thomas h. murphy winter 2017

46 Trial Journal Volume 19, Number 1 l Winter 2017

Ideally, when fi ling the original complaint, you have identifi ed and named all defendants who are or could potentially be responsible for your client’s injuries. In reality though, the need to add newly discovered defendants often arises during litigation, either through mistake or, inadvertence, or because of other factors simply beyond your control that are fi rst revealed in discovery. Maybe time simply did not permit ample opportunity to fully investigate before a statute of limitations expired and suit had to be fi led, or the current defendants devised a maze of corporate shells to hide assets behind obscure subsidiaries that could only be exposed through discovery. If the applicable statute of limitations has not expired, the solution is simple: present a motion for leave to fi le an amended complaint naming the newly identifi ed person or entity as a defendant. The current defendants will rarely challenge the addition of new defendants and will have little basis to do so if the motion to amend is made within the time set by the court for amending pleadings, and the newly added defendant will have no basis to challenge the amended pleading. Unfortunately, often the statute of limitations has expired, making the outcome of any attempted amendment uncertain and the path to overcoming a pleading challenge more complicated. The newly named defendant will almost certainly fi le a motion to dismiss the amended complaint as time-barred. To defeat the motion to dismiss, you must be able to establish that the amended complaint “relates back” to the original complaint. A fi rm grasp on the current

state of the law on this issue will be essential to defeating the motion to dismiss. Fortunately for plaintiffs faced with this dilemma, the standards associated with the relation back doctrine have recently been relaxed. In 2002, the Illinois statutory requirements to establish that an amended complaint adding a new party relates back to the original complaint changed to more closely refl ect federal law. Because of the statutory amendment and a watershed ruling by the United States Supreme Court, Illinois courts have become more permissive to amendments. The most signifi cant development in the state and federal case law has been the shift from a focus on what the plaintiff knew at the time of fi ling the original complaint to instead what the new defendant knew or should have known during that relevant time period. Zlatev v. Millette is the most recent example of the Illinois courts’ more liberal treatment of plaintiffs’ attempts to add new parties after the statute of limitations has expired.1 The legislative history of Illinois’ relation back statute provides a blueprint for the case law’s current trend. The statute covers not only the addition of new parties but also other amendments such as adding new claims.2 The Zlatev court addressed the amendment of a new party, governed by Section 616(d), which is the focus of this article. The current version of Section 616(d) provides in pertinent part:

d) A cause of action against a person not originally named a defendant is not barred by lapse of

time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) the person, within the time that the action might have been brought or the right asserted against him or her plus the time for service permitted under Supreme Court Rule 103(b), received such notice of the commencement of the action that the person will not be prejudiced in maintaining a defense on the merits and 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 or her; and (3) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person

by Thomas H. Murphy

adding a new party continued on page 48


adding a new party continued from page 46

as a defendant relates back to the date of the fi ling of the original pleading so amended.3

The Illinois legislature’s 2002 revision of Section 2-616 (d) relaxed the standard for plaintiffs to add defendants after the applicable statute of limitations as to the newly added defendants had expired.4 Lawmakers removed the “inadvertence” requirement with the goal of tracking Federal Rule of Civil Procedure 15(c)(1)(C).5 The statutory change in effect established that the federal cases that addressed relation back would serve as precedent for Illinois cases on the issue. As a result, Illinois courts look to Rule 15 and the federal decisions that interpret it when faced with disputes over the relation back doctrine pursuant to Illinois’ 2-616(d).6

e United States Supreme Court’s Decision in Krupski v. Costa Crociere S.p.A Given the Illinois courts’ deference

to the federal courts on relation back, the most important case on the issue is Krupski v. Costa Crociere S.p.A.7 In Krupski, the United States Supreme Court addressed the split among the federal courts of appeal on the relation back doctrine and ruled in favor of the plaintiff by allowing an amendment. The plaintiff in Krupski, a passenger on a cruise ship who sustained an injury on board, sued both a sales agent for the carrier and the putative carrier, Coaster Cruise Lines, the entity whose name and address was listed on the front and back of the passenger ticket. The actual carrier was Costa Crociere S.p.A, which was also listed on the back of the ticket.8 The plaintiff fi led the complaint against Costa Cruise Lines only shortly before the statute of limitations expired. The passenger alleged that Coasta Cruise Lines owned, operated, managed, supervised and controlled the subject ship. Over the next several months – after the limitations period had expired – Costa Cruise revealed Costa Crociere S.p.A. as the carrier

