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Slater v. Skyhawk Transportation

May 4, 1999


The opinion of the court was delivered by: Stephen M. Orlofsky United States District Judge




ORLOFSKY, District Judge

This case involves a complex and, at times, seemingly convoluted, mélange of often misunderstood legal issues, including choice of law, third party practice, Rule 11 sanctions, and a survey of the law of negligence of Michigan, New Jersey, and Virginia. In an effort to speed this case to trial, I have resolved all pending motions in an omnibus opinion that only mirrors in breadth what it treats in depth.

Defendant and Third Party Defendant, S.D. Warren Paper Co. ("S.D. Warren"), has filed a motion to dismiss the Amended Complaint of Plaintiff, Brantley Slater ("Slater"), which alleges that, on May 8, 1995, Slater was injured when struck by a tractor trailer. In response to S.D. Warren's motion to dismiss, Slater filed a cross-motion to amend his complaint nunc pro tunc. In his Amended Complaint, Slater alleges that S.D. Warren, the owner of the paper mill at which the accident occurred, Defendant, Skyhawk Transportation, Inc. ("Skyhawk Transportation"), the owner of the truck, and Defendant, Mark Young ("Young"), the driver of the truck, are all jointly and severally responsible, and, therefore, liable, for his injuries. Skyhawk and Young (collectively, "Skyhawk") have also filed a motion for summary judgment, arguing that they were not at fault. *fn1 Third Party Defendant, Reco Constructors, Inc. ("Reco"), Slater's employer at the time of the incident which Skyhawk claims is liable for the accident, has also filed a cross-motion for summary judgment, claiming that it, too, was not at fault. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332, as there is complete diversity of citizenship between the parties and the amount in controversy is in excess of $75,000, exclusive of interest and costs.

For the reasons set forth below, I hold that no conflict of law exists and, therefore, I will apply the law of Michigan, New Jersey, and Virginia to the issues presented by the parties in their various motions. Upon application of the law of these three states, I find that Slater's claims against S.D. Warren are time-barred. Further, I find that Slater's claims against S.D. Warren do not relate back to the filing of the original complaint, because, among other reasons, Slater did not amend to correct "a mistake concerning the identity of the proper party." See Fed. R. Civ. P. 15(c)(3)(B). Accordingly, I will dismiss Slater's claims against S.D. Warren and deny Slater's motion to amend nunc pro tunc as futile. Additionally, because I have found that counsel for Slater may have failed to conduct a reasonable inquiry into the law before filing the Amended Complaint, I will enter an Order to Show Cause, directing Gerald M. Eisenstat, Esq., counsel for Slater, to show cause whether he has violated Rule 11(b)(2) of the Federal Rules of Civil Procedure, and what sanctions, if any, should be imposed.

I also find that this Court does not have subject matter jurisdiction over Skyhawk's allegations, contained in its two third party complaints, that S.D. Warren and Reco each are directly and solely responsible for Slater's injuries, because Rule 14(a) of the Federal Rules of Civil Procedure only permits allegations of derivative liability. Accordingly, I will dismiss Skyhawk's Third-Party Complaints against S.D. Warren and Reco to the extent that they allege direct and sole liability.

I further find that the summary judgment record contains numerous genuine issues of material fact. As a result, I will deny Skyhawk's motion for summary judgment and Reco's cross-motion for summary judgment.


In May of 1995, Slater was working for Reco as a welder. Slater Dep. Tr. at 34-37. Reco had entered into a contract with S.D. Warren, a paper manufacturer, "to provide materials and services necessary to repair a tank located on [S.D. Warren's] premises in Muskegon[, Michigan]." Certification of Kate T. Gallagher ("Gallagher Cert."), filed Oct. 21, 1998, ¶ 3; see also Plaintiff's Rule 56.1 Statement of Material Facts ("Plaintiff's Statement"), filed Feb. 22, 1999, Ex. B (S.D. Warren Purchase Order purchasing Reco's repair services); Motion of Defendants, Skyhawk Transportation, Inc., and Mark Young, for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 ("Skyhawk's Motion"), filed Feb. 22, 1999, Ex D (General Agreement between S.D. Warren and Reco).

