Arthur v. Maersk Inc

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

1-13-2006

Arthur v. Maersk Inc

Precedential or Non-Precedential: Precedential

Docket No. 04-3670

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-3670

EDWARD ARTHUR,

Appellant

v.

MAERSK, INC.

d/b/a MAERSK LINE LTD.;

DYN CORP. TECHNICAL SERVICES

d/b/a DYN MARINE SERVICES;

THE UNITED STATES OF AMERICA

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 02-cv-02931)

District Judge: Honorable Harvey Bartle, III

Argued December 5, 2005

Before: RENDELL, FISHER and VAN ANTWERPEN,

Circuit Judges.

(Filed: January 13, 2006)

Brian P. McCafferty (Argued)

Provost & Umphrey

1617 John F. Kennedy Boulevard

Suite 640

Philadelphia, PA 19103-1806

Attorney for Appellant

A. Robert Degen (Argued)

Fox Rothschild

2000 Market Street, 10th Floor

Philadelphia, PA 19103

Attorney for Appellees Maersk, Inc.

and United States of America

Michael B. Pullano

Weber, Gallagher, Simpson,

Stapleton, Fires & Newby

2000 Market Street, Suite 1300

Philadelphia, PA 19103

Henry A. King (Argued)

Michael L. Vincenzo

King, LeBlanc & Bland

201 St. Charles Avenue, 45th Floor

New Orleans, LA 70170

Attorneys for Appellee Dyn Corp.

Technical Services

2

OPINION OF THE COURT

FISHER, Circuit Judge.

From the high seas comes a question of federal civil

procedure. After suffering a series of injuries while working as

a merchant seaman, Edward Arthur sued his employers, Maersk,

Inc., and Dyn Marine Services of Virginia, Inc.,1 for negligence

under the Jones Act, 46 U.S.C. app. § 688. Only later did he

realize that, because the companies were operating as agents of

the United States Navy, the only proper defendant in the case

was the United States. He sought and was granted leave to file

an amended complaint naming the United States as a party, and

requested that this claim “relate back” to the original complaint

to avoid a statute of limitations bar. The District Court

acknowledged that the prerequisites for relation back under

Federal Rule of Civil Procedure 15(c) had been satisfied, but

nevertheless denied the request on the ground that Arthur had

unduly delayed in seeking leave to amend. We conclude that

this decision was in error, and will reverse.

1

Dyn Marine is incorrectly identified in the complaint and

caption of the case as “Dyn Corp. Technical Services.”

3

I.

From May 1999 through December 2000, Arthur worked

on four different ships and suffered four similar injuries. On

May 17, 1999, while employed by Maersk on board the

“U.S.N.S. Stalwart Tagos-1,” Arthur sustained a knee injury

when the ship “rolled” during a weekly lifeboat inspection. In

early October 1999, while working for Maersk on the “U.S.N.S.

Capable,” Arthur hurt his knee once again when the ship

“rolled.” On May 2, 2000, while employed by Dyn Marine

aboard the “U.S.N.S. Littlehales,” Arthur suffered yet another

knee injury when his foot became caught in a gap in the deck

matting. Finally, on or about December 19, 2000, while

employed by Maersk on the “U.S.N.S. Assertive,” Arthur

aggravated his condition by climbing ladders and performing

other tasks. These injuries resulted in significant medical

expenses and rendered Arthur unable to return to work.

The four ships on which Arthur worked were operated by

Maersk and Dyn Marine but were owned by the United States

Navy. Contracts between the companies and the United States

provided that the Navy would maintain control of the ships

while the companies would offer day-to-day personnel and

operational support. Maersk operated the Stalwart Tagos-1,

Capable, and Assertive; Dyn Marine operated the Littlehales.

The relationship between the companies and the Navy was

reflected by the designation “U.S.N.S.,” the official abbreviation

for “United States Naval Ships.”2

2

See 32 C.F.R. § 700.406(c) (“Civilian manned ships, of

the Military Sealift Command or other commands, designated

4

On May 16, 2002 – more than two years after he had

been injured on board the Stalwart Tagos-1, Capable, and

Littlehales but less than two years after the incident on the

Assertive – Arthur commenced a civil action against Maersk and

Dyn Marine in the United States District Court for the Eastern

District of Pennsylvania. He alleged that the companies, as the

owners “and/or” operators of the vessels, had failed to maintain

deck and other facilities and were liable for negligence under the

Jones Act, 46 U.S.C. app. § 688. He also raised claims of

unseaworthiness and for maintenance and cure.

The complaint was served in due course and answers

were filed by September 2002. Neither the answer of Maersk

nor that of Dyn Marine refers to the Navy’s ownership of the

vessels or the nature of the contracts under which the companies

operated the ships. The only statement suggesting the

government’s connection to the case appears in one of Dyn

Marine’s affirmative defenses: “Pursuant to the Suits in

Admiralty Act . . . [and] the Suits in Public Vessels Act [Arthur]

does not have a right of action against [Dyn Marine].” Both of

these Acts provide a remedy against the United States, to the

exclusion of all others, for a seaman injured on board a ship

owned by or operated on behalf of the Navy.3

‘active status, in service’ shall be called ‘United States Naval

Ship’ or ‘U.S.N.S.’”).

3

See 46 U.S.C. app. § 742 (“In cases where if such vessel

were privately owned or operated, or if such cargo were

privately owned or possessed, or if a private person or property

were involved, a proceeding in admiralty could be maintained,

5

A status conference was scheduled for October 15, 2002.

Prior to the conference, counsel for Maersk submitted a status

report indicating, as a “special comment,” that the “[c]ase arises

under Public Vessels Act.” The topic was explored in greater

detail during the conference itself. Counsel for Maersk and Dyn

Marine “clearly made known their views that the United States,

not their clients, was the proper defendant.” The District Court

urged the companies to file dispositive motions as soon as

possible to address the issue and avoid the costs of litigation. It

also established, upon agreement of the parties, a ten-day

deadline for initial disclosures under Federal Rule of Civil

Procedure 26(a)(1).

any appropriate nonjury proceeding in personam may be

brought against the United States . . . .”); id. § 781 (“A libel in

personam in admiralty may be brought against the United

States . . . for damages caused by a public vessel of the United

States . . . .”); In re United States, 367 F.2d 505, 511 (3d Cir.

