandez allow the law of statutes provided Toledo, v. Calero 102- Jiminez of limitations and doctrines. Believ- 1979) (in (1st Cir. some circumstances interpretation just this both and in har- notice, supplies of interest not rea 15(a) (c) mony with Rule and the func- mistake). The assertion in son to know approach pleading requirements, tional I is that White and are case Sundstrand adopt it as the law in this Circuit.12 to the defunct defend successors ant, Huller,14 within three weeks of Engelberg Service the date of and would be liable statute of damage occurred in En alleged causing defects here, is within the tolling period, gelberg machinery, including Huller purposes and for the of the instant summa- allegedly plain machine which caused the motion, plaintiffs’ ry judgment alleged suc- Hul Liability Engelberg injury. tiffs’ identify, holding cessful efforts to locate and serve a that its support ler’s torts would Sundstrand, certainly satisfy White fed- successors, and Sundstrand White policy 24, 1964, January merged behind statute of on firm with July prevention Skyvalve, Incorporated. is the of stale claims. about On or v. Armco Steel changed See Walker company U.S. at name was pur- Corporation. 751 n. 100 S.Ct. at 1986 n. 12. In 1966 the firm was Corporation, a Sundstrand chased 12. Such a conclusion is not new in Sixth Cir corporate corporation, with offices Delaware cuit lore. This a conclu Court reached similar Rockford, a Illinois. For located in Greyhound Corp., Grooms v. sion in time, operations were carried out sub- (6th Cir.1961). prompt Where service was Sundstrand, sidiary White- known as upon plain corporation effected on a successor Tool, Incorporated. Machine apprehension originally-named tiffs itself of of 1977 Sundstrand divested October defunct, approved defendant was this Court operations, and on March machine tool its proper party was Tool, relation back when Incor- Machine 1979 White-Sundstrand served within the time the State of Ohio had porated White Consolidat- was taken over complaint. Id. allowed Industries, for service after corporation a Delaware head- ed at 98. quartered in Ohio. efforts to unearth the 13. After successors of in interest have often been held Successors Huller, Engelberg plaintiffs the fol- discovered See satisfy branch of third lowing com- set it forth in their amended Miller, Wright Federal Practice and & A. C. plaint: (1971 & 1499 at 519 n. Procedure: Civil § 1982) Supp. therein. Plain- It was later determined collected [after and cases continuity Engelberg Compa- Huller there is a that the tiff asserts that filed] further location, change April physical ny personnel, Incorporated, management, as- had a name and, Incorporated, Engelberg, general operation addi- and that 1958 to business sets and have known but for a mistake as to Engelberg

the existence of Huller and the successors,

identity of its

originally brought against have been them.

See Infotronics v. Varian Asso Corporation, (S.D.Texas

ciates 45 F.R.D. 91

1968). Defendants make no claim that

plaintiffs’ failure to name them was a tacti

cal choice or be one that could accounted than another motive mistake. factors I have noted are not exhaus-

tive. If it were found below White

and Sundstrand should have known that plaintiffs’

absent they mistake would have original

been named complaint, then,

taking plaintiffs’ true, factual allegations as

the amendment should relate back to the

date of purposes for the instant summary judgment motion. Complaint

In the Matter of the of PA- COMPANY, INC.,

DUCAH TOWING al., Claimants-Appellees,

et America,

UNITED STATES

Plaintiff-Appellee, COMPANY,

PADUCAH INC., TOWING

Defendant-Appellee, Corporation, Party

Exxon Third

Defendant-Appellant.

No. 81-5380.

United States Court of Appeals,

Sixth Circuit.

Argued June

Decided Nov. tionally, assumption those liabilities ordi- Mich. it has never narily necessary uninterrupted for an required continua- to allow relation this Circuit operations tion of the normal Grey- of En- back of an amendment. See Grooms v. business gelberg complete identity Huller. While such hound may necessary impose liability Body, on White but cf. Marlowe v. Fisher Engelberg and Sundstrand for the Hul- 1973) (wholly acts and unrelated distinct ler, Casualty see Turner v. Bituminous party, by plaintiff). no mistake

Case Details

Case Name: Carol Anita Ringrose and Frederick Ringrose v. Engelberg Huller Co., Inc., Sundstrand Corporation and White Consolidated, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 2, 1982

Citation: 692 F.2d 403

Docket Number: 80-1086

Court Abbreviation: 6th Cir.