To complete the repair project, Reco sent Slater, as well as Larry Worsham, Alan North, James Largen, John Best, and Fred Croft, to the repair site. Worsham Dep. Tr. at 209. *fn2 Reco, through its subsidiary, American Galvanizing, also subcontracted with Skyhawk Transportation to deliver a load of steel plates, by tractor trailer, from Folsom, New Jersey, to the S.D. Warren plant in Michigan, for use in the repairs. See Gallagher Cert. ¶ 3; see also Plaintiff's Statement, Exs. C (Bill of Lading) & D (Skyhawk Transportation Invoice for American Galvanizing); Corson Dep. Tr. at 66-68.

Mark Young, who drove the Skyhawk Transportation truck that carried this load of steel to Muskegon, testified that when he arrived at the S.D. Warren premises at 7 a.m. on May 8, 1995:

[T]here was someone when I pulled in[to] the gate. An individual asked me who was I unloading for, and I said, RECO Construction. And he said, Pull over to the fence and when everybody gets here, they will come out and let you know where they want you to go. Young Dep. Tr. at 102.

Young waited between forty-five minutes and two hours for the Reco employees to tell him to move his truck so that the Reco repair crew could unload it. Id. at 110. Then, Young "pulled away from the spot where [he] was parked . . . . [He] pulled up. [He] circled around, and [he] proceeded back with the help of . . . two [Reco] guys." Id. at 127; see also Gallagher Cert. ¶ 3 ("When delivering the steel to the plant on May 8, 1995, [Young], the Skyhawk driver, with the help of one or two Reco [employees guiding him], backed the truck into the space where the steel was to be unloaded."); Young Dep. Tr. at 293 (testifying that he was driving the truck while Reco employees guided him). James Largen served as the "spotter" and directed Young as he backed the truck into the spot in which Reco employees would unload it. Largen Dep. Tr. at 57-59. The Reco spotters were guiding Young so that he would back his truck up to a large slate steel toolbox, or "gang box," that was adjacent to the tank that Reco had contracted to repair. See Slater Dep. Tr. at 151; see also Largen Dep. Tr. at 69, 72; Young Dep. Tr. at 149-50. Largen testified that he checked behind the truck twice and "didn't see nobody," but then "the steel got in [his line of vision, so he] was just going to let [Young] bump" the gang box back behind the truck. Largen Dep. Tr. at 63.

Unfortunately, as Young was driving the truck back towards the gang box, Slater was standing behind the truck "getting rods to put in the rod oven." Worsham Dep. Tr. at 228; see also Largen Dep. Tr. at 65-67, 74. Alan North, who was standing on the right side of the truck, noticed that Slater had been pinned between the truck and the gang box and "hollered at" Largen, who signaled to Young to stop and "back up." Id. at 66. Slater, according to Young and Largen, appeared hurt or in pain. See Largen Dep. Tr. at 75; Young Dep. Tr. at 204. Worsham, the head of the project for Reco, then drove Slater to the hospital. See Worsham Dep. Tr. at 274-75.

The parties dispute the manner in which Young backed up to the gang box. In his deposition, Young testified that he "could see out [the sideview] mirror" and that he could see two Reco "spotters" out his left window, directing him back into the spot. Young Dep. Tr. at 138, 192. Young also testified that he could see the people directing him through his mirror and by looking at them directly. See id. at 192. Young further testified that his view of the area behind the truck was completely blocked by the tank to his right and rear, see id. at 194, 196, but he continued to look in his right sideview mirror "a few times" anyhow. Id. at 194-95. Young's attempts to check his right sideview mirror did not assist him, because he "[couldn't] see nothing [sic] on [that] side." Young Dep. Tr. at 204. Young's line of vision was totally blind to the right and the rear. See id. at 203. As Young testified, "if there was somebody back there [behind the truck], I couldn't seem them. . . . My mirrors had full view of the tank. It was blind [behind the truck]." Id. at 202.