1966) (holding that, if operator of ship acts as an agent of the

United States, exclusive remedy of person injured on ship is

against the United States), cited with approval in Favorite v.

Marine Pers. & Provisioning, Inc., 955 F.2d 382, 388 (5th Cir.

1992); see also 46 U.S.C. app. § 745 (“[W]here a remedy is

provided by this chapter it shall hereafter be exclusive of any

other action by reason of the same subject matter against the

agent or employee of the United States or of any incorporated or

unincorporated agency thereof whose act or omission gave rise

to the claim . . . .”).

6

Neither Maersk nor Dyn Marine complied with the

deadline.4 Dyn Marine did not produce its initial disclosures

until November 4, 2002, and Maersk did not make its

disclosures until December 16, 2002. There were other

problems as well. Dyn Marine’s disclosures did not include a

copy of the operational contract between the company and the

Navy. Maersk’s disclosures included the contract but were

initially misdirected to referring counsel, based in Mobile,

Alabama. They were not delivered to Arthur’s lead counsel, in

Philadelphia, Pennsylvania, until late December 2002, after the

statute of limitations for claims against the United States had

expired.

Within a month, Maersk and Dyn Marine filed separate

motions for summary judgment. Both were predicated on the

same argument: that, because the ships were owned by and

operated on behalf of the United States, Arthur’s exclusive

remedy for his injuries was an action against the United States.

Copies of the operational contracts between the companies and

the United States – including the one with Dyn Marine that had

not been previously disclosed – were attached in support of the

motions.

Soon thereafter, on February 19, 2003, Arthur filed a

motion to stay proceedings on summary judgment pending

further discovery pursuant to Federal Rule of Civil Procedure

4

Arthur’s initial disclosures were provided to opposing

counsel on October 22, 2002, within ten days of the status

conference.

7

56(f).5 His counsel asserted in an attached declaration that the

operational contracts had not been timely disclosed and that

additional discovery was required to determine whether the

contracts supported the claimed defense. The District Court

granted the request.

Depositions of company officials confirmed that the ships

were owned by the United States and operated by Maersk and

Dyn Marine under the operational contracts. The depositions

also revealed that the United States had received notice of the

action against Maersk and Dyn Marine in July 2002, soon after

the original complaint had been served.

On April 14, 2003, Arthur filed a motion for leave to

amend the complaint to add the United States as a party. The

motion was granted by the District Court on May 6, 2003, and

an amended complaint was filed on May 13, 2003. The

amended complaint substantially repeats the allegations of the

original complaint, but asserts that the United States is liable

under the Suits in Admiralty Act, 46 U.S.C. app. § 742, and the

Public Vessels Act, 46 U.S.C. app. § 781, for the negligence of

its “agents,” Maersk and Dyn Marine. Three days later, the

District Court granted the companies’ motions for summary

5

See Fed. R. Civ. P. 56(f) (“Should it appear from the

affidavits of a party opposing the motion that the party cannot

for reasons stated present by affidavit facts essential to justify

the party’s opposition, the court may refuse the application for

judgment or may order a continuance to permit affidavits to be

obtained or depositions to be taken or discovery to be had or

may make such other order as is just.”).

8

judgment on the ground that Arthur’s exclusive remedy was

against the United States.6

The United States, now the sole defendant, filed a motion

to dismiss the complaint as barred by the two-year statute of

limitations of the Suits in Admiralty Act, 46 U.S.C. app. § 745.

Following briefing, the District Court granted the motion. It

recognized that the new claim would be timely if the amendment

was deemed to relate back to the original complaint, filed in

August 2002, pursuant to Federal Rule of Civil Procedure 15(c).

It also recognized that all of the enumerated prerequisites for

6

Arthur had requested that the District Court exclude the

operational contracts from the record on summary judgment as

a sanction against Maersk and Dyn Marine for the late

disclosures. See Fed. R. Civ. P. 37(c)(1) (“A party that without

substantial justification fails to disclose information required by

Rule 26(a) . . . is not, unless such failure is harmless, permitted

to use as evidence at a trial, at a hearing, or on a motion any

witness or information not so disclosed.”). Without these

contracts, it is arguable that the companies would not have been

able to establish an agency relationship with the United States

and, thus, would not have been entitled to summary judgment.

See, e.g., In re United States, 367 F.2d at 511. The District

Court declined to exclude the contracts without explanation, and

Arthur challenges this decision on appeal. Based on our

conclusion that remand is warranted on other grounds, we need

not reach the issue.

9

relation back had been satisfied.7 Nevertheless, it held that

relation back should be denied because Arthur was “unduly

dilatory” in bringing his claim against the United States.

The District Court found that, as an “experienced

merchant seaman,” Arthur “knew or should have known” by the

“U.S.N.S.” designation that the ships were owned by and

operated on behalf of the United States Navy and, thus, should

have brought his claim against the United States originally. It

also noted that Maersk and Dyn Marine had raised the agency

issue during the status conference in October 2002 and in their

motions for summary judgment in January 2003 but that Arthur

had not filed a motion for leave to amend until April 2003. It

acknowledged that the companies may have been tardy in

producing their contracts with the Navy, but admonished that

Arthur should not have “wait[ed] until he ha[d] absolute

certainty before moving to amend.”

7

The District Court determined that the claim in the

amended complaint arose from the same transactions as those in

the original complaint, see Fed. R. Civ. P. 15(c)(2), found that

the United States had received notice of the action within the

period authorized for service and would not “be prejudiced in

maintaining a defense on the merits” if the case proceeded to

trial, see id. 15(c)(3)(A), and assumed that the United States

should have known that Arthur would have named it in the

original complaint but for his “mistake” concerning the agency

relationship between the private companies and the Navy, see id.

