What You Need to Know About Relation Back of Amendments

When we say that an amendment to a pleading “relates back” to the filing of the original pleading, we are simply saying that we are going to pretend that the new allegations appeared in the original document, even though they didn’t. The reason for this concept, and indeed the only reason that anyone would care whether an amendment relates back, is the statute of limitations. If a party, almost always a plaintiff, seeks to amend his or her pleading before the statute of limitations runs, he or she doesn’t need anything to relate back. It is only when the original pleading was filed before the statute ran, and later, after the statute has run, the party wishes that the original complaint had included other or different allegations that the concept of relation back saves the day. Of course, there may be other times when a litigant will wish that he or she had said something sooner, such as when a defendant wishes to amend an answer to include a defense. Defenses don’t have statutes of limitation, however, and so the issue becomes one of the timing of an amendment and prejudice to the opposing party. Relation back doesn’t come into play.

There are two basic categories of allegations that a party might want to add to his or her pleading: (1) new claims or factual allegations against an existing defendant, or (2) claims against a different or additional defendant. Both can relate back, but the rules are different, and they also vary between federal court and the Virginia state courts.

Federal Court

Amendments in federal cases are governed by Rule 15 of the Federal Rules of Civil Procedure, which provides in pertinent part as follows:

Rule 15. Amended and Supplemental Pleadings

(a)        Amendments Before Trial.

(1)        Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

(A)       21 days after serving it, or

(B)       if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2)        Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

(3)        Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

. . .

(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:

(A)       the law that provides the applicable statute of limitations allows relation back;

(B)       the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out–or attempted to be set out–in the original pleading; or

(C)       the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied 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.

Amendments to add allegations of fact, claims, and theories of recovery are the least complex. Basically, if the new allegations or claims arise out of the same operative facts as did the claims in the original complaint, they relate back. If, for instance, an original complaint contains allegations of medical malpractice, and a plaintiff later wishes to sue for medical battery based on the same treatment, the new claims would relate back to the date of the filing of the old claims, notwithstanding the fact that the statute of limitations might have run in the interim. Similarly, a new claim of fraud would likely relate back to the date of an original claim for breach of contract, if the same actions on the part of the defendant gave rise to both. On the other hand, if the original complaint claims that the defendant breached a contract on August 1, 2015, allegations that the same defendant breached a different contract, or breached the same contract on October 1, 2015, probably would not relate back. If the statute for the second claim had run as of the time of the amendment, the second claim would likely be barred.

The issue becomes more complex and the rules become much more technical when a plaintiff wants to add a defendant, or substitute a new defendant for the old one. Concepts such as due process dictate that the statute of limitations can’t just be suspended indefinitely, and so the ability to add a defendant or switch defendants must have some limits, and those limits must be closely tied to the statute of limitations itself. The basic rule in federal court is set out in Rule 15(c) above, and can be summarized as follows: if the “new” defendant got notice of the lawsuit within the time established by the rules for serving a complaint, and knew or should have known that, but for a mistake, he, she, or it should have been sued, then a later amendment to either add the “new” defendant or substitute the “new” defendant for the old one will relate back, regardless of whether the statute of limitations has run. In other words, the statute of limitations is extended a bit, and can be tolled by notice, rather than by an actual claim. The actual claim can be made later. The question of how much later is governed by the usual Rule 15 analysis, which looks at things like prejudice, delay, fairness, etc.

There are all sorts of issues hidden here. First, the time for serving a complaint has recently been changed, from 120 days to 90 days, per Rule 4(m). Second, the party seeking to amend has to show that the “new” defendant had notice, which could be difficult in some circumstances. The easiest way to show notice is to simply have the potential defendant served with the complaint, but unless the plaintiff is very diligent and knows beforehand that the defendant he or she has sued might turn out to be the wrong one, it seems unlikely that this will happen very often. Further, the notice must be of the lawsuit, not just the claim or the events that give rise to the lawsuit. For instance, notice that there was a car accident would be insufficient; the amending party would have to show that the “new” defendant had notice of the fact that there was a lawsuit about the car accident.

Another issue arises from the use of the word “mistake” in the rule. It is fairly well‑settled that the requirement of a “mistake” means that relation back does not work when a plaintiff consciously decides not to sue a known defendant for strategic reasons. It is less clear whether the requirement of a “mistake” means that relation back can only be used to substitute the “right” defendant for the “wrong” one, or whether the rule allows the addition of another “right” defendant, while keeping the original defendant in the case. The case law seems to indicate that the rule can be used in either circumstance.

Finally, there seem to be some mysteries as to when the 90-day period starts to run. It is easy enough to figure this out in a case involving only one original complaint that is timely served, and a plaintiff attempting to make his or her first amendment. But what if the original defendant is not served within the 90-day period, but the court allows an additional period? The answer is that the “notice” period for the “new” defendant is also extended.

