# Cardenas v. Ever Fresh Farms Transportation, Inc.

> District Court, N.D. Oklahoma · November 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10387306

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** November 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10387306

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

VICTOR CARDENAS, )
)
Plaintiff, )
)
v. ) Case No. 23-CV-49-GKF-CDL
)
EVER FRESH FARMS )
TRANSPORTATION, INC., d/b/a )
SPLIT ROCK; )
SPLIT ROCK SUPPLY CHAIN )
SOLUTIONS, INC.; )
SPLIT ROCK TRANSPORTATION; )
SPLIT ROCK; )
MICHIGAN EXPRESS LINE, INC.; and )
CEDRIC GREY, individually, )
)
Defendants. )

OPINION AND ORDER
This matter comes before the court on the Motion to Dismiss of defendant Michigan
Express Line, Inc. [Doc. 28]. For the reasons set forth below, the motion is denied.
I. The Allegations
The following facts, alleged in plaintiff’s Amended Complaint [Doc. 26], are taken as true
for purposes of ruling on the motion to dismiss. On January 8, 2021, a semi-truck and trailer
operated by defendant Cedric Grey struck a vehicle operated by plaintiff Victor Cardenas on the
Turner Turnpike in Bristow, Creek County, Oklahoma. At the time of the collision, Mr. Grey was
employed by defendants Ever Fresh Farms Transportation, Inc. and/or Split Rock Supply Chain
Solutions and/or Split Rock Transportation, and/or Split Rock, and/or Michigan Express Line, Inc.
(hereinafter collectively referred to as “Trucking Defendants”) and was acting negligently and
within the scope of his employment.
II. Procedural Background
Cardenas initiated this litigation in the District Court in and for Creek County, Bristow
Division, Oklahoma on January 5, 2023, and the case was removed to this court on February 10,

2023. [Doc. 2]. In state court, on January 5, 2023, Mr. Cardenas filed a summons addressed to
“Michigan Express” and identified the defendant as “Michigan Express” in the case caption. [CJ-
2023-00001, in the District Court in and for Creek (Bristow) County, Oklahoma]. On May 22,
2023, Mr. Cardenas moved to amend his complaint because “[a]fter receiving written discovery
responses from Defendant Ever Fresh Farms Transportation, Inc., the Plaintiff learned for the first
time that the correct name for ‘Michigan Express’ is ‘Michigan Express Line, Inc.’ and that
Michigan Express Line, Inc. is also the direct employer for Defendant Cedric Grey.” [Doc. 16, ¶
5]. Mr. Cardenas represented in his motion that he sued “Michigan Express” based on the Official
Oklahoma Traffic Collision Report. The Report identified the vehicle owner as “Michigan

Express.” [Id. ¶ 4].
On May 31, 2023, this court granted the motion for leave to file an amended complaint.
Mr. Cardenas filed his Amended Complaint [Doc. 26] on June 1, 2023. The Amended Complaint
includes the following causes of action: negligence; gross negligence; negligence pursuant to
respondeat superior; negligence per se; and negligent entrustment, hiring, retention, training
and/or failing to properly supervise. [Id. ¶¶ 15–16, 19, 25]. The plaintiff asserts these claims
against all “Trucking Defendants,” including Michigan Express Line, Inc. [Id. ¶¶ 6–7].
III. The Motion to Dismiss
In its motion to dismiss, Michigan Express Line, Inc. contends that the two-year statute of
limitations deadline for negligence and other claims not arising from contract expired on January
8, 2023. It argues that, for plaintiff’s claims to be timely, the Amended Complaint must relate
back to January 5, 2023, the date plaintiff filed his state court petition. See Fed. R. Civ. Pro.

