Hipolito J. CHACON and Martha Chacon, husband and wife, Plaintiff-respondents, v. SPERRY CORPORATION, a corporation, dba Sperry New Holland Division, Defendant-appellant, and Thomas O. Bingham and Marjorie Bingham, husband and wife; Koch Lumber & Implement Co., Inc., an Idaho corporation, Defendants. Hipolito J. CHACON and Martha Chacon, husband and wife, Plaintiff-respondents, v. KOCH LUMBER & IMPLEMENT, INC., an Idaho corporation, Defendant-appellant, and Thomas O. Bingham and Marjorie Bingham, husband and wife; Sperry Corporation, a corporation dba Sperry New Holland Division, Defendants.
Nos. 15898, 15899
Supreme Court of Idaho
June 3, 1986
Rehearing Denied Aug. 28, 1986
723 P.2d 814
Mary S. Hobson of Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, for appellant Sperry Corp.
Curtis Webb of Webb, Burton, Carlson, Pedersen & Paine, Twin Falls, for respondents.
BAKES, Justice.
Defendants Koch Lumber & Implement Co., Inc., and Sperry Corporation bring this certified appeal from the district court‘s denial of their motion to dismiss plaintiffs’ amended complaint. Plaintiffs’ amended complaint, filed after the running of the applicable statute of limitations, substituted defendants’ names in place of two fictitious names contained in the original complaint.
I
Hipolito Chacon‘s right foot was injured August 1, 1981, while Chacon was operating a forklift. Chacon filed this action on July 28, 1983, near the end of the two-year limitation period of
In April of 1984, Chacon determined that Koch Lumber & Implement Co. was the implement company which sold, and Sperry Corporation the manufacturing company which manufactured the forklift. On June 4, 1984, Chacon amended his complaint, deleting the fictitious names and inserting the names of Koch Lumber & Implement, Inc., and Sperry Corporation.
On June 12, 1984, Koch Lumber & Implement was served with summons and a copy of the amended complaint, and on June 14, 1984, Sperry Corporation was served. The record is uncontroverted that, prior to receiving service, neither Koch Lumber & Implement nor Sperry Corporation had any knowledge of this action or the claim of Chacon.
Koch Lumber & Implement and Sperry Corporation moved to dismiss the amended complaint, alleging that the amended complaint had not been filed within the two-year statute of limitations set forth in
II
In 1959, when this Court by order adopted the Federal Rules of Civil Procedure as the rules of procedure in Idaho, the then existing
Rule 15(c). Relation back of amendments.—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.
In 1966,
Rule 15(c). Relation Back of Amendments. 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 him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he 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 him.
The delivery or mailing of process to the United States Attorney, or his designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of clauses (1) and (2) hereof with respect to the United States or any agency or officer thereof to be brought into the action as a defendant. (Underlining added.)
The federal cases interpreting
The notice requirements articulated in the second sentence of
any party who is to be added by amendment after the limitations period has expired had adequate notice of the action and of plaintiff‘s mistake in failing to name him at the outset. Otherwise, the deprivation of the new party‘s right to invoke a statute of limitations defense might raise a question of procedural due process. To guard against this possibility, Rule 15(c) provides that within the period prescribed for commencing an action against him, ‘the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (2) knew or should have known that, but for the mistake concerning the identity of the prop-er party, the action would have been
brought against him.’ If these prerequisites are satisfied and if the amended claim arose out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, then any amendment ‘changing’ a party against whom a claim is asserted will relate back. Wright & Miller, supra.
In 1975, when Idaho made its first major revision of the Idaho Rules of Civil Procedure and incorporated the changes which had been made in the Federal Rules of Civil Procedure after their adoption in Idaho in 1959, the Civil Rules Advisory Committee recommended the Court adopt the 1966 amended
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 him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he 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 him.
The general rule of construction which this Court has adhered to regarding the adoption of statutory language from another jurisdiction is that the adoption of that language is presumed to be with that jurisdiction‘s prior interpretation upon it. Odenwalt v. Zaring, 102 Idaho 1, 4, 624 P.2d 383, 387 (1981). See also Leliefeld v. Johnson, 104 Idaho 357, 367, 659 P.2d 111, 121 (1983). In our recent case of Leliefeld v. Panorama Contractors, Inc., 111 Idaho 897, 728 P.2d 1306 (1986) (petition for rehearing granted, March 26, 1986), we reaffirmed the following rule from Odenwalt:
This court has consistently held that ‘[a] statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction.’ Nixon v. Triber, 100 Idaho 198, 200, 595 P.2d 1093, 1095 (1979); State v. Miles, 97 Idaho 396, 545 P.2d 484 (1976); Doggett v. Electronics Corp. of America, 93 Idaho 26, 454 P.2d 63 (1969). Leliefeld v. Panorama Contractors, Inc., 111 Idaho at 897, 728 P.2d at 1306, quoting from Odenwalt, 102 Idaho at 5, 624 P.2d at 387.
