Petition — Kumar v. Ingram

Supreme Court, U. S.

FILED

Shs

In THE

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1978.

No. 68-1099

VIJAY S. KUMAR,

Petitioner,

against

REBERTA INGRAM, as Administratrix of the goods,

chattels and credits which were of Watrer Incram,

deceased, and REBERTA INGRAM, individually,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

THomas R. NewMan

Attorney for Petitioner

233 Broadway

New York, N. Y. 10007

(212) 349-3990

Of Counsel

Rosert M. CoHEen

Currrorp A. BartLett, Jp.

Table of Contents.

Opinions Below ....0....2..2........-..-0-- PS Sd ee

EAL TE SL ee

SEED SETS ie TEST Ne ET

Statutes and Rules Involved ..0.0...0.........ccccccsescsssseseeeeeeees

EEL EO ers

The Reasons for Granting the Writ -.............0.0.............

1. The decision below permitting relation back of

an amendment adding a new party after the

statute of limitations has run where no prior

service on or notice to such party was ever ef-

fected conflicts with the rule in the other Cir-

cuits and raises an important question of Fed-

eral law which, to date, has not been, but

should be, settled by this Court -........0.0..0........

2. The decision below is based on an interpreta-

tion of when an action is commenced for pur-

poses of tolling the statute of limitations which

conflicts with the rule followed in other Fed-

eral Circuits, where an opposite result would

BOD TRIE MONIC | Saiscncnccetcccnccncctvessbenscsseccntsncsence

eS LER 1S TE Re ae ee ee

ii.

Page

Appenpix A: :

Opinion of the Court of Appeals .0.............0..0.cccccceeeseee la

Appenpix B:

Opinion of the District Court ....cccccccccccscecsscsscsscecsssees 15a

CASES CITED.

Anderson v. Papillion, 445 F.2d 841, 842 (5th

ORD casciscctslictintnaipenicadicascticeagierpsithitlltdin dia chciltiutiel 6, 7, 10

Archuleta v. Duffy’s Inc., 471 F.2d 33, 35-36 (10th

ad cue stucsthatceesveprccbncencacecmantcancnetsiiisasssateataiemedinigadsteninsste 6

Barko v. Mollica, 5 A.D.2d 699, 169 N.Y.S.2d 771

RE IPD ssiachcaciscneicieiiatoabhdaiesacahdind ania cdtehioa bs tttnitines 11

Elliott v. Amy, 297 N.Y. 622, 75 N.E.2d 638 ................ 11

Matter of Estate of Feinberg, 18 N.Y.2d 469, 507,

og pe dg Re th Le Oe 9

Graves v. General Ins. Corp., 412 F.2d 583, 584-585

CINE UIUESD * scsssssctesuscacgnipieantaniadelinietsbeansnieeclaaasicantai 7

Keating v. Quint, 215 N.Y.S.2d 582 (S. Ct. Qns.

UA. cucksnes:icupnassensiscnannnsiemeniibsaneiaiiens tabelniakietiadeeats 11

Kern v. Hettinger, 303 F.2d 333, 338 (2d Cir.) ............ 11

Marlowe v. Fisher Body, 489 F.2d 1057, 1064 (6th

CIID citigaigececonticcman 7

Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41,

iii.

Page

New York State Elec. & Gas Corp. v. Clair, 23 A.D.2d

602, 256 N.Y.S.2d 361 (3d Dep’t) .........000......... 11

Oliver v. Basle, 55 A.D.2d 975, 390 N.Y.S.2d 466

(3d Dep’t) .. 11

Simmons v. Fenton, 480 F.2d 133, 137 (7th Cir.) .... 6, 7, 8

Sylvestri v. Warner & Swasey Co., 398 F.2d 59 (2d

5 EN Pre etc Ne © 2 eS ey enter ener eae 6

Witherow v. Firestone Tire & Rubber Co., 530 F.2d

RRR POE RE e 10

AUTHORITIES.