15(c)(3)(B).

10

The District Court concluded that “[a]ny mistake about

the United States was clearly no longer a mistake as of the . . .

status conference,” and that any delay thereafter could not be

justified. It stated: “[B]ecause Arthur’s motion to amend came

too late, we will grant the motion of the United States to dismiss

his . . . claim[] as barred by the two-year statute of limitations of

the Suits in Admiralty Act, 46 U.S.C. [a]pp. § 745.”8

This timely appeal followed. We have jurisdiction under

28 U.S.C. § 1291.

II.

Federal Rule of Civil Procedure 15 embodies a liberal

approach to pleading. See, e.g., Bensel v. Allied Pilots Ass’n,

387 F.3d 298, 310 (3d Cir. 2004), cert. denied, 125 S. Ct. 1976

(2005). Subsection (a) allows a party to amend a complaint

upon leave of court and states that leave “shall be freely given

when justice so requires.” Fed. R. Civ. P. 15(a). Subsection (c)

8

The District Court had originally granted the motion on

grounds that the statute of limitations was “jurisdictional” and

that, because the United States had not been named as a party

until May 2003 – more than two years after Arthur’s final injury

in December 2000 – the lawsuit was barred notwithstanding

application of Rule 15(c). It subsequently reconsidered this

conclusion on motion by Arthur and held that, under Irwin v.

Department of Veterans Affairs, 498 U.S. 89 (1990), the

limitations period was not jurisdictional and did not necessarily

bar relation back of the amendment. Nevertheless, the District

Court affirmed its prior ruling based on undue delay.

11

provides that an amendment arising out of the same conduct as

that alleged in the original complaint will normally “relate back”

to the complaint for statute of limitations purposes. Id. 15(c).

Combined, these provisions ensure that an inadvertent error in

pleading will not preclude a party from securing relief on the

merits of a claim. See, e.g., Foman v. Davis, 371 U.S. 178, 182

(1962).

Leave to amend under subsection (a) and relation back

under subsection (c), while obviously related, are conceptually

distinct. Leave to amend should be granted whenever “justice

so requires.” Fed. R. Civ. P. 15(a). This standard encompasses

a broad range of equitable factors, including a party’s delay in

seeking leave to amend and any prejudice to the opposing party.

See Foman, 371 U.S. at 182. Only when these factors suggest

that amendment would be “unjust” should the court deny leave.

Id.

The relation back inquiry is more circumscribed. Rule

15(c) enumerates three distinct prerequisites for an amendment

to relate back to the original complaint: (1) the claims in the

amended complaint must arise out of the same occurrences set

forth in the original complaint, (2) the party to be brought in by

amendment must have received notice of the action within 120

days of its institution, and (3) the party to be brought in by

amendment must have known, or should have known, that the

action would have been brought against the party but for a

mistake concerning its identity. Fed. R. Civ. P. 15(c). Once

these requirements are satisfied, Rule 15(c) instructs that the

“amendment . . . relates back to the date of the original

pleading.” Id.; see also Varlack v. SWC Caribbean, Inc., 550

12

F.2d 171, 174-75 (3d Cir. 1977); 6A Charles Alan Wright et al.,

Federal Practice and Procedure § 1498 (2d ed. 1990).

There is no allowance in Rule 15(c) for inquiry into a

party’s delay in moving for leave to amend. Such equitable

considerations are relevant to whether leave to amend should be

granted under Rule 15(a), see Foman, 371 U.S. at 182, but do

not relate to any of the enumerated conditions of Rule 15(c), see

Lundy v. Adamar of N.J., Inc., 34 F.3d 1173, 1196-97 (3d Cir.

1994) (Becker, C.J., concurring in part in the judgment and

dissenting in part); Anderson v. Deere & Co., 852 F.2d 1244,

1248 (10th Cir. 1988); 6A Wright et al., supra, § 1498. “Undue

delay” is a reason to deny leave to amend but not to deny

relation back. See Anderson, 852 F.2d at 1248; 6A Wright et al.,

supra, § 1498; see also Garvin v. City of Philadelphia, 354 F.3d

215, 220 (3d Cir. 2003); Varlack, 550 F.2d at 174-75.

The District Court did not recognize this distinction. It

assumed that all of the prerequisites under Federal Rule of Civil

Procedure 15(c) had been satisfied; yet, it denied relation back

based on “undue delay.” This was in error.9 The proper course

9

The District Court may have been led astray by dicta in

Nelson v. County of Allegheny, 60 F.3d 1010 (3d Cir. 1995), in

which we stated that relation back was properly denied when the

plaintiffs, who had delayed for three years in moving to amend

the complaint, could not establish that their failure to bring an

earlier amendment was due to “mistake.” Id. at 1014-15.

Although this conclusion, like that of the District Court in this

case, seems to import the “undue delay” factor of Rule 15(a)

into the elements of Rule 15(c), the holding in Nelson was

13

for the District Court, upon finding that Arthur had unduly

delayed in requesting leave to amend, would have been to vacate

its prior order granting leave to amend and then to strike the

amended complaint. Cf. Nieves-Luciano v. Hernandez-Torres,

397 F.3d 1, 4 (1st Cir. 2005) (noting that pre-trial orders from

which no interlocutory appeal may be taken “remain open to

trial court reconsideration” until the entry of judgment) (quoting

Geffon v. Micrion Corp., 249 F.3d 29, 38 (1st Cir. 2001)).

But it does not follow that the decision of the District

Court must be reversed. We could still affirm if we conclude

that the District Court’s findings would support denial of leave

to amend under Rule 15(a). Likewise, we may affirm if we

determine as a matter of law that the prerequisites for relation

back under Rule 15(c) have not been satisfied. See Cent. Pa.