to the plaintiff on three separate occasions.9 First, in its answer to the original complaint, Costa Cruise Lines denied that it was the proper party defendant as it was only a sales agent for Costa Crociere S.p.A.10 Next, in a corporate disclosure, it listed S.p.A. as the interested party. Finally, it reiterated that Costa Crociere S.p.A. was the carrier in a motion for summary judgment.11 The plaintiff nevertheless did not fi le an amended pleading naming Costa Crociere S.p.A. until approximately fi ve months after fi ling the initial complaint. The Kruspski trial court dismissed the amended complaint on the ground that it was untimely and the 11th Circuit affi rmed. It held that the amended complaint did not relate back to the fi ling of the original complaint because the plaintiff knew or should have known the correct defendant’s identity based on the information obtained on the ticket. The 11th Circuit reasoned that the plaintiff named Coaster Cruise Lines deliberately, not by “mistake” under Rule 15(c). Moreover, the

Volume 19, Number 1 l Winter 2017 Trial Journal 49


11th Circuit cited the plaintiff ’s lack of diligence in fi ling an amended complaint as a bases for its ruling.12 The United States Supreme Court overruled the 11th Circuit’s decision.13

First, the Supreme Court began by rejecting, as inconsistent with 15(c)’s focus, the 11th circuit’s conclusion that the plaintiff had not made a mistake within Rule 15(c) simply because the plaintiff either knew or should have known of the correct defendant’s identity before fi ling suit. The Supreme Court stated, “15(c) asks what the prospective defendant knew or should have known during the relevant period, not what the plaintiff knew or should have known at the time of fi ling the complaint.”14 The Supreme Court held that the plaintiff ’s knowledge or conduct is of little relevance in determining whether a claim relates back. The Supreme Court refused to construe narrowly the reference to “a mistake concerning the proper party’s identity.” Rather, the Supreme Court defi ned the term “mistake”

broadly as “an error, misconception, or misunderstanding; an erroneous belief.”15 It stated, “[t]hat a plaintiff knows of a party’s existence does not preclude her from making a mistake with respect to that party’s identity.”16 The Supreme Court reasoned that the complaint made clear that [the passenger] meant to sue the company that owned and operated the ship. The court found that Costa Crociere S.p.A. should have known that it was not named as a defendant originally only because of a misunderstanding about which “Costa” entity was in charge of the ship-clearly a “mistake concerning the proper parties identity.”17 The Supreme Court explained that its broad interpretation of the term “mistake” was necessary to give effect to the purpose of the relation back doctrine: The Supreme Court stated,

“This reading is consistent with the purpose of relation back: to balance the interests of the defendant protected by the statute of limitations with the preference

expressed in the Federal Rules of Civil Procedure in general, Rule 15 in particular, for resolving disputes on their merits. A prospective defendant who legitimately believes that the limitations period had passed without any attempt to sue him has a strong interest in repose. But repose would be a windfall for a prospective defendant who understood, or should have understood, that he escapes suit during the limitations period only because the plaintiff misunderstood a crucial fact about his identity.”18

The Supreme Court also rejected the 11th Circuit’s reliance on the plaintiff ’s lack of diligence in amending the complaint to support its decision to deny the amendment. The Supreme Court explained that “the Rule mandates relation back once the Rule’s requirements are satisfi ed; it does not leave the decision whether to grant relation back to the court’s equitable



discretion.19 The Court emphasized that the plaintiff ’s conduct or speed in which he or she moves to amend has no bearing on whether the complaint relates back.20

Maggi v. RAS Development, Inc. The Illinois courts now apply the relation back doctrine as our nation’s Supreme Court does. In Maggi, the appellate court specifi cally followed Krupski and applied the same analysis in allowing a plaintiff to add a new party under Section 2-616.21 Indeed, the Maggi court solidifi ed the precedent in Illinois that the issue of whether the amendment can relate back hinges on the defendant’s knowledge, not the plaintiff ’s. In Maggi, the plaintiff ’s family fi led a wrongful death case stemming from a construction site incident. A jury returned a verdict against a defendant general contractor RAS Development (“RAS”), who plaintiff sued with an amended complaint only

