The opinion of the court was delivered by: BIUNNO
Robbins was a "wiper" on a ship owned by Union Carbide, for which Marine Transport Lines, Inc. was acting as disclosed agent.
On November 29, 1979, this complaint was filed against Marine Transport and the ship, but without warrant to arrest the ship, asserting claims for injuries and other relief under the Jones Act, 46 U.S.C. § 688. (Shipping)
Service on Marine Transport was not effected until May 27, 1980, evidently due to loss of the papers in the office of the U.S. Marshal in New York, where they had been sent for service.
On December 22, 1980, Robbins filed a motion for leave to amend by adding Union Carbide Corporation as a defendant. The magistrate entered an order granting the motion on January 14, 1981. The amended complaint was filed January 26th, and the summons with amended complaint were served February 20th. After answer filed, which raised the statute of limitations as a separate defense, this motion followed, asserting non-compliance with Rule 15(c), F.R.Civ.P.
A motion to dismiss grounded on the statute of limitations is not a motion under Rule 12(b), F.R.Civ.P. and since matters outside the pleadings have been presented (copies of correspondence not in dispute, excerpts from depositions and an affidavit of plaintiff's attorney), the motion is treated as a motion for summary judgment as to Union Carbide.
The most recent date found when an injury could have occurred is March 14, 1977. The last day of the 3-year period of limitations, 45 U.S.C. § 56, (Railroads) was March 14, 1980.
A civil action is commenced or instituted by filing the complaint, Rule 3, F.R.Civ.P., for the purposes of the statute of limitations. Thus, the November, 1979 filing was within time as to Marine Transport.
Ordinarily, once the applicable statute of limitations has run, there vests in the person against whom the claim might have been made if timely filed, a right to be free of the claim. Under current law, it is the rules of practice that determine with certainty when an action is commenced, and Rule 3, F.R.Civ.P. specifies the filing of the complaint as that event. Since Rule 15(c) is also part of the practice rules, its provisions in respect to relation back, when satisfied, have the effect of making the original filing date controlling as to the statute of limitations. This is a legal fiction, of course, but it has been part of the Rules since January, 1938 and so prevents a vesting thereafter.
In this case, however, the requirements of Rule 15(c) are not met, and the newly asserted claim against Union Carbide cannot relate back to November 29, 1979 when the original complaint was filed against Marine Transport. The result is that the civil action against Union Carbide was not commenced until the amended complaint was filed on January 26, 1981, well beyond the period of the statute.
For Rule 15(c) to have been satisfied when a new party is brought in by amendment, it must appear that within the period provided by law for commencing the action against him (i.e., within the period of limitation) the new party has received notice "of the institution of the action," i.e., the original action in which he was not named.
Assuming that Marine Transport is treated as Union Carbide's agent for this purpose, namely that Union Carbide will be taken to have received notice that the action against Marine Transport had been instituted when Marine Transport did, that event did not occur until May 27, 1980, more than two months after the statute had run.
Thus, the first conceivable notice to Union Carbide that the original action had been instituted was on the date service was effected on its agent, and that occurred after the statute had run.
The rule is clear and explicit, and needs no construction or interpretation. This essential condition for ...