Similarly, what if the original complaint is filed on January 1 against Defendant A, a first amended complaint is filed on July 1 against Defendant B, and then plaintiff later wishes to take advantage of relation back to add Defendant C? Does the time period run from January 1 or July 1? Does it make a difference whether the mistake was made in January or July? Which complaint must Defendant C have had notice of? At least one treatise says that a new “notice” period starts to run with each amendment, meaning that each amendment carries with it an additional 90-day window in which to give notice to a potential new defendant. But, logically, this can’t be correct. If it were, then a plaintiff could file an amended complaint naming a new defendant, and simply serve that defendant within 90 days. It would then be easy to show that the “new” defendant had actual knowledge of the lawsuit within the required time. This would mean that the statute of limitations could theoretically be extended forever. It does not appear that any court has ever addressed this question, nor have the commentators to the rules.

Finally, what if a complaint is filed, voluntarily dismissed, and then re-filed? Does the notice period run from the original filing, or the new filing? One would guess that it runs from the new filing, but, again, it does not appear that any court has addressed this question.

In an effort to avoid the opportunity to lose these or similar issues before the United States Supreme Court, litigants should follow what we all know are the best practices: investigate claims thoroughly, file suit well in advance of the statute of limitations, and if any issue arises as to the correct identity of the defendant, make sure that all potential defendants are sued, or at least given actual notice of the lawsuit before the time period runs. Of course, this is easier said than done.

Virginia State Court

The basic rule on amendments in Virginia is:

Rule 1:8. Amendments: No amendments shall be made to any pleading after it is filed save by leave of court.

The rule on relation back of allegations against an existing defendant is roughly the same as in federal court. The rule itself is as follows:

Va. Code § 8.01-6.1. Amendment of pleading changing or adding a claim or defense; relation back
Subject to any other applicable provisions of law, an amendment of a pleading changing or adding a claim or defense against a party relates back to the date of the original pleadings for purposes of the statute of limitations if the court finds (i) the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, (ii) the amending party was reasonably diligent in asserting the amended claim or defenses, and (iii) parties opposing the amendment will not be substantially prejudiced in litigating on the merits as a result of the timing of the amendment. In connection with such an amendment, the trial court may grant a continuance or other relief to protect the parties. This section shall not apply to eminent domain or mechanics’ lien claims or defenses.

The latest guidance on this general concept from the Supreme Court of Virginia came in McKinney v. Va. Surgical Assoc., P.C., 284 Va. 455, 732 S.E.2d 27 (2012). The issue in McKinney was whether claims made a complaint filed after a nonsuit were the same as the claims made in the original suit, so as to take advantage of the 6-month savings period. The court held that all claims arising from the same “cause of action” are functionally the same for purposes of the nonsuit rules. It stated that a “cause of action” is the facts and circumstances which give rise to the various “rights of action.” Thus, a survival action for medical malpractice and a wrongful death claim, while separate “rights of action,” arose from the same facts, and thus were the same “cause of action.” There appears to be no reason why the court would not apply the same test with regard to relation back amendments.

When it comes to adding or substituting defendants, Virginia has two statutes. The first, Va. Code § 8.01-6, tracks the federal rule except in a few regards. The most important is that the “new” defendant had to have notice of the claim before the statute of limitations ran, as opposed to within the statute plus the time to serve the complaint. In theory, this could be about 89 days shorter than would be allowed in federal court. The statute reads as follows:

Va. Code § 8.01-6. Amending pleading; relation back to original pleading

A misnomer in any pleading may, on the motion of any party, and on affidavit of the right name, be amended by inserting the right name. An amendment changing the party against whom a claim is asserted, whether to correct a misnomer or otherwise, relates back to the date of the original pleading if (i) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading, (ii) within the limitations period prescribed for commencing the action against the party to be brought in by the amendment, that party or its agent received notice of the institution of the action, (iii) that party will not be prejudiced in maintaining a defense on the merits, and (iv) that party knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against that party.

The second Virginia statute on point is Va. Code § 8.01-6.2, which provides as follows:

Va. Code § 8.01-6.2. Amendment of pleading; relation back to original pleading; confusion in trade name

(A) A pleading which states a claim against a party whose trade name or corporate name is substantially similar to the trade name or corporate name of another entity may be amended at any time by inserting the correct party’s name, if such party or its agent had actual notice of the claim prior to the expiration of the statute of limitations for filing the claim.

(B) In the event that suit is filed against the estate of a decedent, and filed within the applicable statute of limitations, naming the proper name of estate of the deceased and service is effected or attempted on an individual or individuals as executor, administrator or other officers of the estate, such filing tolls the statute of limitations for said claim in the event the executor, administrator or other officers of the estate are unable to legally receive service at the time service was attempted, or defend suit because their authority as executor, administrator or other officer of the estate excludes defending said actions, or their duties as executor, administrator or other officer of the estate had expired at the time of service or during the time of defending said action.

The concept here is the same, except that there is no examination of prejudice to the defendant. There appears to be a trade-off here, in that a defendant with a confusing trade name is not entitled to quite as much protection.

There are very few Virginia state cases interpreting any of these statutes. It is likely that the Virginia state courts would look to the federal courts for guidance. Given that there are still uncharted waters in the federal system, however, litigants are well advised to be careful and diligent.

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