Stern & Gressman, Supreme Court Practice, pp. 264-

RS REE A CS SUEY E Nae OOO 9

Federal Rules of Civil Procedure:

Rule 3. Commencement of Action .................... 3, 8

Rule 15. Amended and Supplemental Plead-

ings : 3, 4, 5, 6, 7

a aesctsntinngnenteneddncion

a I ah alae aon berchiantnisnstnenntanteoen

Til. Smith-Hurd Annot. Stat., ch. 83, §15 0.000000...

In THE

Supreme Court of the United States

October Term, 1978.

No.

——

Visay S. Kumar,

Petitioner,

against

Reserta Incram, as Administratrix of the goods, chat-

tels and credits which were of Walter Ingram, deceased,

and Reserta Inoram, individually,

Respondent.

—_—

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

The petitioner, Vijay S. Kumar, prays that a writ of

certiorari issue to review the order of the United States

Court of Appeals for the Second Circuit entered on Oc-

tober 19, 1978, which unanimously affirmed the order of

the United States District Court for the Western District

of New York (1) denying petitioner’s motions for dis-

missal and summary judgment against complainant, who

first added petitioner as a party to this medical malprac-

tice action and caused service to be made on petitioner

after the statute of limitations had run; and (2) granting

respondent’s motion to amend the complaint retroactively

to add petitioner’s name.

2

Opinions Below.

The opinion of the United States Court of Appeals

for the Second Circuit (Appendix A) is not yet officially

reported, but appeared in The New York Law Journal,

October 31, 1978, p. 1 col. 6; the memorandum decision

of the United States District Court for the Western Dis-

trict of New York (Appendix B) is not reported.

Jurisdiction.

The order of the United States Court of Appeals for

the Second Circuit was filed on October 19, 1978. The

jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

Questions Presented.

1. Where the applicable statute of limitations in a di-

versity action has expired before service of process on

or notice to a new party defendant has been effected,

does Fed.R.Civ.P. 15(c) permit relation back of a subse-

quent amendment of the summons and complaint adding

such new party so as to avoid the bar of the statute of

limitations?

2. Where a diversity action has been filed naming one

party and after the statute of limitations expires a dif-

ferent party who had no prior notice of the action is

added and served, does the prior filing of the original

complaint constitute a timely commencement of the ac-

tion under Fed.R.Civ.P. 3 against the newly added party?

3

Statutes and Rules Involved.

Federal Rules of Cwil Procedure

Rule 3. Commencement of Action

“A civil action is commenced by filing a com-

plaint with the court.”

Rule 15. Amended and Supplemental Pleadings

“(e) Relation Back of Amendments. Whenever

the claim or defense asserted in the amended plead-

ing arose out of the conduct, transaction, or occur-

rence set forth or attempted to be set forth in the

original pleading, the amendment relates back to

the date of the original pleading. An amendment

changing the pa against whom a claim is as-

serted relates back if the foregoing provision is

satisfied and, within the period provided by law

for commencing the action against him, the party

to be brought in by amendment (1) has received

such notice of the institution of the action that he

will not be prejudiced in py his defense

on the merits, and (2) knew or should have known

that, but for a mistake concerning the panna of

the proper party, the action would have been

brought against him.”

Statement of the Case.

Petitioner Vijay S. Kumar, a neurologist, rendered

treatment to Walter Ingram between January 6-15, 1975

in Illinois. Ingram died and Dr. Kumar subsequently

moved to New York. Ingram’s administratrix, an Illinois

resident who at all times could have commenced her ac-

tion in Illinois pursuant to that State’s long-arm statute,

decided to sue Dr. Kumar in New York for malpractice.

4

Plaintiff's experienced attorneys ascertained that a Dr.

