had run. It is only when the conditions of Rule 15(c), F.R.Civ.P. are satisfied that the filing of an amended complaint to add a new party can "relate back", i.e., be treated as though filed when the original complaint was filed for purposes of the statute of limitations.
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 relation back was not satisfied.
The affidavit of plaintiff's attorney explains that summons issued to the U. S. Marshal in Newark with instructions to serve Marine Transport in New York. Under the usual practice, the summons and complaint were sent to the U. S. Marshal in New York, and in some way they were lost or misfiled, a new set of papers was sent and eventually served but not until May 27, 1980, nearly six months after filing and more than 2 months after the statute had run.
The Congress has failed to provide adequate funds to enable the U.S. Marshal to effect service promptly in civil cases. There is a heavy burden on that staff for criminal cases, and the volume of civil cases has erupted in recent years.
Rule 4(c) F.R.Civ.P. has long provided authority to the court to enter orders of special appointment for service of process by persons other than the U.S. Marshal or his deputy. In this District the court has authorized the Clerk of the court to issue such orders and has widely publicized that fact to the members of its bar by prominent notices in the New Jersey Law Journal, the official organ for that purpose not only for this court but for the Supreme Court of New Jersey as well.
Had that course been followed, Marine Transport could have been served well within the statute of limitations which had four months to run when the original complaint was filed.
For compatible rulings reaching the same result, see:
Craig v. U. S., 413 F.2d 854 (CA-9, 1969);