We see no difference between the adoption of a statute by the legislature or a rule by this Court. Thus, our adoption in 1975 of the above referenced language in post-1966
Rule 10(a)(4). Unknown party.—When a party does not know the true name of the adverse party he may state that fact in the pleadings and designate such adverse party by any name and the words, ‘whose true name is unknown,’ and when his true name is discovered the pleading must be amended accordingly.
While there is no comparable federal rule relating to fictitious parties, there was at the time and still is an established federal practice in most federal circuit courts even without such a rule, recognizing the right to plead fictitious parties. See LeGrand v. Evan, 702 F.2d 415, 417 (2d Cir.1983); Schindler v. Wabash R. Co., 80 F.Supp. 685, 686 (W.D.Mo.1948). Thus, while there is no comparable federal rule, there is a comparable federal practice, and the federal courts have held that practice to be subject to the provisions of
The state court decisions are divided on whether or not the amendment of a complaint designating a named defendant in place of a fictitious defendant relates back to the filing of the original complaint in order to toll the running of the statute of limitations. The different results in the various states generally reflects the fact that the statutes and rules in each state differ substantially. Many states have adopted the view that fictitious party pleadings are subject to the notice requirement
However, part of the reason for adopting the Federal Rules of Civil Procedure in Idaho, and interpreting our own rules adopted from the federal courts as uniformly as possible with the federal cases, was to establish a uniform practice and procedure in both the federal and state courts in the State of Idaho. We recently adopted the Federal Rules of Evidence as the rules of evidence in Idaho in order to obtain uniformity in the trial practice in both the state and federal courts. Lack of uniformity in the rules of procedure, as well as rules of evidence, creates problems for both the courts and the practitioners. These problems can be avoided by interpreting our rules of civil procedure in conformance with the interpretation placed upon the same rules by the federal courts.
Our examination of case law directs us to conclude that the federal courts, both before and after our adoption of amended
III
A. Nevertheless, we are mindful of the established practice in the state courts which is reflected in the trial court‘s decision in this matter. This practice allows the amendment of a complaint designating the true name of a fictitiously described party to relate back to the filing of the original complaint without meeting the notice requirements of
As the trial court noted in this case, there was not sufficient evidence before the court at the time it ruled on the motion to dismiss to determine whether or not due diligence had or could be shown. Accordingly, the judgment of the district court denying defendants’ motion to dismiss is affirmed, as modified in this Part III(B), without prejudice to renewing the motion to dismiss after sufficient time to conduct discovery on the issue of due diligence.
Affirmed, as modified, and remanded for further proceedings consistent with this opinion. No costs or attorney fees allowed.
DONALDSON, C.J., and SHEPARD and HUNTLEY, JJ., concur.
BISTLINE, Justice, concurring in part only and dissenting:
Where this Court recently in Leliefeld II bottomed its decision on Odenwalt v. Zaring1 on the proposition that when our leg-islature adopts the statutory law of another state, it adopts case law from that other state which interprets or applies that statutory law, the district judge and the respondents will have just cause for becoming disconcerted, disappointed, and despondent in reading today‘s opinion for the Court—an opinion which acknowledges the existence of
Despite the fact that nothing in the annotation to Rule 10(a)(4) provides the historical change from rule to statute, it is inescapable that the chairman and members of that particular court-appointed committee were well aware that the rule was not a product of committee draftsmanship, but rather was a verbatim reproduction of an Idaho statute with some really long whiskers on it. That statute was
Irving v. Carpentier, 11 P. 391, decided by the California Supreme Court in the summer of 1886, revolved around the application of § 474. That court wrote:
The statute above referred to is an enabling one, and should be so construed as to cure the evil it was designed to correct, and advance the remedy. Persons are sometimes compelled to bring suits in haste. They have not time to ascertain the true names of parties to be made defendants. The statute of limitations may, in a day from the time the preparation of the complaint is commenced, effect a bar. Sometimes there is no means readily accessible of ascertaining the true names. The statute above referred to was enacted to afford a remedy in such cases. Should a plaintiff lose his right to have his case tried because of ignorance of the names of parties whom he has a right to sue, and as to whom he may have a good cause of action? How is the party sued by a name not his own injured? He loses no right by allowing a plaintiff to proceed as provided by the statute. He has every opportunity accorded to any other defendant to make his defense. He can demur or file his answer, and set up every defense which he is advised he can rely on. The counsel for respondent herein likens this case to that of a party allowed to bring an action for relief on the ground of fraud, in which case the cause of action is not deemed to have accrued until the discovery by the party aggrieved of the facts constituting the fraud. In construing this rule it has always been held that a party discovers the fraud when, by the use of reasonable diligence, he might have ascertained the facts constituting the fraud. But the rule prescribed by the statute in this case is entirely different. It is when he is actually ignorant of a certain fact, not when he might, by the use of reasonable diligence, have discovered it. Whether his ignorance is from misfortune or negligence, he is alike ignorant, and this is all the statute requires. This is the true meaning of the statute. We adopt it the more readily because the party thus brought in as a defendant loses no rights by it. Irving, supra, 11 P. at 392 (emphasis added).