Vijaya N. Kumar, an anesthesiologist, resided in Valhalla,

New York. On December 28, 1976, just before expiration

of the two-year statute of limitations, plaintiff filed suit in

the United States District Court for the Southern Dis-

trict of New York on the basis of diversity jurisdiction

under 28 U.S.C. $1332, captioning her summons and com-

plaint against Vijaya N. Kumar.

Plaintiff’s attorneys instructed the marshal to serve

Vijaya N. Kumar at his home in Valhalla, N. Y. After

such service was made, plaintiff learned that she had

made a mistake; Dr. Vijaya N. Kumar of Valhalla, N. Y.,

the person whom plaintiff had named and sued, had never

treated the decedent.

After further inquiry plaintiff ascertained that the

neurologist Vijay S. Kumar (petitioner herein) resided

in Jamestown, N. Y. On May 6, 1977, several months

later and 121 days after the two-year statute of limita-

tions (Ill. Smith-Hurd Annot. Stat. Ch. 83, §15) had

expired, plaintiff caused the summons and complaint still

erroneously naming Vijaya N. Kumar to be served on

petitioner. On petitioner’s motion to dismiss the action

for improper venue, the action was transferre’ from the

Southern to the Western District of New York.

Since plaintiff never named or served petitioner until

a number of months after the statute of limitations ex-

pired, her claim should have been time-barred, and peti-

tioner therefore moved for summary judgment. Plaintiff

cross-moved under Fed.R.Civ.P. 15(c) to amend the eap-

tion of her complaint to name petitioner instead of Vijaya

N. Kumar (34a). The district court denied petitioner’s

motion and granted plaintiff’s cross-motion, treating the

issue as one of merely correcting a misnomer.

The Court of Appeals for the Second Circuit recognized

that this case involved more than a simple “misnomer,”

that it was in fact an amendment “changing the party

against whom a claim is asserted” (Appx. A, p. 10a). Under

Fed.R.Civ.P. 15(c) such an amendment can relate back

to the date of the original pleading only if “within the

period provided by law for commencing the action

against him, the party to be brought in by amendment

(1) has received such notice of the institution of the ac-

tion that he will not be prejudiced in maintaining his

defense on the merits, and (2) knew or should have known

that, but for a mistake concerning the identity of the

proper party, the action would have been brought against

him.” (Emphasis added.)

It is undisputed that petitioner never received notice

of the institution of this action before the statute of limi-

tations expired and that he “did not get notice until he

was served in May 1976, several months after the statute

of limitations had run” (see Appx. A, p. 10a). It is

also undisputed that petitioner did not know and could

not have known of the pending action or that, but for a

mistake in identity, the action would have been brought

against him. He had no reason to suspect that a lawsuit

would be started against him.

Notwithstanding the undisputed failure to comply with

the two express requirements of Rule 15(¢) for relation

back, the Court of Appeals affirmed the district court’s

order denying defendant’s motion for summary judgment

and permitting plaintiff to amend retroactively the cap-

tion so as to bring in a new party.

The court below interpreted the words of Rule 15(c)

“within the period provided by law for commencing the

action against him” to extend beyond expiration of the

statute of limitations and to include an additional un-

~

6

defined time after filing the complaint in which to effect

service of process. It did so under the interpretation of

the rule for commencement of actions followed by the

Second Circuit (see Sylvestri v. Warner & Swasey Co.,

398 oe 598 [2d Cir.]), but rejected by a majority of the

Both courts below recognized the precedental signifi-

cance of their decisions and the conflicting state of the

federal decisional law in this area. The district court

described the issues raised by this petition as a “law

professor’s dream” (Appx. B, p. 15a), while the Court of

Appeals noted: “Whether a ‘new’ party may be added by

amendment under Rule 15 after the statute has run is a

subject on which much ink has been spilled by courts and

commentators” with no definitive guidance from this

Court on that issue (Appx. A, p. 7a).

The Reasons for Granting the Writ.