after the applicable four year statute of limitations had expired. The plaintiff dropped the entity previously thought to be the general contractor upon fi ling the amended complaint. The RAS defendant appealed the judgment and appealed the trial court’s original denial of its motion to dismiss. RAS argued that the plaintiffs should have known that it was the general contractor when they fi led the original complaint. The fi rst district affi rmed the trial court’s decision to allow the case to proceed against RAS even though the applicable statute of limitations expired at the time of fi ling the amended complaint.22 The Maggi opinion, written by Justice Terrence Lavin, fi rst addressed the distinction between misnomer and mistaken identity. In the case of misnomer, the relation back doctrine would automatically apply, and the amended complaint naming the proper defendant would be considered fi led upon the fi ling date of the original complaint, without further analysis.23 In contrast, in a case of mistaken

identity, the court needs to analyze the three factors provided in section 2-616(d) to determine whether a plaintiff ’s amended complaint relates back.24 The Maggi court explained that whether a case involves mistaken identity or misnomer depends on the intent of the plaintiff as established by the plaintiff ’s objective manifestations of that intent is contained in the record. “The most probative evidence of whom the plaintiff intended to sue is the party named in the complaint.”25 “If the named party in fact exists but is not a real party in interest, a court can conclude that the plaintiff has mistakenly sued the wrong party.”26 The Maggi court determined that the case before it was clearly a case of mistaken identity and analyzed the case accordingly. The Maggi court reiterated that what plaintiff actually knew or should have known is irrelevant based on the specifi c language of 2-616(d).27 Referring to Krupski, the Maggi court clarifi ed that for purposes of relation


back, the question is whether the proper defendant knew or should have known that it would have been named as a defendant but for an error.28 The Maggi court also found Krupski particularly applicable to the case before it because, as in Krupski, the defendants in Maggi were related corporate defendants with similar names, “one of whom surely contributed to the confusion.”29 Other than receiving formal service of a complaint, the RAS defendant was as aware of the original complaint as the related defendants who plaintiff originally sued.30

The Maggi court further referenced Krupski’s direction to balance the respective parties’ positions with a preference – expressed in the Federal Rule 15 – to resolve disputes on their merits.31 Also, just as the Supreme Court did in Krupski, the Maggi court rejected the defendant’s attempt to dismiss the amended complaint because the plaintiff was not diligent in fi ling the amendment.32 The Maggi court stated

that the Supreme Court made it clear in Krupski that a plaintiff ’s diligence is not a factor enumerated in Federal Rule 15(c). The Maggi court confi rmed that the plaintiff ’s diligence is likewise not a factor in Section 2-616(d).

Borchers v. Franciscan Tertiary Province of the Sacred Heart, Inc. The same year as the Maggi decision, Illinois’ Second District Court of Appeals also followed Krupski in Borchers v. Franciscan Tertiary Province of the Sacred Heart, Inc.,33 where a former employee sought to add two individuals as defendants in an employment discrimination case after the applicable statutes of limitations had expired.34 The plaintiff had originally sued her former employer and “unknown persons” for accessing her personal email account, only later learning that two specifi c individuals were responsible for the conduct at issue.35 The defendants brought a motion to dismiss which the trial court granted fi nding that the plaintiff ’s

amended complaint did not relate back because the individual defendants were known to the plaintiff at the time that she fi led suit. The appellate court reversed as to one of the individual defendants, holding that under Krupski, the amended complaint related back to the original complaint, as “the plaintiff ’s failure to name [the two individuals] in her initial complaint was a “mistake” derived from her lack of knowledge about the nature of their involvement.36 The Borchers Court stated that in construing Section 2-616(d), it must interpret the language liberally, bearing in mind the jurisprudential policy that claims should be decided on their merits if possible. The Borcherscourt stated, “This policy suggests that we should select the construction of §2-616 that would lead to resolution on the merits.”37 The appellate court further explained that, previously, the federal courts of appeals were divided as to whether the relation back doctrine



embodied in Rule 15(c) could be applied to situations outside of the quintessential case of misnomer or mistaken identity. The Borchers court reiterated the Maggi court’s interpretation of Krupski and the impact the removal of the inadvertence requirement has on the analysis. The Borchers court ruled that “in light of these policies, Rule 15(c) [and therefore 2-616(d)] must be understood to freely permit amendment of pleadings and relation back so long as the policies of statute of limitations have been effectively served.”38