Teamsters Pension Fund v. McCormick Dray Line, Inc., 85 F.3d

1098, 1107 (3d Cir. 1996) (“[W]e may affirm a correct decision

of the district court on grounds other than those relied upon by

the district court . . . .”).

otherwise justified because the plaintiffs had been aware of their

claims against the defendants at the time the case was

commenced, but had decided not to sue them in the original

complaint, id. at 1011. See Garvin, 354 F.3d at 221-22 (“[A]n

amended complaint will not relate back if the plaintiff had been

aware of the identity of the newly named parties when she filed

her original complaint and simply chose not to sue them at that

time.”); 3 James Wm. Moore et al., Moore’s Federal Practice

– Civil § 15.19[3][d] (3d ed. 1997) (“[A] conscious choice to sue

one party and not another does not constitute a mistake and is

not a basis for relation back.”).

14

A.

Leave to amend must generally be granted unless

equitable considerations render it otherwise unjust. Foman, 371

U.S. at 182; see also Lorenz v. CSX Corp., 1 F.3d 1406, 1414

(3d Cir. 1993). Among the factors that may justify denial of

leave to amend are undue delay, bad faith, and futility. Lorenz,

1 F.3d at 1414 (quoting Foman, 371 U.S. at 182). We have

consistently recognized, however, that “prejudice to the

non-moving party is the touchstone for the denial of an

amendment.” Id. (quoting Cornell & Co. v. Occupational Safety

& Health Review Comm’n, 573 F.2d 820, 823 (3d Cir. 1978));

see also 3 James Wm. Moore et al., Moore’s Federal Practice

– Civil § 15.15[2] (3d ed. 1997); 6 Wright et al., supra, § 1488.

The District Court determined that the amended

complaint presented a valid claim and that the United States

would not suffer any prejudice if amendment was permitted.

The District Court did not state, and the record does not suggest,

that Arthur acted in bad faith or with improper motive. The only

potential ground to deny leave to amend is undue delay.

Delay alone is not sufficient to justify denial of leave to

amend. Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984).

“[H]owever, at some point, . . . delay will become ‘undue,’

placing an unwarranted burden on the court . . . [and] an unfair

burden on the opposing party.” Id., quoted in Cureton v. Nat’l

Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir. 2001).

When a party fails to take advantage of previous opportunities

to amend, without adequate explanation, leave to amend is

properly denied. Id.; see also Cureton, 252 F.3d at 273 (“[T]he

15

question of undue delay requires that we focus on the movant’s

reasons for not amending sooner.”).

Arthur’s delay was neither so egregious nor unexplained

as to warrant refusal of leave to amend. The original complaint

was filed in May 2002 and the proposed amendment was filed

in April 2003, less than a year later.10 Without discounting the

expense involved in litigating a case for eleven months, only one

appellate court uncovered in our research has approved of denial

of leave to amend based on a delay of less than one year. See

Wimm v. Jack Eckerd Corp., 3 F.3d 137, 141-42 (5th Cir. 1993)

(nine months); cf. Jones v. Robinson Prop. Group, L.P., 427

F.3d 987, 994-95 (5th Cir. 2005) (affirming denial of leave

based on delay of one year); Lewis v. Fresne, 252 F.3d 352, 360

(5th Cir. 2001) (same). There is, of course, no presumptive

period in which a motion for leave to amend is deemed “timely”

or in which delay becomes “undue.” However, a period of

eleven months from commencement of an action to the filing of

a motion for leave to amend is not, on its face, so excessive as

to be presumptively unreasonable. See Roberson v. Hayti Police

Dep’t, 241 F.3d 992, 996 (8th Cir. 2001) (stating that delay of

eleven months did not justify denial of leave to amend); see

also, e.g., Dubicz v. Commonwealth Edison Co., 377 F.3d 787,

793 (7th Cir. 2004) (delay of eight months); Tefft v. Seward, 689

10

It is immaterial that Arthur waited for almost two years

after the injuries at issue to file his complaint. See Boileau v.

Bethlehem Steel Corp., 730 F.2d 929, 939 (3d Cir. 1984) (“[T]he

delay exception in amending the complaint refers to delay in the

actual proceeding in which the complaint occurs, not delay in

bringing suit.”).

16

F.2d 637, 639-40 (6th Cir. 1982) (delay of four years); Buder v.

Merrill Lynch, Pierce, Fenner & Smithi Inc., 644 F.2d 690, 694

(8th Cir. 1981) (delay of two and a half years).

More importantly, Arthur has offered a justification for

the delay: he did not know that the ships on which he had been

injured were owned by and operated on behalf of the United

States Navy.11 This is borne out by the procedural history of this

case. The original complaint names only Maersk and Dyn

Marine as defendants, without suggesting the involvement of the

United States. The answers to the complaint do not mention the

agency relationship between the companies and the United

States; indeed, the issue was not raised until the October status

conference, when counsel for the companies suggested (without

proof) that the United States was the proper defendant. The

operational contracts confirming this allegation were not

disclosed to Arthur until December 2002, after the statute of

limitations had expired. Once Arthur’s counsel verified these

contracts and ensured that the United States had adequate notice

of the cause of action, he filed the motion for leave to amend.

That the vessels were designated “U.S.N.S.” does not,

contrary to the government’s position, necessarily mean that

11

See Adams, 739 F.2d at 867-68 (stressing importance of

a “colorable excuse” for not amending earlier); see also USX

Corp. v. Barnhart, 395 F.3d 161, 167-68 (3d Cir. 2004) (same),

cert. denied, 126 S. Ct. 420 (2005); 3 Moore et al., supra,

§ 15.15[2] (suggesting that amendment should be allowed if

party offers reason for delay); 6 Wright et al., supra, § 1488

(same).

17

Arthur should have been aware of the agency relationship at the

time the complaint was filed. Obviously, this designation

suggests that the vessel is being operated on behalf of the United

States, and would likely support a party’s decision to file suit

against the United States for injuries sustained thereon.