1. The decision below permitting relation back of an amend-

ment adding a new party after the statute of limitations

has run where no prior service on or notice to such

party was ever effected conflicts with the rule in the

other Circuits and raises an important question of

Federal law which, to date, has not been, but should

be, settled by this Court.

The Second Circuit held below that Rule 15(c) allows

amendment of a pleading to add a new party who was

not served prior to the expiration of the statute of limita-

tions to relate back to the filing of the original complaint.

In so doing it laid down a rule directly in conflict with

that followed by the other Federal Circuit Courts of Ap-

peals thai have ruled on this point (Archuleta v. Duffy’s

Inc., 471 F.2d 33, 35-36 [10th Cir.]; Simmons v. Fenton,

480 F.2d 133, 137 [7th Cir.]; Anderson v. Papillion, 445

7

F.2d 841, 842 [5th Cir.]; Marlowe v. Fisher Body, 489

F.2d 1057, 1064 [6th Cir.]), all of which hold that Fed.R.

Civ.P. 15(c) does not permit relation back of an amend-

ment changing a party-defendant where the original com-

plaint was never served on him and he had no notice

thereof prior to expiration of the statute of limitations,

and that:

“Such amendment can relate back to the date the

complaint was filed only if the provisions of Rule

15(c) are met” (Archuleta v. Duffy’s, Inc., 471

F.2d 33, 35 [10th Cir.]).

Hitherto the rule had always been “that the amendment

changing a party’s name will relate back where the party

intended to be served, though misdescribed, was actually

the party served” (Simmons v. Fenton, 480 F.2d 133,

137 [7th Cir.]), but not where a new party is added. As

held in Graves v. General Ins. Corp., 412 F.2d 583, 584-

585 (10th Cir.):

“Obviously, if appellant is to prevail he must

show that a misnomer is involved in order to take

advantage of the relation back doctrine incor-

porated in Rule 15(c). But this is not a true mis-

nomer situation, or at least not the type of mis-

nomer Rule 15(¢c) was envisioned to correct. What

appellant actually accomplished by his Notice was

to add or substitute a party.

@ @ @

“The addition or substitution of parties who had

no notice of the origi action is not allowed.

[Citations omitted.] . Substitution of a completely

new defendant creates a new cause of action. Per-

mitting such procedure would undermine the policy

upon which the statute of limitations is 4p

The Second Circuit correct!y found that this case did

not fit within the category of a “mere misnomer,” and

8

concluded that it must be treated as an amendment

“changing the party against whom a claim is asserted”

(Appx. A, p. 10a). In nevertheless allowing relation back

of the amendment to bring in a new party defendant four

months after the statute had run, with no previous serv-

ice of any*kind on or notice to petitioner, it arrived at

a conclusion directly in conflict with the explicit language

of the rule and the holdings in other Federal Circuits

on this point.

The court below incorrectly equated the provisions of

Rule 15(¢) with Fed.R.Civ.P. 3 (and with corollary state

rules) governing commencement of an action, as applied

to the running of the statute of limitations. Rule 3, gov-

erning commencement of an action by filing, has no re-

quirement of notice of the existence of the action, whereas

Rule 15(¢) specifically requires timely notice of the

existence of the action in order for the amendment to be

permitted to relate back. As held by the Seventh Circuit

in Simmons v. Fenton, 480 F.2d 183, 137:

“The second sentence in Rule 15(c) was added

by amendment in 1966, 383 U.S. 1029, 1044. This

amendment has been the subject of our present

consideration. * * * [S]tate statutes of limitations

are frequently geared to the filing of a complaint.

This appears to be so in Illinois. However, Rule

15(¢c) is geared to notice. The party to be sub-

stituted must receive notice o the action ‘within

the period provided by law for commencing the

action against him.’ * * * [I]t is apparent that

Doris J. Fenton had no notice until after the stat-

ute of limitations had run. She could not have

had notice that a suit had been filed against her

until she heard about it.” (Emphasis in original.)

