holding that when a “defendant [is] from the outset made fully aware of the events giving rise to the action, an allowance of [an] amendment [can] not in any way prejudice the preparation of defendant’s case.”
How later courts described this case
- holding that when a “defendant [is] from the outset made fully aware of the events giving rise to the action, an allowance of [an] amendment [can] not in any way prejudice the preparation of defendant’s case.”
- holding that as the “defendant was from the outset made fully aware of the events giving rise to the action, an allowance of the amendment could not in any way prejudice the preparation of defendant's case”
- stating that"[d]elay alone ..., without any specifically resulting prejudice, or any obvious design by dilatori- ness to harass the opponent, should not suffice as reason for denial" of a motion to amend
- stating that, “[s]o long as the test of Fed. R. Civ. P. 15(c) is met, a supplemental pleading should ordinarily be given the same relation back effect as an amended pleading”
Written by the judges who cited it.
The opinion
K. K. HALL, Circuit Judge,
dissenting:
I cannot agree with the majority’s election to save this state cause of action which is barred in state court. Contrary to the majority’s opinion, no technical federal pleading rule is at issue, nor is any federal court procedure at stake. Instead, we must decide which events under North Carolina law can toll its statute of limitations in wrongful death actions.
North Carolina courts have ruled that wrongful death actions brought by nonresident personal representatives are time-barred unless two events occur within two years of the alleged wrongful death: (i) qualification of the nonresident as an authorized North Carolina personal representative, and (ii) filing of a complaint to commence the wrongful death action.
The majority holds that, in federal court, only one event should occur within two years of the wrongful death. The majority’s analysis presumes that a pleading problem is presented and holds that filing of the complaint alone can toll the statute in federal court, so long as the plaintiff can become qualified to maintain it anytime during the litigation. It is reasoned that this result is mandated by the Federal Rules of Civil Procedure because they allow pleas of late qualification to relate back to the date the complaint is filed, albeit as a matter of discretion for the district court.
The North Carolina courts have refused to approach the limitations issue posed here by plaintiff’s late qualification as a plead *615 ing problem. They turn to the substantive nature of the qualification requirement and adopt it as a separate tolling event. Uniformly, they hold that technically the plea of qualification can relate back to the filing date but at that time the action is a nullity since it can commence to toll the statute only after the plaintiff has attempted his qualification as a North Carolina authorized personal representative — whereupon he accrues the statutory right to sue.
In Graves v. Welborn, 260 N.C. 688 , 133 S.E.2d 761, 767 (1963), North Carolina’s highest court held that a wrongful death action was validly “commenced” to toll the statute on the filing date, when the plaintiff had made a bona fide attempt to qualify before she filed her action. Her complaint was filed within the limitations period, but her official qualification occurred beyond it. 133 S.E.2d at 763-64 .
The North Carolina Supreme Court discussed at length the fact that plaintiff had substantially complied with the qualification requirement before the complaint was filed. Id. at 766 . She had applied to the court and obtained an order naming her as the lawful representative. She had performed every act necessary for official appointment other than securing the signature of surety to a bond which, because the estate had no assets, would have been only nominal. The court emphasized that she believed her qualification was effective when suit was filed, and therefore was no “pretender.” Id. at 767 . The plea of her official qualification was allowed to relate back to the filing date because the qualification requirement had been met in substance before that time. This case was decided under the North Carolina common law rules of pleading.
Since Graves , North Carolina has adopted the liberal federal rules of pleading and practice, but the substantive qualification requirement has not changed. On facts posing the precise issue here, it has been held that attempts to qualify after the action is filed may be pleaded and allowed to relate back to the filing date, but the action, at that time, is a nullity since to be valid it can “commence” and toll the statute only after qualification is effective. Sims v. Rea Construction Company, 25 N.C.App. 472, 213 S.E.2d 398 (1975); Johnson v. Wachovia Bank & Trust Co., 22 N.C.App. 8, 205 S.E.2d 353 (1974).
The decisions of these intermediate state courts of record are binding on federal courts sitting in diversity jurisdiction. West v. American Telephone & Telegraph Co., 311 U.S. 223, 236-37 , 61 S.Ct. 179 , 85 L.Ed. 139 (1940).
This appeal is controlled by Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530 , 69 S.Ct. 1233 , 93 L.Ed. 1520 (1949), where the Supreme Court construed tolling events for state limitations periods to pose substantive law issues. A Kansas statute of limitations was tolled in state court when the complaint was served rather than when it was filed. Rules 3 and 4(a) of the Federal Rules of Civil Procedure seemed to conflict because they provided that filing, not service, of the complaint in federal court commenced the action, and thereby tolled statutes of limitations. The Court reasoned that state law created the cause of action, and,
We cannot give it a longer life in the federal court than it would have had in the state court without adding something to the cause of action. We may not do that consistently with Erie R.R. Co. v. Tompkins [ 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938)].