However, it does not conclusively establish agency. Cf.

Favorite v. Marine Pers. & Provisioning, Inc., 955 F.2d 382,

388 (5th Cir. 1992) (stating that designation of ship as “public

vessel” is not determinative of control by United States). The

only means by which a party can establish agency is through

evidence demonstrating that the United States exercised a

significant degree of control over the vessel’s operations. See

id.; see also Alexander v. United States, 63 F.3d 820, 823 (9th

Cir. 1995); Servis v. Hiller Sys. Inc., 54 F.3d 203, 207-09 (4th

Cir. 1995); Wilson v. United States, 23 F.3d 559, 561-62 (1st

Cir. 1994); In re United States, 367 F.2d 505, 511 (3d Cir.

1966). Such evidence most often takes the form of operational

contracts between the private company and the government.

See, e.g., Favorite, 955 F.2d at 388.

The contracts between the companies in this case and the

United States were not made available to Arthur until December

2002. Only through these contracts could Arthur finally credit

the allegations of opposing counsel and conclude that the United

States was indeed the proper party. Had the contracts been

produced in October 2002 – as they should have been – Arthur

would have had sufficient time to file his claim against the

United States before the expiration of the statute of limitations.

The late disclosure denied Arthur this opportunity and required

him to conduct additional discovery – and incur additional delay

– to support his request for relation back.

18

Nothing in the record bespeaks the dilatory motive or

repeated and unjustified failures to amend that we have

previously characterized as warranting denial of leave. See

Adams, 739 F.2d at 868. To the contrary, Arthur prosecuted his

case in a fairly diligent manner. He served the complaint in a

timely fashion, provided and requested discovery in accordance

with the Federal Rules of Civil Procedure, and, after the

operational contracts were disclosed, sought to confirm or deny

the relationship between the companies and the United States.

He filed the motion for leave to amend soon after he had secured

evidence supporting his request for relation back of the claim

against the United States. Compare Oran v. Stafford, 226 F.3d

275, 291 (3d Cir. 2000) (noting that failure to prosecute case

supported denial of leave to amend), with Adams, 739 F.2d at

867-68 (noting that plaintiff’s diligent efforts to prosecute case

supported grant of leave to amend). Even if Arthur, with the

benefit of hindsight, could have named the United States prior

to this time, his failure to do so cannot be viewed as so

egregious as to render amendment inequitable. Cf. Dubicz, 377

F.3d at 793 (finding that delay of eight months did not support

denial of leave to amend, even when attorney was negligent);

Tefft, 689 F.2d at 639-40 (same, but delay of four years); Buder,

644 F.2d at 694 (same, but delay of two and a half years).

The liberality of Rule 15(a) counsels in favor of

amendment even when a party has been less than perfect in the

preparation and presentation of a case. See Foman, 371 U.S. at

182; Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938-39

(3d Cir. 1984). It allows for misunderstandings and good-faith

lapses in judgment, so long as the party thereafter acts

reasonably and diligently. Adams, 739 F.2d at 868-69; see also

19

6 Wright et al., supra, § 1488 (stating that leave should be

granted if delay was due to “oversight or excusable neglect”).

Whether or not Arthur hypothetically could have deduced that

the United States was the proper party at the outset of the case,

the record demonstrates that he took affirmative steps soon

thereafter to determine the identity of the proper party and to

amend the complaint accordingly. His delay cannot be

considered “undue.”

We agree with the District Court that the United States

was not prejudiced by Arthur’s delay in seeking to amend the

complaint. The government has not argued that the delay

impaired its ability to defend against the suit or that it “was

unfairly disadvantaged or deprived of the opportunity to present

facts or evidence which it would have offered had the . . .

amendment[] been timely.” Bechtel v. Robinson, 886 F.2d 644,

652 (3d Cir. 1989) (quoting Heyl & Patterson Int’l, Inc. v. F.D.

Rich Hous., 663 F.2d 419, 426 (3d Cir.1981)). It received

prompt notice of the commencement of this case and could have

begun investigating Arthur’s claim soon after it was filed. A

“careless or myopic” decision on the part of the United States to

initiate only “superficial investigatory practices,” despite the

likelihood that Arthur would later name it as a defendant, does

not constitute prejudice for purposes of Rule 15(a). See 6

Wright et al., supra, § 1498; see also Lundy, 34 F.3d at 1189 n.8

(Becker, C.J., concurring in part in the judgment and dissenting

in part). In the absence of cognizable prejudice to the United

States, the District Court was obliged to grant Arthur leave to

file the amended complaint. See Adams, 739 F.2d at 867-69;

Boileau, 730 F.2d at 938-39; see also Cureton, 252 F.3d at 275.

20

B.

That the District Court was required to grant leave to

amend does not necessarily mean that dismissal of the claim

against the United States was improper. The original complaint

in this case, naming Maersk and Dyn Marine as defendants, was

filed in May 2002, and the amended complaint, naming the

United States as a party, was filed in May 2003. The statute of

limitations for the claim against the United States expired in

December 2002.12 See 46 U.S.C. app. § 745. As such, this

claim may proceed only if the amended complaint is deemed to

relate back to the original complaint.

Federal Rule of Civil Procedure 15(c) provides that an

amendment naming a new party will relate back to the original

complaint for statute of limitations purposes only if several

prerequisites are satisfied: (1) the claim in the amended

pleading must arise out of the “conduct, transaction, or

occurrence” set forth in the original pleading; (2) within 120

days of institution of the action, the party to be brought in by

amendment must have received “such notice of the . . . action

that the party will not be prejudiced in maintaining a defense on

the merits”; and, (3) within 120 days of institution of the action,

the party to be brought in by amendment must have known or

should have known that, “but for a mistake concerning the

12

This claim is the one related to Arthur’s injuries on

board the Assertive, in December 2000. The other injuries

occurred more than two years prior to the filing of the complaint

in this case and claims based thereon would not be timely even

if relation back is recognized. See 46 U.S.C. app. § 745.