Young also described the precautions that he took before backing up his truck toward the gang box. Young testified that, while he did not have an audible beeper to sound while he drove in reverse, he believes that he did turn on flashing lights on the truck's trailer as he reversed. Id. at 130-31, 135. While Young could not see behind him, he had observed the area into which he was backing up before he started to move the truck. See id. at 139. In addition, Young knew that one of the Reco spotters "had a view of the back." Id. at 189. Young remembers that he probably told one of the spotters that he had no view of the right side of the truck. See id. at 283. Furthermore, Young testified that he had to rely on these spotters, because "once [he] entered the construction site, [he could] only do what they [Reco employees] allow me to do, so [he had] to obey their directions. [He] had no control over it." Id. at 283. He testified that he "was solely guided by the RECO staff employees" in determining how to operate his truck "from the time [he] stepped foot on that S.D. Warren plant until the time of the accident." Id. at 294.

Based on his version of the events, Young concluded that "Mr. Slater caused his own accident." Id. at 264. Young explained:

I'm being controlled by his [Slater's] two co-workers, and whether the truck had a beeper on it or not, air brakes make noise, and by me keeping my foot on the air brake, each time I let up to move, it releases. It makes noise. And I can't, for the life of me, see how he could have not heard it. Id. at 264 -65.

By contrast, James Largen, Young's "spotter," testified that Young watched him out of the left window "and never did look another way. If he'd have looked out his right hand mirror, he could have seen back there." Largen Dep. Tr. at 67. Largen added that he had "never seen [Young] looking at the right-hand mirror at all." Id. at 97. Largen repeated that if Young had looked out of his right sideview mirror "[h]e would have been able to see" Slater and "where he was backing up to." Id. at 98. Further, Largen contradicted Young's version of the events by testifying that Young had not activated his flashers while backing up toward the toolbox. Id. at 72. Largen, however, also had no idea "that anybody was in or around the gang box area." Id. at 73-74.

Moreover, Charles Skalsky, who, at the time of the accident, was the Safety and Health Manager for S.D. Warren, investigated the accident hours after it occurred. Skalsky Dep. Tr. at 19, 40-41. He testified that, based on his investigation, "the truck driver was at fault for not properly communicating with a spotter and possibly the spotter [sic] was a contributing factor in that they did not properly communicate with the truck driver." Id. 42.

Edward North, another member of the Reco repair crew, testified that, "years ago," he drove "a crane truck for Adams Construction Company." North Dep. Tr. at 143. North testified that when he drove this truck he checked both his left and his right sideview mirror when backing up. See id. at 143-44. Similarly, Skalsky testified that "it's the driver's responsibility to make sure that the communication [between the driver and the spotter] is clear, concise and so forth." Skalsky Dep. Tr. at 47.

Just as the parties disagree on the events of May 8, 1995, they also, not surprisingly, dispute the cause of the accident. Based on his interpretation of the summary judgment record, Slater claims, inter alia, that Young drove negligently, Skyhawk negligently failed to equip its trucks with an audible warning system for use while driving in reverse, and S.D. Warren negligently failed to maintain a safety plan and to ensure proper safety conditions. See Amended Complaint. Skyhawk, by contrast, claims that Young acted entirely under the direction and control of his Reco "spotters" and, as a result, the accident was caused by the negligence of Reco and its employees. See Third Party Complaint.


A. Motion to Dismiss

In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the Court may only dismiss a complaint if it appears certain that the plaintiff cannot prove any set of facts in support of his or her claims which would entitle him or her to relief. See, e.g., Ransom v. Marazzo, 848 F.2d 398, 401 (3d Cir. 1988). While all well-pled allegations are accepted as true and reasonable inferences are drawn in the plaintiff's favor, see, e.g., Gomez v. Toledo, 446 U.S. 635, 636 (1980), the Court may dismiss a complaint where, under any set of facts which could be shown to be consistent with a complaint, the plaintiff is not entitled to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Neitzke v. Williams, 490 U.S. 319, 326-27 (1989) (noting that this procedure "streamlines litigation by dispensing with needless discovery and factfinding").