In December of 1886, the Thirteenth Territorial Legislature met. In enacting its session laws it adopted and enacted respectively a new Political Code, a new Civil Code, a new Criminal Code, and a new “Code of Civil Procedure, regulating the entire subject of civil procedure in all the courts.” See Introduction to Revised Statutes of Idaho, 1887. At page 458 of that enactment is found § 4230, reading then just as it did for all of those 88 ensuing years until its demise at the hands of a legislature all too willing to oblige the Court‘s request for its repeal. Nonetheless, however, it survived in rule form, and the rules committee saw not one whit of reason for changing a single word. Accordingly, the bar will be hardpressed indeed to understand why it is that the rule must not be given the same liberal application that the California court placed upon it before the legislature of Idaho was the first to take it verbatim from California—and the rules committee like-
Many jurisdictions with provisions similar to Idaho‘s
The majority argues that
The majority asserts that
The unfortunate result of the majority‘s holding is that henceforth plaintiffs, who timely commenced their action against unknown parties identifiable only by what they did do or omitted to do (hence, defendants are then unknown as to name), are denied a day in court on a technical and nonmeritorious defense, and an unfair hypertechnical Supreme Court opinion. See Barrington v. A.H. Robbins Co., 702 P.2d 563, 565, 216 Cal.Rptr. 405, 702 P.2d 563 (Cal.1985). In the process,
There remains again untouched in the majority opinion the proposition that, just as in Odenwalt, supra, it must be presumed that the committee utilized the language of the same rule from our sister state of Nevada; the Supreme Court of that state had addressed the exact issue at a time prior to the promulgation of the same rule in Idaho. Hill v. Summa Corp., 518 P.2d 1094 (Nev.1974). The opinion for the court held thusly:
In our view, when a plaintiff‘s counsel has properly utilized NRCP 10(a), adequately alleging intended defendants and present uncertainty as to their names, stating the names later in an amended pleading cannot be equated with “adding” totally new parties to the action. Cf. Knight v. Witco Chemical Co., 89 Nev. 586, 517 P.2d 792 (1973). Then, at least, there is no reason an amendment stating the names should be regarded differently under NRCP 15(a) than any other facts counsel may wish to correct or clarify by filing an amended pleading “once as a matter of course.” By virtue of NRCP 10(a), the designated but unnamed defendants are already parties in legal contemplation. A subsequent amendment, stating their actual names, therefore relates back to commencement of the action as provided in NRCP 15(c). Hill, supra, 518 P.2d at 1095 (emphasis added).
The court was unanimous. Chief Justice Thompson, in a separate concurring opinion, provided a historical analysis of Nevada‘s Rule 10(a), much as I have done:
Rule 10(a) is the successor to NCL 8641 which, in turn, was borrowed from Cal.C.C.P. 474, presumably with the construction given it by the California court. State ex rel. Brennan v. Bowman, 88 Nev. 582, 585, 503 P.2d 454 (1972).
The Rule does not refer to a party who is not known. It does refer to a party whose name is not known. Thus, it appears to embrace the case where the plaintiff has in mind the identity or description of the fictitiously named defendant, but not his true name. Mercantile Trust Co. v. Stockton Terminal & R. Co., 44 Cal.App. 558, 186 P. 1049 (1919); Day v. Western Loan & Bldg. Co., 42 Cal.App.2d 226, 108 P.2d 702 (1940).
The primary purpose of the Rule apparently is to enable the plaintiff to bring suit before it is barred by limitations. Austin v. Massachusetts Bonding & Insurance Co., 56 Cal.2d 596, 15 Cal.Rptr. 817, 820, 364 P.2d 681, 684 (1961); cf. Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 (1969).
When the case truly is one within Rule 10(a) and the true name of a defendant is substituted for the fictitious name, then, and only then, is he to be considered a party to the action from its commencement. Hill, supra, 518 P.2d at 1096 n.1.