21

identity of the proper party,” the action would have been

brought against that party. Fed. R. Civ. P. 15(c); see also

Garvin, 354 F.3d at 220-21; Varlack, 550 F.2d at 174; 3 Moore

et al., supra, § 15.19[3]; 6A Wright et al., supra, § 1498.

The District Court found, and the parties concede, that

the claim against the United States arises out of the same

transactions as the claims in the original complaint. It is also

undisputed that the United States received adequate notice of the

action within 120 days of commencement of the case and would

not be prejudiced if required to defend against the claim.

The sole question is whether the United States knew or

should have known that, but for a “mistake” concerning the

identity of the proper party, it would have been named in the

original complaint.13 See Fed. R. Civ. P. 15(c)(3)(B). The

District Court assumed that Arthur’s failure to name the United

States qualified as a mistake. On appeal, the United States

argues that, because Arthur was an experienced seaman who

should have recognized by the designation “U.S.N.S.” that the

ships were public vessels, there is no basis on which to find that

a “mistake” occurred.

13

The language of Rule 15(c) plainly implies that the

“mistake” must have occurred at the time the complaint was

filed. See Fed. R. Civ. P. 15(c)(3)(B) (defining the “mistake” as

one that affected the parties against whom the action would have

been “brought”); see also, e.g., Garvin, 354 F.3d at 220-21; 6A

Wright et al., supra, § 1498; cf. supra note 9 (discussing Nelson

v. County of Allegheny, 60 F.3d 1010 (3d Cir. 1995)).

22

This argument fails for the reasons previously discussed.

The designation “U.S.N.S.” is not dispositive as to the existence

of an agency relationship between the ship operators and the

United States. Cf. Favorite, 955 F.2d at 388 (stating that

designation of ship as “public vessel” is not determinative of

control by United States). At best, it simply suggests that

further investigation may be warranted. That the ships bore this

designation does not preclude a finding that Arthur was

reasonably mistaken regarding the identity of the potentially

liable party in this case.

Indeed, the procedural history of this case supports a

finding of mistake. The original complaint did not name the

United States as a party, even though it would have been in

Arthur’s interest to do so. The answers to the complaint did not

indicate that the United States owned the ships, and the

companies did not allege that the United States was the proper

defendant until October 2002. Documentary support for this

assertion was not forthcoming for another two months, at which

time Arthur sought additional discovery to support his claim

against the United States. The only reasonable conclusion that

can be gleaned from the record is that Arthur made a mistake as

to the proper party when he filed the original complaint and that

this mistake was not finally corrected until December 2002,

after expiration of the statute of limitations. Cf. 6A Wright et

al., supra, § 1498 (stating that a “plaintiff’s own inexcusable

neglect” in failing “to name the correct party,” although

“germane to the question of permitting an amendment,” is not

relevant to the satisfaction of the notice requirements of Rule

15(c)”).

23

It is of no consequence that Arthur’s mistake resulted

from lack of knowledge, rather than mere misnomer. Although

a majority of courts have held that only a “misnomer or

misidentification” of an existing party can constitute a “mistake

concerning the identity of the proper party” under Rule 15(c),

see, e.g., Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 469

(2d Cir. 1995), amended by 74 F.3d 1366 (2d Cir. 1996),14 there

is no linguistic basis for this distinction. See Pavelic & LeFlore

v. Marvel Entm’t Group, 493 U.S. 120, 123 (1989) (“We give

the Federal Rules of Civil Procedure their plain meaning.”). A

“mistake” is no less a “mistake” when it flows from lack of

knowledge as opposed to inaccurate description. See Webster’s

Third New International Dictionary 1446 (1981) (defining

“mistake” as “a wrong . . . statement proceeding from faulty

judgment, inadequate knowledge, or inattention”). Both errors

render the plaintiff unable to identify the potentially liable party

and unable to name that party in the original complaint. See 3

Moore et al., supra, § 15.19[3][d]. Thus, both errors constitute

a “mistake concerning the identity of the proper party” for

purposes of Rule 15(c). See Singletary v. Pa. Dep’t of Corr.,

266 F.3d 186, 200-01 & n.5 (3d Cir. 2001); Varlack, 550 F.2d

14

See also Powers v. Graff, 148 F.3d 1223, 1226-27 (11th

Cir. 1998); Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir.

1998); Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996);

Wilson v. United States, 23 F.3d 559, 563 (1st Cir. 1994) (citing

Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir. 1993)); W.

Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1201 (4th

Cir. 1989); Wood v. Woracheck, 618 F.2d 1225, 1229-30 (7th

Cir. 1980).

24

at 174-75; 3 Moore et al., supra, § 15.19[3][d]; 6A Wright et al.,

supra, § 1498.15

This interpretation accords with other provisions of Rule

15(c)(3), which authorize relation back of amendments that

either (1) “change[] . . . the naming of a party against whom a

claim is asserted” or (2) “change[] the party . . . against whom

a claim is asserted.” Fed. R. Civ. P. 15(c)(3). The first of these

clauses permits relation back when an amendment corrects a

misidentification of an existing party; the second applies when

an amendment substitutes or adds a new party. Lundy, 34 F.3d

at 1192-93 & n.13 (Becker, C.J., concurring in part in the

judgment and dissenting in part); 3 Moore et al., supra,

§ 15.19[3][d]. To limit relation back to cases involving

misnomer, excluding cases in which the amendment adds a new

party, would render the second clause of Rule 15(c)(3)

superfluous. A broader interpretation of “mistake” is necessary

15

See also Fed. R. Civ. P. 15 advisory committee’s

note–1966 (indicating that relation back is not limited to

situations in which amendment simply “correct[s] a misnomer

or misdescription of a defendant”); cf. Leonard v. Parry, 219

F.3d 25, 27-29 (1st Cir. 2000) (upholding relation back of

amendment naming the actual driver of the car as a defendant

when plaintiff had mistakenly believed that the owner of the car

was operating vehicle at time of accident); G.F. Co. v. Pan

Ocean Shipping Co., 23 F.3d 1498, 1504 (9th Cir. 1994)

(upholding relation back of amendment naming shipping

company as defendant when plaintiff had mistakenly believed

that a claims agent, rather than the shipping company, “owned,

operated, and controlled” the boat).