"When deciding a motion to dismiss, it is the usual practice for a court to consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." City of Pittsburgh v. West Penn Tower Co., 147 F.3d 256, 259 (3d Cir. 1998). Thus, a court's reliance upon documents attached to the complaint does not transform a motion to dismiss into one for summary judgment. See id.

The Court's examination of documents or affidavits attached to a brief in support of a motion to dismiss, however, can transform a motion to dismiss into one for summary judgment. Rule 12(b) of the Federal Rules of Civil Procedure, however, provides that:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Fed. R. Civ. P. 12(b).

In support of its motion to dismiss, S.D. Warren filed the Certification of Kate T. Gallagher, Esq., accompanied by seven exhibits, including an excerpt of Slater's deposition testimony. In response to S.D. Warren's motion to dismiss, Slater filed the Certification of Gerald M. Eisenstat, Esq., accompanied by four exhibits, including excerpts from the deposition testimony of Kimm Miller and Charles Skalsky. I find that I cannot resolve the motion to dismiss without considering these certifications and the exhibits attached to them. I also find that, because both parties filed certifications and exhibits with their briefs in support of their respective positions, both parties have had a "reasonable opportunity to present all materials" pertinent to a motion for summary judgment. See Fed. R. Civ. P. 12(b). Accordingly, I will treat S.D. Warren's motion to dismiss as one for summary judgment.

B. Motion for Summary Judgment

A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Reitz v. County of Bucks, 125 F.3d 139, 143 (3d Cir. 1997); Hersh v. Allen Prod. Co., 789 F.2d 230, 232 (3d Cir. 1986). In deciding whether there is a disputed issue of material fact, the Court must view the underlying facts and draw all reasonable inferences in favor of the non-moving party. See, e.g., Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995); Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987).

Under the rule, a movant must be awarded summary judgment on all properly supported issues identified in its motion, except those for which the non-moving party has provided evidence to show that a question of material fact remains. Once the moving party has properly supported its showing of no triable issue of fact and of an entitlement to judgment as a matter of law, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) ("By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion . . . ; the requirement is that there be no genuine issue of material fact.") (emphasis in original).

What the non-moving party must do is "go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)); see also Lujan v. National Wildlife Fed., 497 U.S. 871, 888 (1990) ("The object of [Rule 56(e)] is not to replace conclusory allegations of the complaint . . . with conclusory allegations of an affidavit."); Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) ("[T]o raise a genuine issue of material fact . . . the [non-moving party] need not match, item for item, each piece of evidence proffered by the movant," but rather must exceed the "`mere scintilla' threshold."), cert. denied, 507 U.S. 912 (1993). If the non-moving party fails to oppose the motion by written objection, memorandum, affidavits and other evidence, the Court "will accept as true all material facts set forth by the moving party with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)).


A. Choice of Law

This Court has diversity jurisdiction, pursuant to 28 U.S.C. § 1332, over Slater's and Skyhawk's claims of negligence. In resolving a claim brought under the Court's diversity jurisdiction, "the law to be applied . . . is the law of the state." Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also Gasperini v. Center for the Humanities, Inc., 518 U.S. 415, 417 (1996) (holding that, under the Erie doctrine, "federal courts sitting in diversity apply state substantive law and federal procedural law"). In a case such as this, in which the plaintiff, a Virginia citizen, has filed suit against a New Jersey corporation and a New Jersey citizen, alleging injuries arising out of an accident that took place in Michigan, the Court must determine which state's law to apply.

"To make this choice of law, a federal court whose jurisdiction over a state claim is based on diversity, Klaxson Co. v. Stentor Electric Manufacturing Co.,[313 U.S. 487, 496-97 (1941)], must apply the conflicts of law principles of the forum state." Rohm & Haas Co. v. Adco Chem. Co., 689 F.2d 424, 429 (3d Cir. 1982). "Before a choice of law question arises, however, there must actually be a conflict between the potentially applicable bodies of law." Lucker Mfg. v. Home Ins. Co., 23 F.3d 808, 813 (3d Cir. 1994). Similarly, "the initial prong" of the New Jersey choice of law analysis "entails an inquiry into whether there is an actual conflict between the laws of the respective states, a determination that is made on an issue-by-issue basis." Gantes v. Kason Corp., 145 N.J. 478, 484 (1996).