The decision below conflicts with the clear language of

the rule and with the decisions following it in most of

the other Circuits. This type of conflict has regularly

9

been deemed by this Court sufficient reason to grant

certiorari (Myers v. Bethlehem Shipbwulding Corp., 303

US. 41, 48-44). As noted by Stern & Gressman, Supreme

Court Practice, pp. 264-65 (5th ed.):

“The Supreme Court usually will grant certiorari

where the decision of the federal court of appeals,

as to which review is sought, is in direct conflict

with a decision of another court of appeals on the

same matter of federal law or on the same matter

of general law as to which federal courts can exer-

cise independent judgments. One of the prime pur-

poses of the certiorari jurisdiction is to bring about

uniformity of decisions on these matters among the

federal courts of appeals. Hence a square and ir-

reconcilable conflict of this nature ordinarily will

be enough to secure review. See, e. g., Aveo Corp.

v. Aero Lodge 735, 390 U.S. 557, 559; Northeastern

National Bank v. United States, 387 U.S, 213, 217.”

(Emphasis in original.)

The decision below permits the adding of a wholly new

party, never previously named, served or notified of the

pendency of the action within the period of the statute

of limitations. “Permitting such procedure would under-

mine the poliey upon which the statute of limitations is

based” (Graves v. General Ins. Corp., 412 F.2d 588, 585

[10th Cir.]), a salutary policy intended “to penalize

claimants for sleeping on their rights” (Matter of Estate

of Feinberg, 18 N.Y.2d 499, 507, 277 N.Y.S.2d 255) and

to protect potential defendants against stale claims.

The Second Circuit’s unique interpretation of Fed.R.

Civ.P. 15(c) will necessarily have widespread repercus-

sions; since timely commencement of an action is a con-

stantly recurring issue in cases of all types, whether

jurisdiction be by way of diversity or Federal question.

Its conflict with the rule as written and followed by the

Federal Courts of Appeals of the other Circuits will

necessarily introduce uncertainty into the practice in the

10

Federal courts. Accordingly the issue is one calling for

prompt settlement by this Court in the exercise of its

supervisory jurisdiction over the practice in the Federal

courts.

2. The decision below is based on an interpretation of when

an action is commenced for purposes of tolling the

statute of limitations which conflicts with the rule

followed in other Federal Circuits, where an opposite

result would have been mandated.

The courts below reached their result by applying the

Second Circuit rule that “commencement” of a diversity

action by filing under Rule 3 suffices to halt the applicable

state statute of limitations (Appx. A, pp. 5a-6a; Appx. B,

p. 20a). An opposite rule is followed in other Federal Cir-

cuits (see Witherow v. Firestone Tire & Rubber Co., 530

F.2d 160, 166 [38d Cir.]; Anderson v. Papillion, 445 F.2d

841, 842 [5th Cir.]).

There exists no definitive ruling from this Court de-

termining the issue. As a result, a claim which would be

time-barred in the courts of one circuit is upheld in an-

other circuit under the identical set of circumstances.

Tn the instant case this dichotomy of principles enabled

the courts below to arrive at a result opposite to that

which would have been mandated had this diversity action

been commenced in the State courts of the forum or in

another circuit.

New York provides a saving period limited to 60 days

after delivery of the summons for service, provided that

it is delivered to the sheriff of the county in which the

intended defendant resides or works or last resided or

worked (CPLR §208[5]). As the court below has recog-

nized, the effect of that saving statute is limited to cases

where the plaintiff is actually aware of who the defendant

11

is and in which county he resides or works, so that the

summons is duly delivered to the sheriff of the proper

county (Kern v. Hettinger, 303 F.2d 333, 338 [2d Cir.}).