While I fully appreciate that the majority opinion pays lip service to the far earlier existence of
A majority vote having prevailed in Odenwalt, that exact rationale was applied in the opinion for the Court in Leliefeld II—which opinion Justice Bakes specifically declined to join, and from which Justice Shepard dissented without revealing any opinion for doing so. The opinion of Justice Bakes states that he concurred in the result. The “result,” of course, may be confusing to some attorneys as to what is meant. By way of explanation, the “result” of an appellate court is what action it
With that in mind, the reader will better understand my above statement that Justice Bakes did not join the opinion for the Court in Leliefeld II. Voting to affirm the judgment below, however, he set out his own ratio decidendi for doing so:
As in this case, where the per cent of recovery by the plaintiff in the second trial is established to be at least as high as, or higher than, in the first trial, the court was correct in allowing interest on the award in the second judgment back to the date of the first judgment. Leliefeld II, supra, 111 Idaho at 897, 728 P.2d at 1306.
As might be expected, Leliefeld II is back with the Court again, a petition for rehearing having been granted. As the minutes of this Court reflect, the order was entered on March 26, 1986, with Chief Justice Donaldson, Justice Huntley, and Justice Bistline voting “Deny,” with Justice Shepard voting “Grant,” and Justice Bakes voting “Definitely Grant.” This latter style of vote is entirely something new, and whether it is meant to signify the welcoming of a second opportunity to find some way to avoid the application of Odenwalt to Leliefeld II, or, perhaps, to afford a second opportunity for Justice Bakes to reconsider the law he would be making if two other members of the Court joined his Leliefeld II opinion, is unknown and speculative.
What is known and not in the least speculative, however, is that in Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 693 P.2d 427 (1984), the opinion authored by Justice Huntley gained three concurrences with Justice Bakes dissenting only in part and with opinion. Justice Shepard somewhat dampened the quality of his concurring with the majority thusly: “I concur in the Court‘s opinion solely to the end that should a petition for rehearing be filed I may be able to, and most assuredly will, cast a meaningful vote to grant rehearing....”
Those practitioners who previously may have been not interested in or unaware of the Court‘s own rule as to the requirement of the two votes necessary to order a rehearing, apparently took good note that day that a “meaningful vote” must be that of at least one justice in the majority—as witnessed thereafter by the increasing number of petitions for rehearing. All of which is to suggest not that Justice Bakes would not have concurred in the Leliefeld II result solely in order to vote as did Justice Shepard for the rehearing—but is to understand that his Odenwalt ratio decidendi was applicable to that case only, and to none other—and certainly not to Leliefeld II, and again not to this case.
For my part, here I would have preferred indulging in the belief that he somehow was unaware that six or eight months after the California Supreme Court handed down its opinion in Irving v. Carter, supra, quoted at length above, pp. 13-14, the Idaho territorial legislature enacted a statutory provision identical to California‘s § 474—all of which took place over a half-century before there was even only thought of Idaho‘s embarking into its version of the Federal Rules of Civil Procedure.
Justice Bakes, as the trial bar will be led to believe, entertains the view that it is better to sacrifice Idaho case law in order to achieve complete uniformity in the trial practice to the extent that what serves the goose (the federal practice) must also be good for the gander (the Idaho practice). I am not in the least persuaded to making that sacrifice, and can best express myself by again quoting a passage which was thought applicable in other cases:
The most intolerable evil, however, under which we have lived for the past twenty-five years, has been the changing and shifting character of our judicial decisions, by which we have been deprived of the inestimable benefit of judicial precedents as a safeguard to our rights of person and property.
There may be some very slight validity to the philosophy espoused by Justice Bakes in refusing to apply the California case to our identical statute (now rule), but there is no wisdom in it. We are the Idaho Court sitting at the top of the Idaho heap—as it were, and the federal system will go its own way—irrespectively of what this Court does.3 Moreover, I would surmise that of the 2,000 or more attorneys in Idaho practicing trial work before Idaho‘s 33 district judges and sixty-some magistrates, perhaps only between five to ten percent of that number are in trial work before Idaho‘s three federal district judges, and that the federal practice of that scant number amounts to less than five percent of their average annual total trial practice—and usually less or none.
As said in a television comedy, “It‘s great to be King.” Today, the majority in a mannerly most fatherly and patronizing, abandons statutory Idaho case law and magnanimously confers a benefit on the trial bar and the litigants which should be little welcomed. At least, and commendably, the majority makes its new rule prospective only. As far as the instant case be concerned, under existing case law the trial judge was 100 percent correct in his ruling and was not entitled to be slapped in the face with a reversal. To the extent that the majority makes its new rule prospective only, I concur. To the extent that it nevertheless requires the plaintiffs to show commensurate due diligence, which is at odds with the underscored language of the California case, supra, which was extant interpretative California case law when our entire code was re-enacted in 1887, I dissent.