15(c)(1)(C).
IV. Fed. R. Civ. P. 15(c)(1)(C)
Federal Rule of Civil Procedure 15(c) governs when an amended pleading “relates back to
the date of the original pleading.” Fed. R. Civ. P. 15(c)(1). “[W]hen it does relate back, the
amended pleading itself is ‘timely even though it was filed outside an applicable statute of
limitations.’” Barker v. Utah Dep’t of Enviro. Quality, No. 21-4024, 2022 WL 259955, at *2 (10th
Cir. Jan. 28, 2022) (unpublished)1 (citing Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 541
(2010)). Subsection (1)(C) applies to amendments “chang[ing] the party or the naming of the party
against whom a claim is asserted.” Fed. R. Civ. P. 15(c)(1)(C). “Rule 15’s purpose is to provide

litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on
procedural niceties.’” Alqadi v. Singh, No. 23-CV-0364-CVE-JFJ, 2023 WL 6519270, at *2 (citing
Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)).
Overall, Rule 15(c)(1)(C) contains three requirements. First, subsection 15(c)(1)(B) must
be satisfied. Rule 15(c)(1)(B) requires the amendment to assert a claim that arises “out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.”
Fed. R. Civ. P. 15(c)(1)(B). This element is satisfied here because Mr. Cardenas amended his

1 “Unpublished decisions are not precedential, but may be cited for their persuasive value.”
10th Cir. R. 32.1(A).
complaint to correctly identify the defendant Michigan Express Line, Inc. The facts underlying
his Amended Complaint involve the same auto accident as set out in his state court petition.
The second requirement is that, within the period provided by Federal Rule of Civil
Procedure 4(m), the defendant “received such notice of the action that it will not be prejudiced in
defending on the merits.” Fed. R. Civ. P. 15(c)(1)(C)(i). The third requirement is that—also

within the period provided by Rule 4(m)—the defendant “knew or should have known that the
action would have been brought against it, but for a mistake concerning the proper party’s
identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii). Both requirements are discussed below.
V. Analysis
A two-year statute of limitations applies to civil actions “for injury to the rights of another,
not arising on contract.” 12 O.S. § 95(A)(3). The auto accident giving rise to these claims occurred
on January 8, 2021. Plaintiff filed his state-court petition on January 5, 2023. Therefore, the
Amended Complaint must relate back to the date of the state-court petition to be timely.
Pursuant to Fed. R. Civ. P. 4(m), the time limit for service is ninety days or, alternatively,

“an appropriate period” if the plaintiff shows good cause for the failure to effectuate service within
ninety days. And pursuant to 28 U.S.C. § 1448, in all cases removed from state court to federal
court in which one or more defendants has not been served with process or in which service has
not been perfected prior to removal, such process or service may be completed or new process
issued in the same manner as in cases originally filed in federal court. Therefore, the Rule 4(m)
time limit for service began upon removal on February 10, 2023.
Michigan Express Line, Inc. asserts several arguments in its motion. The court addresses
each in turn.2
a. Due diligence
Michigan Express Line, Inc. argues that “Rule 15(c) was not intended to ‘save’ a plaintiff’s
time-barred claim due to failing to exercise diligence in prosecuting his case within the time bar

prescribed by law.” [Doc. 28, p. 9]. It further argues that “there are no allegations contained in
any petition filed in this matter regarding Plaintiff’s inability to timely or correctly identify
Michigan Express Line, Inc.” [Id. at 2]. However, in Krupski v. Costa Crociere S. p. A., the U.S.
Supreme Court instructs that, when a court considers subsection (ii) of Rule 15(c)(1)(C), it must
focus its inquiry on what the defendant knew, instead of what the plaintiff should have known.
560 U.S. 538, 548 (2010). For example, “[r]elation back under Rule 15(c)(1)(C) depends on what
the party to be added knew or should have known, not on the amending party’s knowledge or its
timeliness in seeking to amend the pleading.” Barker, 2022 WL 259955, at *2 (citing Krupski,
560 U.S. at 541). “Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or should have

known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time
of filing her original complaint.” Id. (quoting Krupski, 560 U.S. at 548). “As the contrast between

2 The court does not address whether, as Michigan Express Line, Inc. argues, “Plaintiff will
not be actually prejudiced in maintaining his claims against Mr. Grey and/or Ever Fresh Farms
Transportation Inc” because “the available insurance coverage for this loss is not expected to
change.” [Doc. 28, p. 8]. This argument is beyond the scope of the Rule 15 issues raised in the
motion to dismiss.