At the outset, I must consider the statute of limitations periods in Michigan, New Jersey, and Virginia to resolve S.D. Warren's argument that Slater's claim against it, contained in the Amended Complaint, is time-barred. Under Michigan law, "[t]he period of limitations is 3 years after the time of the death or injury for . . . actions to recover damages for the death of a person, or for injury to a person or property." Mich. Comp. Laws Ann. § 600.5805(8). Under New Jersey law, "[every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued." N.J. Stat. Ann. § 2A:14-2. Under Virginia law, "every action for personal injuries, whatever the theory of recovery, . . . shall be brought within two years after the cause of action accrues." Va. Code Ann. § 8.01-243.A.

Despite the difference between the Michigan limitations period of 3 years and the New Jersey and Virginia limitations period of 2 years, there is no true conflict of laws. The cause of action accrued on May 8, 1995, the date of the accident. Slater amended his complaint, adding a claim against S.D. Warren on August 14, 1998 - over three years from the date of the accident. Thus, under all three statute of limitations periods, Slater's claim against S.D. Warren is time-barred, unless the amendment relates back to the filing of the original complaint, pursuant to Rule 15(c) of the Federal Rules of Civil Procedure. I will consider that question in the next section. See infra Section III.B.

Similarly, my review of the relevant standard of care and the bar against recovery from a co-employee under Michigan, New Jersey, and Virginia law, as set forth below, "shows that application of the law of each state to the facts of this case leads to the same outcome." See Rohm & Haas Co., 689 F.2d at 429. "Under general conflict of laws principles, where the laws of the two jurisdictions would produce the same result on the particular issue presented, there is a `false conflict' and the Court should avoid the choice-of-law question." Williams v. Stone, 109 F.3d 890, 893 (3d Cir. 1997) (applying the law of Maryland and Pennsylvania); see also Rohm & Haas Co., 689 F.2d at 429 ("When such a `false conflict' exists, New Jersey conflicts of law rules permit the resolution of the case without a choice between the laws of the [three] states."); State Farm Automobile Ins. Co. v. Estate of Simmons, 84 N.J. 28, 41 (1980) (same). Indeed, the United States Court of Appeals for the Third Circuit, in Melville v. American Home Assur. Co., 584 F.2d 1306 (3d Cir. 1978), "warn[ed] courts to avoid dicta on conflicts questions when not put in issue." Lucker Mfg. v. Home Ins. Co., 23 F.3d 808, 813 (3d Cir. 1994) (citing Melville, 584 F.2d at 1311 n.7). Accordingly, I will apply the laws of Michigan, New Jersey, and Virginia to the issues presented by the parties in their respective motions.

B. Slater's Claim Against S.D. Warren and Slater's Cross Motion to Amend Nunc Pro Tunc

As S.D. Warren notes, and Slater does not dispute, Slater's claim asserted against S.D. Warren, contained in the Amended Complaint, is barred by the statute of limitations for personal injury actions under Michigan, New Jersey, and Virginia law. See Mich. Comp. Laws Ann. § 600.5805(8) (three year statute of limitations); N.J. Stat. Ann. § 2A:14-2 (two year statute of limitations); Va. Code Ann. § 8.01-243.A (two year statute of limitations). Slater's cause of action accrued on May 8, 1995, the date of the accident, and he did not attempt to assert a claim against S.D. Warren until August 14, 1998. See Amended Complaint, Count Two, filed Aug. 14, 1998; see also Plaintiff's Claim Against Third Party Defendant, S.D. Warren Paper Company Pursuant to [Fed. R. Civ. P.] 14, filed Aug. 14, 1998.

