Plaintiff appeals a summary judgment dismissing his claim on the ground that it is time barred. We reverse and remand.
On August 15, 1999, plaintiff was injured when he fell to the floor while eating at Hereford L’Oasis, a restaurant in Baker County. On August 15, 2001, plaintiff filed the original complaint in this negligence action for damages arising from that accident. The complaint named as defendants “Hereford L’Oasis, a sole proprietorship; Jim Lowe and Vicky Lowe or Larry Gerrels and Terry Gerrels; or Richard Branum and Joseph Branum, as owners; and Does I-V, unknown parties.” The complaint alleged that Hereford L’Oasis was a “sole proprietorship” that was owned by “one or more” of the named individual defendants.
Plaintiff did not serve the original complaint on any of the named defendants. Instead, on September 10, 2001, plaintiff filed an amended complaint that named the same defendants as in the original complaint, with the exception of Richard and Joseph Branum, who were dropped from the action. As did the original complaint, the amended complaint alleged that Hereford L’Oasis was a “sole proprietorship” that was owned by “one or more” of the named individual dеfendants. The allegations in the amended complaint otherwise were identical to those in the original complaint.
On September 28, 2001, plaintiff served Larry and Terry Gerrels with summonses and copies of the amended complaint. On September 27,2001, plaintiff served summons and a copy of the amended complaint on Jim Lowe as “agent for service” of Hereford L’Oasis. On October 4, 2001, plaintiff also purported to serve Hereford L’Oasis by serving summons and a copy of the amended complaint on Kathy Lowe, “registered agent.”
1
On October 16,2001, plaintiff voluntarily dismissed thе action as to the
Plaintiff asserts that the trial court erred in dismissing the action because the amended complaint was served within 60 days after the filing of the original complaint, which, he asserts, was timely filed. Defendants respond that the original complaint was untimely filed and that, even if it was timely, the action nonetheless was time barred. Defendants reason that, because plaintiff failed to serve them with summonses and сopies of the original complaint, the action was commenced only when the amended complaint was filed, more than two years after the accident.
Plaintiff’s claim was subject to the two-year statute of limitations applicable to personal injury claims.
See
ORS 12.110. After the trial court dismissed the action, we held in
Neff v. Jackson County,
ORS 12.020(2) provides:
“If the first publication of summons or other service of summons in an action occurs before the expiration of 60 days after the date on which the complaint in the action was filed, the action against each person of whom the court by such service has acquired jurisdiction shall be deemed to have been commenced upon the date on which the complaint in the action was filed.”
Plaintiff argues that, because summonses and copies of the amended complaint were served on defendants within 60 days after the complaint was filed, this action is deemed to have been commenced on the date on which the complaint was filed. For thе reasons explained below, we agree.
Because no defendant filed a responsive pleading to the original complaint, plaintiff was entitled to file the amended complaint without permission from the trial court. See ORCP 23 A. 3 ORCP 23 C provides:
“Whenever the claim or defense asserted in thе 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 the party to bebrought in by amendment, such party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining any 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 the party brought in by amendment.”
Under the first sentence of ORCP 23 C, the filing of an amended pleading relates back to the date of the original pleading if the claims in both pleadings arise out of the same “conduct, transaction, or occurrence.” However, the second sentence of ORCP 23 C imposes additional conditions for relation back when the amended pleading “changes” the party against whom the claim is made.
Defendants rely on two cases in which we construed ORCP 23 C,
Harmon v. Fred Meyer,
Harmon involved the application of ORCP 23 C to a misnomer problem, that is, the correct defendant was misnamed in the original complаint. We stated that
“there can be a circumstance when a party that has been served correctly but not correctly named in the original complaint is brought before the court by the complaint; in such a circumstance, an amendment of the pleading to correсt the party’s name does not result in a change of parties.”
Harmon,
In
Richlick,
the correct defendant was named for the first time in the amended complaint. The
plaintiff
contended that the amended comрlaint effected a “change” of defendants.
Richlick,
Defendants rely in particular on the following passage from Hannon, in which we distinguished Richlick:
“Our opinion in Richlick does not require a different result. There, the original сomplaint both misnamed the defendant and named an incorrect but existing entity; the correct defendant was not served with a copy of the original complaint. The amended complaint correctly named the defendant, but was filed and served on the correct defendant only after the running of the statute of limitations, although within the 60-day period allowed for service of summons. Thus, regardless of whether the amended complaint had effected a change in the party, it did not relate back, because the original complaint had never been sеrved on the correct defendant. The original complaint therefore did not commence the action against the correct defendant, and there was no complaint to which the amended complaint could relate back.”
Harmon,
Defendants argue that the action nevertheless is time barred because, in order to obtain the benefit of the 60-day rule under ORS 12.020(2), plaintiff was required to serve defendants with summonses and copies of the original complaint during that period. Defendants are mistaken. ORS 12.020(2) says nothing about service of any particular pleading; rather, it prescribes service of summons before the expiration of 60 days after the date on which the complaint was filed. Defendants here were served with summonses and copies of the amended complaint within 60 days after the original complaint was filed. Summons is the process that, among other things, directs a defendant to appear in an action or face default. See ORCP 7 C(3)(a) (prescribing content of summons). Although several subsections of ORCP 7 refer to “the complaint,” none of those provisions distinguishes, for purposes of service together with summons, between the original complaint and an amended complaint. 4
The original complaint in this action was superseded by the filing of the amended complaint.
Propp v. Long,
To summarize, plaintiff was entitled to file the amended complaint without leave of court because defendants, not having been served with the original complaint, had not yet responded to it. ORCP 23 A. Because the
amended complaint arose from the same occurrence alleged in the original complaint and did not effect a “change” in parties, it related back to the date on which the original complaint was filed. ORCP 23 C. Further, because plaintiff served defendants with summonses and copies of the operative complaint — the amended complaint — within 60 days after the original complaint was filed, this action is deemed to have been commenced on the date that the original complaint was filed. ORS 12.020(2). The original complaint was timely filed, because it was filed on the second anniversary of the accident. ORS 12.110;
Neff,
Reversed and remanded.
Notes
Because the parties have not addressed either the necessity or the sufficiency of the purported service of summons and the amended complaint on Hereford L’Oasis, we do not consider those issues.
The remaining defendants, Larry and Terry Gerrels and Hereford L’Oasis, are hereafter referred to as “defendants.”
ORCP 23 A provides:
“A pleading may be amended by a party once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, the pаrty may so amend it at any time within 20 days after it is served. Otherwise a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. Whenever an amended pleading is filed, it shall be served upon all parties who are not in default, but as to all parties who are in default or against whom a default previously has been entered, judgment may be rendered in accordance with the prayer of the original pleading served upon them; and neither the amended pleading nor the process thereon need be served upon such parties in default unless the amended pleading asks for additional relief against the parties in default.”
See, e.g., ORCP 7 D(2)(a), (c); (6)(b).