Michigan Express Line, Inc. also argues that “Plaintiff’s proposed Amended Complaint
still does not articulate any specific facts in support of a negligent entrustment cause of action
against the “Trucking Defendants.” [Doc. 28, p. 8–9]. Here again, the argument falls beyond the
scope of the Rule 15 issues raised in the motion.
Rule 15(a) and Rule 15(c) makes clear . . . the speed with which a plaintiff moves to amend her
complaint or files an amended complaint after obtaining leave to do so has no bearing on whether
the amended complaint relates back.” Stuart C. Irby Co. v. Brown, No. 13-CV-0520-CVE-FHM,
2014 WL 585099, at *8 (N.D. Okla. Feb. 14, 2014) (quoting Krupski, 560 U.S. at 553). In
analyzing 15(c)(1)(C)(i), courts have found that “the longer the delay in amending the complaint

was, the likelier the new defendant is to have been placed at a disadvantage in the litigation. But
carelessness is no longer a ground independent of prejudice for refusing to allow relation back.”
Thompson v. Dolgencorp, LLC, 304 F.R.D. 641, 644 (E.D. Okla. 2015) (citing Joseph v. Elan
Motorsports Technologies Racing Corp., 638 F.3d 555, 559–60 (7th Cir. 2011)).
Ultimately, the Supreme Court in Krupski reasoned that Rule 15(c)(1)(C) “sets forth an
exclusive list of requirements for relation back, and the amending party’s diligence is not among
them.” Krupski, 560 U.S. at 553 (emphasis added). Therefore, in deciding the issue of relation
back, this court may not consider what information the plaintiff allegedly should have known. Any
alleged failure by the plaintiff to diligently investigate and correctly identify “Michigan Express

Line, Inc.” is outside the proper scope of analysis.
b. Lack of knowledge concerning identity versus mistake concerning identity
The movant cites several cases, most outside of the Tenth Circuit, for the proposition that
“the mere lack of knowledge about a defendant’s identity does not satisfy the ‘mistake’
prerequisite of Rule 15 for relation back purposes.”3 [Doc. 28, p. 5]. However, in support of this

3 Michigan Express Line, Inc. cites Johnson v. United States Postal Service, 861 F.2d 1475
(10th Cir. 1988) as authority for its argument that Mr. Cardenas’ mistake as to the proper identity
of the defendant should bar his amended complaint from relating back. [Doc. 28, p. 8]. The court
in Johnson based its ruling on the Supreme Court’s decision in Schiavone v. Fortune, 477 U.S. 21
(1986). However, Rule 15(c) has since been amended “to change the result in Schiavone v.
Fortune [], with respect to the problem of a misnamed defendant.” Fed. R. Civ. P. 15 advisory
assertion, the movant cites case authority involving facts in which the plaintiff sought to substitute
an unidentified/unnamed defendant with a named individual. Such substitution essentially adds
new parties to the action, in contrast to correcting a mere mistake concerning the proper party’s
identity pursuant to Rule 15(c)(1)(C)(ii). See Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996);
Force v. City of Memphis, 101 F.3d 702 (Table), 1996 WL 665609, at *1 (6th Cir. 1996); Moore

v. Tennessee, 267 F. App’x 450, 452, 454–55 (6th Cir. 2008); Stanley v. Malone, No. 2:07-cv-694,
2009 WL 485491, at *1 (S.D. Ohio Feb. 26, 2009); Burdine v. Kaiser, No. 3:09CV1026, 2010 WL
2606257, at *1, *3 (suing “Fremont Police Officers” due to a “lack of knowledge about their
identities” does not constitute a mistake for purpose of Rule 15(c)); Ford v. Hill, 874 F. Supp. 149,
151, 154 (E.D. Ky. 1995); Dye v. City of Warren, 367 F. Supp. 2d 1175, 1182–83 (N.D. Ohio Apr.
22, 2005); Pierce v. Hamblen Cnty., Tenn., No. 2:09-CV-34, 2009 WL 2996333, at *1 (E.D. Tenn.
Sept. 16, 2009); Clark v. Oakland Cnty., No. 08-14824, 2010 WL 2891712, at *9 (E.D. Mich. July
22, 2010). As Chief Judge DeGiusti observed, “the mistake proviso” of Rule 15(c)(1)(C)(ii) “[was
included] . . . in order to resolve ‘the problem of a misnamed defendant’ and allow a party ‘to