The Borchers case further confi rms that any attempts by newly named defendants to assert that a plaintiff ’s lack of diligence in amending a complaint bars the amendment should be rejected. The defendant in Borchers argued that by waiting four months after learning of the new defendants, the plaintiff did not exercise diligence and therefore the requirements of section 2-616(d) could not be satisfi ed. The Borchers court explained that, when the Illinois legislature amended section 2-616(d) to mirror Federal Rule 15(c), it rendered the plaintiff ’s diligence virtually irrelevant just as the Supreme Court has determined.39 The Borchers court addressed in depth the most contentious requirement for relation back – notice. The defendants in Borchers argued that because plaintiff did not serve them with any notice, she failed to satisfy requirement (2) of Section 2-616(d) – notice of the suit within the limitations period.40 One of the newly added defendants argued that she only knew of the suit in and around the time that she was deposed about seven months after the statute of limitations had expired and before the plaintiff amended her complaint. She argued that she was not part of the employer’s management and therefore knew nothing of the suit when it was fi rst commenced. The plaintiff responded that, even if that defendant did not

have actual notice of the suit until later, she had constructive or imputed knowledge because she was employed by the defendant employer which did have timely notice of the suit and is represented by the same attorneys that represented said employer. Again, the Borchers court turned to federal precedent for guidance. Borchers relied on federal courts, which have held that, “where the named defendant and the prospective defendant are closely related and also share the same attorney, that attorney’s knowledge of the suit may be imputed to the prospective defendant under certain circumstances.41 Borchers follows the logic of the federal courts’ interpretation of Rule 15(c) in that – “notice” for purposes of Rule 15(c) – is not the same as service of a complaint, and may be satisfi ed by knowledge gained by informal means.”42 However, because one of the newly added defendants was a nonmanagerial employee whose awareness of the suit could not be presumed from the employer’s knowledge, the court granted her motion to dismiss.43 In contrast, the other individual defendant was involved early on in defending the case and answering discovery. The court found that noticed was established as to that defendant.44

Zlatev v. Millette This brings us back to the Zlatev case, the most recent example of the Illinois courts’ evolution in how it applies the relation back doctrine.45 In Zlatev, certain tenants in an apartment building were involved in a fi ght which resulted in plaintiff ’s personal injuries. The plaintiff added a new defendant after the statute of limitations expired. The diffi culty the plaintiff encountered in naming the proper defendant arose from the fact that he could not identify who hit him during the melee. A police report identifi ed the assailant as “male, white, 22 years old, 5’7” to 5’8”, 170 pounds, short blonde hair and wearing a red shirt.” The plaintiff

fi led his original complaint naming certain defendants and later amended the complaint adding an additional individual as a new party defendant. The plaintiff fi led various amended complaints adding other individuals as defendants. Well after the statute of limitations had expired, the plaintiff fi led the pleading at issue - a fourth amended complaint alleging in the alternative [to the other previously named defendants] that an individual named Grant Millett was the party who struck him.46

Millett moved to dismiss the complaint based on a statute of limitations, arguing that there was no mistake in identity because the plaintiff did not remove the original defendants from the complaint. The trial judge denied Millett’s motion to dismiss but certifi ed two questions for interlocutory appeal. They were: (1) whether an amended complaint relates back to the original complaint if the original defendants remain as defendants; and the charges are the same; and, (2) whether the plaintiff ’s lack of knowledge regarding a party’s identity – or, for that matter, a lack of knowledge regarding a known party’s involvement in events giving rise to the cause of action – may constitute mistake under 2-616(d).47 The Zlatevcourt answered yes to both questions.48

In specifi cally following Krupski, the Zlatev court noted Krupski’s importance on the issue of relation back and focused on what the party to be added [as a defendant] knew or should have known, not in the amending party’s knowledge or timeliness in seeking to amend the pleading.” The Zlatev court stated that it was irrelevant that other defendants remained in the case and were not dismissed when the plaintiff fi led his fourth amended complaint, so long as the defendant either knew or should have known that he escaped suit only because the plaintiff was mistaken about his identity. The appeals panel fi rmly asserted that a lack of