25

to give full effect to both of these provisions. See 3 Moore et

al., supra, § 15.19[3][d].

An amendment naming a new party will relate back to the

original complaint if the party had adequate notice of the action

and should have known that it would have been named in the

complaint but for a mistake – whether the mistake is based on

lack of knowledge or mere misnomer. Id.; see Varlack, 550

F.2d at 174-75.

These prerequisites are satisfied here. The United States

received notice within 120 days of commencement of the case

that Arthur had brought claims against private companies for

injuries sustained on public vessels. The reason that these

claims were not brought against the United States, the only

potentially liable party, was that Arthur did not recognize the

agency relationship between the companies and the Navy.

The United States should have known that it would have

been named in the complaint but for this mistake. There is no

basis to characterize Arthur’s decision to sue his statutorily

immune employers as litigation strategy, and nothing in the

record suggests that the government viewed it in this manner.

See 3 Moore et al., supra, § 15.19[3][d] (“[A] court . . . should

consider whether the new party knew that the failure to include

it in the original complaint was an error rather than a deliberate

strategy.”). The United States undoubtedly knew that the claims

in the complaint should have been brought against it; indeed, the

operational contracts (drafted by the United States) recognize

that Maersk and Dyn Marine “may become involved in . . .

litigation maintainable against the United States under the

26

Public Vessels Act . . . [and] the Suits in Admiralty Act” and

require that the companies provide immediate notice of such an

action and “cooperate with [g]overnment counsel [in]

maintaining the defense.” An employee of Dyn Marine

confirmed that, in these types of cases, it is common for a

private company to be named in the original complaint but later

replaced with the United States, as the proper defendant.

The only reasonable conclusion permitted by the record

is that the United States knew or should have known that, but for

a “mistake concerning the identity of the proper party,” it would

have been named in the original complaint. See Varlack, 550

F.2d at 174-75 (stating that whether satisfaction of conditions of

Rule 15(c) is a question of fact).

III.

Leave to amend the complaint to add the United States as

a party was warranted under Federal Rule of Civil Procedure

15(a), and, because the prerequisites under Federal Rule of Civil

Procedure 15(c) were satisfied, the amendment should have

been deemed to relate back to the original complaint for statute

of limitations purposes. The contrary decision of the District

Court was in error.

Accordingly, the order of the District Court will be

reversed and this case will be remanded for further proceedings

consistent with this opinion.

27

VAN ANTWERPEN, Circuit Judge, dissenting.

Because this case compels me to conclude that Arthur is

not entitled to relation back of his claim against the

Government, I cannot join in the Judgment of my colleagues.

Arthur received abundant notice that the United States would be

exclusively liable prior to the expiration of the statute of

limitations; it cannot reasonably be posited that the United

States knew or should have known that he was mistaken under

Federal Rule of Civil Procedure 15(c)(3)(B), nor should he have

had the opportunity to amend under Rule 15(a).

I.

Regarding Arthur’s motion to amend, filed April 14,

2003, the District Court noted that “[w]hen we were considering

whether to allow the amendment, the United States was not then

a party and thus not in a position to make its objections known.”

App. 28. In contrast to the majority, I read the District Court’s

opinion as reconsidering its grant to Arthur of leave to amend.

We review decisions on motions under Fed. R. Civ. P. 15 to

amend a complaint for abuse of discretion. Dandrea v.

Malsbary Mfg. Co., 839 F.2d 163, 166 (3d Cir. 1988). As the

majority notes, delay may become undue, and hence grounds for

denial of leave to amend, where it “plac[es] an unwarranted

burden on the court.” Cureton v. National Collegiate Athletic

Ass’n, 252 F.3d 267, 273 (3d Cir. 2001). I cannot conclude as

easily as they do that this case stripped the District Court of

discretion to deny leave to amend. Given that Arthur knew or

should have known that he had to sue the United States before

the statute of limitations expired, the District Court was under

28

no obligation to countenance his lack of diligence, and was

within its discretion to deny his motion to amend.

II.

Turning to the analysis under Rule 15(c), I am forced to

conclude that Arthur has no claim to mistake. Beginning with

the very name of the ship he worked aboard, the United States

Naval Ship Assertive, Arthur and his attorney were on notice of

its status as a Public Vessel within the Public Vessels Act

(“PVA”), 46 U.S.C. app. § 781, and the Suits in Admiralty Act

(“SAA”), 46 U.S.C. app. § 745. The Code of Federal

Regulations directs that “[c]ivilian manned ships, of the Military

Sealift Command or other commands, designated ‘active status,

in service’ shall be called ‘United States Naval Ship’ or

‘U.S.N.S.’” 32 C.F.R. § 700.406(c). Ships of “the Military

Sealift Command or other commands” could not but be “public

vessels” under any logical meaning of that term.16 See 46

U.S.C. app. § 781. In turn, it is settled that the exclusive remedy

for those injured aboard public vessels is against the United

16

The majority’s reliance on Favorite v. Marine

Personnel and Provisioning, Inc., 955 F.2d 382 (5th Cir. 1992),

for the proposition that the “U.S.N.S.” designation is not

dispositive of public vessel status is well-taken as a legal point.

As a practical matter, however, it is difficult at best to conceive

of a situation in which a ship with such a designation would not

fall within the PVA. Research revealed no such scenario. I can

only conclude that the designation all but guarantees public

vessel status.

29

States. E.g., In re United States, 367 F.2d 505, 511 (3d Cir.

1966). Nevertheless, Arthur filed a Complaint on May 16,

2002, naming Maersk and Dyn, but not the United States, as

defendants.