Under no circumstances does New York consider de-

livery of the summons to the sheriff of the wrong county

to be a commencement of the action sufficient to extend

the statute of limitations (Elliott v. Amy, 297 N.Y. 622,

75 N.E.2d 633; New York State Elec. & Gas Corp. v.

Clair, 23 A.D.2d 602, 256 N.Y.S.2d 361 [3d Dep’t]; Barko

v. Mollica, 5 A.D.2d 699, 169 N.Y.S.2d 771 [2d Dep’t];

Keating v. Quint, 215 N.Y.S.2d 582 [S. Ct., Qns. Co.]).

In any event, delivery to the sheriff would not extend

the statute for more than 60 days after delivery (Oliver

v. Basle, 55 A.D.2d 975, 390 N.Y.S.2d 466 [3d Dep’t]).

Petitioner was not served until 121 days after the

statute of limitations had expired and after the complaint

was filed in the wrong district of New York against the

wrong defendant.

So long as different Circuits follow different rules as

to when an action is commenced for purposes of the

statute of limitations, diverse results will continue to be

reached on the same fact patterns. This issue can and

should be settled by this Court, so that the various

Courts of Appeals need no longer be called upon to re-

solve and re-resolve it for dissatisfied district court liti-

gants looking to the law in other Federal jurisdictions,

and so that the end result in an action should no longer

depend upon the fortuitous circumstance of which court

it is brought in.

12

CONCLUSION.

For the reasons stated herein the petition for a writ of

certiorari should be granted.

Dated: January 4, 1978.

THOMAS R. NEWMAN,

Attorney for Petitioner.

Of Counsel:

Rosert M. Cowen,

Currrorp A, Bartuert, Jr.

la

APPENDIX A.

Opinion of the Court of Appeals.

UNITED STATES COURT OF APPEALS,

For tap Seconp Circuit.

No. 44—August Term 1978.

Argued September 13, 1978 Decided October 19, 1978

Docket No. 78-7181

~~

Reserta IncGraM, as Administratrix of the goods, chat-

tels, and credits which were of Walter Ingram, de-

ceased, and Reserta INGRAM, individually,

Plaintiff-Appellee,

against

Visay S. Kumar,

Defendant-A ppellant.

Before:

Feinberg, Mansfield, and Smith, Circuit Judges.

Appeal from order of United States District Court for

the Western District of New York, John T. Curtin, Ch.

J., denying defendant’s motions for dismissal and sum-

mary judgment and granting plaintiff’s motion to amend

the complaint to correctly name the defendant.

Affirmed.

2a

David Jaroslawicz, New York, N. Y. (Julien, Schle-

singer & Finz, New York, N. Y., Alfred S. Julien, Stuart

A. Schlesinger, of counsel), for Plaintiff-Appellee.

Thomas R. Newman, New York, N. Y. (Bower & Gard-

ner, New York, N. Y., Barbara P. Billauer, of counsel),

for Defendant-Appellant.

Fernsere, Circuit Judge:

Defendant Vijay S. Kumar, a physician residing in

Jamestown, New York, appeals from an order of the

United States District Court for the Western District

of New York, John T. Curtin, Ch. J., that denied Kumar’s

motion for summary judgment and granted the cross-

motion of Reberta Ingram, a resident of Illinois, to cor-

rect the spelling of defendant’s name in the complaint

from Vijaya N. Kumar to Vijay S. Kumar. in this

medical malpractice action, plaintiff sues on her own be-

half and as administratrix of the estate of her husband,

Walter Ingram, and alleges in various causes of action

that defendant’s negligent treatment of her husband in

January 1975 inflicted pain and suffering upon him while

alive, and caused his eventual death and her own loss of

consortium. The basis of defendant’s motion was that

the action is barred by the applicable two-year statute

of limitations. Although Judge Curtin denied the motion,

he certified his order under 28 U.S.C. §1292(b), and a

panel of this court granted leave to appeal. We affirm

the order of the district court.

I

The relevant facts, for the purpose of this appeal, may

be assumed to be as follows. Defendant Dr. Vijay S.