In response, Slater argues that he did not discover his claim against S.D. Warren until the summer of 1998. See Brief in Opposition to S.D. Warren Company's Motion to Dismiss Plaintiff's Complaints and For Sanctions and in Support of Plaintiff's Cross Motion for Leave to Amend Complaint Nunc Pro Tunc ("Plaintiff's Brief in Opposition to Motion to Dismiss"), filed Oct. 21, 1998, at 3-4. Specifically, he claims that the depositions of Kimm Miller, on June 30, 1998, and of Charles Skalsky, on August 19, 1998, for "the first time [provided] evidence, implicating [S.D.] Warren on a negligence theory." Id. In essence, Slater argues that the discovery rule should apply in this case.

"The discovery rule was developed to avoid the `harsh results that would otherwise flow from the mechanical application' of the statute of limitations." Gallagher v. Burdette-Tomlin Med. Hosp., 318 N.J. Super. 485, 492 (N.J. Super. Ct. App. Div. 1999) (quoting Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 426, (1987)). "The discovery rule delays the accrual of a cause of action until `the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.'" Baird v. American Med. Optics, 155 N.J. 54, 66 (1998) (quoting Lopez v. Swyer, 62 N.J. 267, 272 (1973)); accord Jackson County Hog Producers v. Consumers Power Co., No. 197916, 1999 WL 80021, at *1 (Mich. Ct. App. Feb. 12, 1999) (holding that, under the discovery rule, "a claim does not accrue for limitations period purposes until the plaintiff discovers, or through the exercise of reasonable diligence should have discovered (1) an injury and (2) the causal connection between the injury and the defendant's breach of duty"). But see Professionals I, Inc. v. Pathak, 1998 WL 966136, at *4 (Va. Cir. Ct. Dec. 14, 1998) ("Virginia's `discovery rule' only applies to a very narrow class of actions, including fraud and mistake.") (citing Va. Code Ann. § 8.01-249(1)). "The question is whether the plaintiff `knew or should have known of sufficient facts to start the statute of limitations running.'" Gallagher, 318 N.J. Super. at 493 (quoting Mancuso v. Neckles, 316 N.J. Super. 128, 134, (N.J. Super. Ct. App. Div. 1998) (quoting Baird, 155 N.J. at 72)); accord Jackson County Hog Producers, 1999 WL 80021, at *2 ("The test to be applied in determining when a cause of action accrued is an objective one, based on objective facts, and not on what a particular plaintiff subjectively believed.").

Slater has not demonstrated that, through the exercise of reasonable diligence, he could not have discovered the existence of his claim against S.D. Warren. At the moment the accident occurred, Slater knew the identity of S.D. Warren and, as a result, Slater, or his counsel, had ample opportunity to investigate the possibility of asserting a claim against S.D. Warren well before the expiration of the statute of limitations period. The failure of Slater to discover his claim against S.D. Warren can only be attributed to a lack of diligence. Thus, the discovery rule does not apply.

Furthermore, Slater's arguments strain credulity. Slater suggests that during the deposition of Charles Skalsky, taken on August 19, 1998, he learned for "the first time" of the claim that he asserted against S.D. Warren in his Amended Complaint, filed on August 14, 1998. Plaintiff's Brief in Opposition to Motion to Dismiss at 4. That notion is clearly ridiculous. In addition, Slater presents excerpts from the depositions of Kimm and Skalsky, see Eisenstat Cert., Exs. A & B, however, the excerpts do not reveal any information that Slater learned through these depositions. Considering that Slater's claim against S.D. Warren substantially mimics the claim asserted by Skyhawk against S.D. Warren in its Third Party Complaint, there is no reason to believe that Slater learned anything in these depositions that he did not already know, or that he could not have learned with minimal diligence. Clearly, the discovery rule does not apply in this case.

In an attempt to breathe life back into his moribund claim against S.D. Warren, Slater argues that the Amended Complaint relates back to the date of the filing of the original complaint, pursuant to Rule 15(c) of the Federal Rules of Civil Procedure. See Plaintiff's Brief in Opposition to Motion to Dismiss at 5-9. Rule 15(c) provides, in relevant part:

An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or . . . (3) the amendment changes the party or the naming of the party against whom a claim is asserted if . . . within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) 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. Fed. R. Civ. P. ...

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