correct a formal defect such as a misnomer or misidentification.’” Chrisman v. Bd. of Cnty.
Comm’s of Okla. Cnty., No. CIV-17-1309-D, 2019 WL 13133362, at *4–5 (W.D. Okla. Sept. 17,
2019) (citing Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004)). In contrast, “a plaintiff’s
lack of knowledge of the intended defendant’s identity is not a ‘mistake concerning the identity of
the proper party’ within the meaning of Rule [15(c)(1)(C)(ii)].” Id.

committee’s note to 1991 amendment. In short, the 1991 amendment added the reference to Rule
4(m) in Rule 15(c)(1)(C) to clarify that the new party does not have to receive notice of the action
before the statute of limitations period expires, as opposed to the period in Rule 4(m). Steven S.
Gensler & Lumen N. Mulligan, Rule 15. Amended and Supplemental Pleadings, in Federal Rules
of Civil Procedure, Rules and Commentary n.244 (2023 ed.)
In his state court Petition, Mr. Cardenas identified “Michigan Express” as “a motor carrier
operating under DOT number 473115 and [] a for profit corporation organized under the laws of
the State of Michigan with its principal place of business located in Grand Rapids, Michigan.”
[Doc. 2-1, ¶ 6]. The Amended Complaint changes this language as follows: “Michigan Express
Line, Inc. [] is a motor carrier and is a for profit corporation organized under the laws of the State

of Michigan with its principal place of business located in Hamtramck, Michigan.” [Doc. 26, ¶
6]. The mistake plaintiff seeks to resolve is one of a misnamed defendant, not lack of knowledge
of the intended defendant’s identity.
Though the plaintiff “has alleged a mistake sufficient to trigger the relation back test of
Rule 15(c)(1)(C), that does not end the inquiry.” Estate of Gonzales ex rel. Gonzales v. Brown,
No. 12-CV-495-JED-PJC, 2014 WL 4748604, at *7 (N.D. Okla. Sept. 23, 2014). Plaintiff must
also establish that, within the period provided by Rule 4(m), Michigan Express Line, Inc. (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.” Fed. R. Civ. P. 15(c)(1)(C).
In plaintiff’s response to the Motion to Dismiss, he states that “[a]fter receiving written
discovery responses from Defendant Ever Fresh Farms Transportation Inc., the Plaintiff learned
for the first time that the correct name for ‘Michigan Express’ is ‘Michigan Express Line, Inc.’
and that Michigan Express Line, Inc. is also the direct employer for Defendant Cedric Grey.”
[Doc. 32, ¶ 5]. In its motion, Michigan Express Line, Inc. states that plaintiff’s written discovery
requests were submitted on March 14, 2023. [Doc. 28, p. 5]. Thus, although it is likely that, within
the period provided by Rule 4(m) as extended by 28 U.S.C. § 1448, Michigan Express Line Inc.
(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, this court cannot make a definitive ruling on the
issue based on the evidence presented to date. The court may not speculate as to what Michigan
Express Line, Inc. knew within the period provided by Rule 4(m) as extended by 28 U.S.C. § 1448.
The issue of relation back should be determined “upon a relevant evidentiary record, rather than
upon speculation as to what notice [Michigan Express Line, Inc.] had of the action and what [it]
knew or should have known.” Gonzales, 2014 WL 4748604, at *8.
Therefore, the court concludes that the relation back issues should be determined at the
summary judgment stage, should defendant Michigan Express Line, Inc. decide to file such a
motion.
VI. Conclusion
WHEREFORE, the Motion to Dismiss of Michigan Express Line, Inc. [Doc. 28] is denied.
Movant’s request that discovery be limited to the singular issue of whether the
requirements of Rule 15(c)(1)(C) have been met [Doc. 28, p. 9] is denied.
IT IS SO ORDERED this 2nd day of November, 2023.

UNITED STATES DISTRICT JUDGE

_9-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387306. Public record. Not legal advice.