337 U.S. at 533-34 , 69 S.Ct. at 1235 .
As in Ragan , any conflict here with North Carolina law arises from what constitutes a tolling event. The majority assumes that filing is a tolling event if qualification becomes effective any time during the action. A consistent line of state court decisions are contrary. They hold that filing can be a final tolling event only when qualification is effective before filing. Where the action is filed without qualifying, the act of qualification becomes the final tolling event.
The majority finds that the rule of Hanna v. Plumer, 380 U.S. 460 , 85 S.Ct. 1136 , 14 L.Ed.2d 8 (1965), controls. There, however, *616 the Court was confronted with a true procedural problem. As the Court characterized the issue, the problem was the manner in which a federal marshal should serve complaints on defendants. See id. at 461, 85 S.Ct. 1136 . It held that a Massachusetts requirement for in-hand delivery as a tolling event was not binding on federal courts, since, to give it effect, the way a marshal served process would have to be changed. Id. at 469, 85 S.Ct. 1136 . The Court reasoned that the manner in which federal courts conduct their day-to-day operations cannot be dictated by a slaving devotion to the peculiarities of state law. Therefore, when the federal rules instruct that some act be performed in a certain way, the federal rules are controlling even if state law is contrary and the outcome of the case is determined by the forum selected. Id. at 473, 85 S.Ct. 1136 .
Hanna made no attempt to overrule Ragan because entirely different interests were at stake. Ragan stated the general rule that state law definitions of tolling events are binding on federal courts. Hanna stated an exception where those definitions dictate a change in the performance of some “housekeeping” function prescribed by Congress in the federal rules. Hanna v. Plumer, 380 U.S. at 473 , 85 S.Ct. at 1136 .
Here, the majority identifies no consequence to federal procedures which may flow from a decision to follow North Carolina’s substantive law. On the other hand, the consequence of refusing to accept its definition of tolling events is singular: it changes the outcome of the case, giving life to an action barred in state court.
To meet what it perceives as the broad Hanna rule, the majority cites F.R.Civ.Proc. Rule 15(c) as a prescription to ignore the North Carolina qualification requirement. The federal rules hardly instruct on our problem at all.
Rule 15(c) speaks to the amendment of complaints where defendants are misnamed but otherwise have notice of the action within a limitations period. As the majority notes, Rule 15(d) is more on point because the fact of qualification has occurred after suit was filed. Rule 15(d) is silent on whether the relation back provisions of Rule 15(c) should apply to supplemental pleadings. Because supplemental pleadings have an impact on statutes of limitations, state and federal, which is very different from the amendments considered in Rule 15(c), that silence was intentional. 3 Moore’s Federal Practice ¶ 15.01[7]. I think the majority’s leap to rely on Rule 15(c) is, unfortunately, too grand.
The federal rules instruct on our problém, if at all, in Rule 17(b). This rule reveals that whether a party has the capacity or qualification to sue or be sued poses absolutely- no consequence to federal court procedures. It points us to state law, because what is at issue in such matters is substantive policy, not technical pleading requirements. It shows that in federal court, state laws should generally control these matters because they are designed to protect rights and impose responsibilities upon persons whom the states deem capable and responsible to vindicate and bear them.
Like statutes of limitations generally, the North Carolina rule requiring qualification to sue is tied to the purpose of the state’s cause of action. Unless, to give it effect, federal courts must change how they proceed to hear the state’s action, we must follow state law.
Finally, I am surprised that, in its effort to save this cause of action, the majority holds in Part III of the opinion that the district court abused its discretion by refusing to allow the amendment to relate back to the date of filing. Again, I think the majority is wrong.
In Foman v. Davis, 371 U.S. 178, 182 , 83 S.Ct. 227 , 9 L.Ed.2d 222 (1962), the Supreme Court listed reasons for which the district court could refuse to allow the amendment of a complaint: undue delay, bad faith or dilatory motive of movant, repeated failure to amend previously, undue prejudice to the opposing party, futility of amendment, “etc.”
Here, the district court found plaintiff waited to amend his complaint four months after being informed of the qualification *617 requirement (delay); he failed to assert this claim in his two Alabama actions (dilatory motive); and, his action was time-barred in state court and, probably, was barred by the North Carolina contributory negligence rule, inasmuch as plaintiff’s decedent had been found by an Alabama jury to be negligent and plaintiff himself had conceded such negligence by a consent judgment (futility, bad faith, dilatory motive). I think the district court’s conclusions speak for themselves.
In short, I think the majority’s disregard of state law is striking. The action is time-barred as a matter of substantive law. No federal court procedure is fairly at stake. The Federal Rules of Civil Procedure are noticeably silent on our issue. The problem before us is a bare legal issue posing a classic Erie “outcome-determinative” choice. As such, federal precedent mandates we follow state law. Finally, I think in no event should we find the district court abused its discretion in refusing to allow plaintiff to save this cause of action by supplemental pleading. Accordingly, I would affirm the judgment of the district court.
Therefore, I respectfully dissent.