Arthur’s refusal to timely sue the United States endured

past any point where he could have been mistaken. At an

October 15, 2002 status conference, occurring at least a month

and a half before the statute of limitations ran in December

2002, Maersk and Dyn plainly asserted that they were the wrong

parties. Arthur’s attorney admits as much in his affidavit. App.

118, ¶ 7. Even earlier, Maersk’s Answer raised as an

affirmative defense that “Plaintiff’s Complaint is barred by

failure to join an indispensable party.” App. 87, ¶ 45. Likewise,

Dyn’s Answer raised the defense more specifically, citing both

the SAA and PVA as bars to its own liability. App. 96. Arthur

knew enough to conclude that he should sue the United States

before the expiration of the statute of limitations.

Rather than act to save his claims, however, Arthur sat by

while the statute of limitations ran out. To be sure, he was not

idle. He undertook an inexplicable course of discovery to

unearth the obvious: that the United States had an agency

relationship with Maersk and Dyn. He also notes that Maersk

and Dyn were untimely in providing their contracts, which, he

unconvincingly claims, were the sole means at that point of

ascertaining the relationship with any certainty.17 Even

17

After he obtained the contracts in January 2003, Arthur

inexplicably waited until April to file his motion to amend and

relate back. This is indeed a generous liberty to take with an

30

assuming that the Government’s exclusive liability was not

known by Arthur until he received the contracts and conducted

further discovery, he could have amended within the statute of

limitations.

At oral argument, Arthur’s counsel claimed that he would

not add the United States without certainty of its liability for fear

of Rule 11 sanctions. This rings hollow. His amendment would

not have run afoul of Rule 11 because it would have been

entirely proper based on what he knew prior to the expiration of

the limitations period. And even if it were improper, the rule

would have given him ample opportunity to correct any misstep

before sanctions would be imposed. See Fed. R. Civ. P.

11(c)(1)(A) (Rule 11 motion shall not be filed with court until

21 days have elapsed from service and the “challenged . . . claim

. . . is not withdrawn or appropriately corrected.”). I cannot see

what Arthur’s counsel had to fear from preserving his client’s

claim by timely adding the United States, even if he did lack

perfect certainty.

Further, assuming Arthur was actually unsure of the

Government’s liability, a ready means of preserving his claim

was available. Rather than naming the United States, he could

have amended the Complaint to include a “John Doe” or other

unnamed defendant. This Circuit has interpreted Rule

15(c)(3)(B) to permit claims against “John Doe” defendants to

relate back once a named party has been identified and added,

where the other requirements of Rule 15(c) have been met, and

the proper defendants are hard to ascertain. Singletary v.

already-expired statute of limitations.

31

Pennsylvania Dept. of Corr., 266 F.3d 186, 200-01 (3d Cir.

2001) (citing Varlack v. SWC Caribbean, Inc., 550 F.2d 171,

175 (3d Cir. 1977)). Contra, e.g., Barrow v. Wethersfield Police

Dept., 66 F.3d 466, 469 (2d Cir. 1995), amended by 74 F.3d

1366 (2d Cir. 1996). Thus, our interpretation of Rule 15(c)

would have allowed Arthur to insert a “placeholder” party in his

Complaint while he went about the task of assuaging whatever

doubt he harbored as to the United States’ amenability to suit.

He did not avail himself of that procedure, and I do not think we

can properly rescue him from his failure. Additionally, the

majority’s holding today undermines the holdings of this Court

in Singletary and Varlack: litigants who find it difficult to

ascertain the correct party to sue now need not even contemplate

the existence of such putative parties by adding a “John Doe.”

Unquestionably, we must construe the Federal Rules of

Civil Procedure liberally to allow parties their day in court.

Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1186 n.5

(3d Cir. 1994). But as the Supreme Court has observed, “they

should not be expanded by disregarding plainly expressed

limitations.” Schlagenhauf v. Holder, 379 U.S. 104, 121 (1964).

Here, to hold that Arthur was actually mistaken as to the proper

party to sue, and entitled to relation back of his expired claim

under Rule 15(c), strains that provision beyond its proper

bounds. As the District of Columbia Circuit has written, “[i]n

the adversarial system of litigation the plaintiff is responsible for

determining who is liable for her injury and for doing so before

the statute of limitations runs out; if she later discovers another

possible defendant, she may not, merely by invoking Rule 15(c),

avoid the consequences of her earlier oversight.”

Rendall-Speranza v. Nassim, 107 F.3d 913, 919 (D.C. Cir.

32

1997). And as the majority rightly observes, its decision is at

odds with the other Courts of Appeals to have considered this

issue. See Ish Yerushalayim v. United States Dept. of Corr., 374

F.3d 89, 92 (2d Cir. 2004); Powers v. Graff, 148 F.3d 1223,

1227 (11th Cir. 1998); Rendall-Speranza, 107 F.3d at 919;

Wilson v. United States, 23 F.3d 559, 563 (1st Cir. 1994);

Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir. 1993); In re

Kent Holland Die Casting & Plating, Inc., 928 F.2d 1448, 1449-

50 (6th Cir. 1991).

Furthermore, the prevailing – and contrary –

interpretation of Rule 15(c) held by our sister circuits does not

render inoperative a portion of Rule 15(c)(3), as my colleagues

claim. They note that their “interpretation accords with other

provisions of Rule 15(c)(3), which authorize the relation back of

amendments that either (1) ‘change[] . . . the naming of a party

against whom a claim is asserted’ or (2) ‘change[] the party . .

. against whom a claim is asserted.’” As noted above, Arthur

could easily have changed a “party against whom a claim is

asserted” by substituting the United States for an unnamed

defendant. My reading of Rule 15(c)(3)(B)’s mistake

requirement would permit changes to parties against whom

claims are asserted where the litigant seeking amendment was

actually mistaken.

For the foregoing reasons, I think the District Court’s

Order should be affirmed. I therefore respectfully dissent.

33