knowledge about an identity “certainly may constitute a mistake concerning the identity of the proper party.”49 The Zlatev case is interesting because it arguably goes beyond even Maggi or Borchers. It is important to remember that the case law has shifted to the defendants’ knowledge of a claim at the time of fi ling the original complaint. When the newly added defendant is merely another business entity closely related to a current party and is hiding behind a shadow designation or is an employee of an entity already a party defendant, the plaintiff can often establish notice by at least informal means. Nevertheless, the notice requirement is still strictly enforced, as demonstrated by the appellate court‘s favorable treatment of one of the defendants in Borchers. But the defendant in Zlatev was just one of several persons involved in a street fi ght. There was no cited evidence that he knew that a complaint had been fi led. The Zlatev court simply found that if he did not know of the complaint, he should have known that the

plaintiff meant to sue him.50 According to the court, that factor alone satisfi ed the notice requirement pursuant to 2-616(d).51 Given the liberalizing trend of Illinois courts on the scope of the relation back doctrine, you would be doing your client a great disservice if you assumed that you could not add as an additional defendant a person or entity that you discovered to be culpable after the statute of limitations had expired. While your attempt to add another defendant is likely to be met with a motion to dismiss, the recent authority considered here provides you with more ammunition than ever before to defeat the challenge. In surmounting that challenge, it is worth pointing out to the judge that the standards governing the relation back doctrine have been relaxed by the Supreme Court and Illinois courts because of their adherence to the fundamental preference that disputes be decided on their merits.

Endnotes1 43 N.E.3d 153, 2015 Ill. App (1st) 143173 (2015).2 See 735 ILCS 5/2-616 (West 2002). Amendments (a), (b), (c) and (e).3 735 ILCS 5/2-616(d) (West 2002).4 735 ILCS 2-616 (West 1991). Amendments (a) At any time before fi nal judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing any party, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or to assert a cross claim.(d) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action


may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a benefi ciary; (4) the person, within the time that the action might have been brought or the right asserted against him or her knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the

amended pleadings grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the fi ling of the original pleading so amended. 5 (a) AMENDMENTS BEFORE TRIAL (c) RELATION BACK OF AMENDMENTS (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: (C) the amendment changes the

party or the naming of the party against whom a class is asserted, if Rule 15(c)(1)(B) is satisfi ed and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.6 Polites v. U.S. Bank Nat. Ass’n, 361 Ill. App. 3d 76, 836 N.E.2d 133 (2005).7 560 US 538, 130 S.Ct. 2485 (2010)8 “Crociere” means cruise in Italian. Cassel’s Italion Dictionary 137, 670 (1967)9 Id.10 Id.11 Id. 12 Id.13 Id.14 130 S.Ct. at 2494 (2010).15 Krupski, 130 S.Ct. at 2494 (quoting Black’s Law Dictionary 1092 (9th



ed.2009) (Emphasis added).16 Id.17 Id. at 2497.18 Id. at 2494.19 Id. 20 Id. at 2496-7. 21 Maggi v. RAS Development, Inc., 2011 IL App. (1st) 091955, 949 N.E.2d 731 (1st Dist. 2011)22 Id.23 Id. at 740, citing Fassero v. Turigliatto, 349 Ill. App. 3d 368, 380 (4th Dist. 2004)24 Id.25 Id. 26 Id.27 Maggi, 2011 IL App. (1st) 091955 at ¶2828 Id. at 745.29 Id. at 743.30 Id. at 745.31 Id. at 745.32 Id. 33 2011 Ill.App.2nd 101257, 962

N.E.2nd 29, (2nd Dist. 2012)34 Id.35 Id.36 Id.37 Id. at 46.38 Id. at 48.39 Id. at 51.40 735 ILCS 5/2-616(d)(2) (West 2002) The person, within the time that the action might have been brought or the right asserted against him or her plus the time for service permitted under Illinois Supreme Court Rule 103(b), received such notice of the commencement of the action that the person will not be prejudiced in maintaining a defense on the merits and 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 or her. 41 Id. at 50.42 See Singletary v. Pennsylvania Department of Corrections, 266 F.3d 186,

195 (3d Cir. 2001).43 Id. at 51.44 Id. at 51.45 Zlatev, 43 N.E.3d 153 (First Dist. 2015).46 Id.47 Id. at 154.48 Id.49 Id.50 Id. at 160. 51 Id.

omas Murphy is a partner at the law � rm of Cogan & Power P.C. His practice focuses on catastrophic injury cases, wrongful death and medical malpractice. He obtained his juris doctor from John Marshall Law School, cum laude and his undergraduate degree from the University of Arizona.