Kumar, a neurosurgeon, treated plaintiff’s decedent in

Illinois from January 6 to January 13, 1975, and some-

time thereafter moved to New York. On December 28,

3a

1976, plaintiff commenced her action in the United States

District Court for the Southern District of New York, by

filing a summons and complaint with the Clerk of the

court ing Vijaya N. Kumar as defendant. To locate

defendant, plaintiff’s counsel had consulted the New York

State Medical Directory and found the name of Vijaya

N. Kumar, a physician in Valhalla, New York, and thus

believed this to be the proper spelling of defendant’s

name. When service of process was attempted on Vijaya

N. Kumar, it was learned that this doctor had never

treated plaintiff’s decedent. Later investigation revealed

a Dr. Vijay S. Kumar, residing in Jamestown, New

York, who was served with the original complaint on May

6, 1977. On defendant’s motion to dismiss the action

for improper venue—Valhalla is in the Southern District,

Jamestown in the Western—the action was transferred

to the latter district. Defendant then filed an answer

raising no affirmative defense, but two days later amended

the answer to plead the statute of limitations. Defend-

ant then moved for summary judgment and also to dis-

miss under Fed.R.Civ.Proc. 41(b) for plaintiff’s alleged

failure to prosecute, because plaintiff had not yet served

a complaint upon defendant designating Vijay S. Kumar

as defendant. Plaintiff then cross-moved under Fed.R.

Civ.Proc. 15 to amend her complaint to change defend-

ant’s name therein from Vijaya N. Kumar to Vijay S.

Kumar.

The motions were argued before Judge Curtin, who

ruled in favor of plaintiff in a nine-page, unreported

memorandum opinion. On defendant’s claim that plain-

tiff had failed to exercise due diligence in serving him,

the judge exercised his discretion under Rule 41(b) and

denied the motion to dismiss. With regard to defend-

ant’s motion for summary judgment based on the statute

of limitations and plaintiff’s cross-motion under Rule 15,

the judge viewed plaintiff’s motion “as one to correct a

misnomer [rather] than as one to substitute parties.” The

4a

judge granted plaintiff’s motion and held that the amend-

ment related back to the date on which the complaint was

filed in December 1976. Under Sylvestri v. Warner &

Swasey Co., 398 F.2d 598 (2d Cir. 1968), the action there-

fore was not barred even though service on defendant

was made after the two-year statutory period, and de-

fendant’s motion was denied.

Il

The questions thus posed seem deceptively simple, but

the statement of at least 10 issues in appellant’s brief on

appeal and ‘the plethora of cases wrestling with “relation

back” amendments under Rule 15(c) suggest that a close

look at the district court’s action is warranted. The main

attack on appeal is on our decision in Sylvestri v. Warner

€ Swasey Co., swpra, written by then Chief Judge Lum-

bard and joined in by one member of this panel. In that

ease, we held that merely filing a complaint with the

district court in a diversity action commences the action

for the purpose of the statute of limitations even though

under the law of the state in which the district court

is located, only service of process upon the defendant

eould achieve that result. The opinion contained a

lengthy analysis of the effect of Hanna v. Plumer, 380

U.S. 460 (1965) on Ragan v. Merchants Transfer & Ware-

house Co., 337 U.S. 530 (1949) and concluded that “Rule

3, Fed.R.Civ.P. is the proper measure of the commence-

ment of [the] action for purposes of the statute of limita-

tions... .”" Jd. at 606. Appellant claims that the deci-

*Rule 3 provides:

A civil action is commenced by filing a complaint with

the court.

5a

sion in Sylvestri is inapplicable and that even if it does

apply, it should be overruled as unconstitutional or un-

wise.

As a basis for distinction, appellant points out that in

Sylvestri, the New York resident was the plaintiff, while

here it is the defendant. We do not regard this distinc-

tion as significant. Defendant also emphasizes that the

panel in Sylvestri noted that, unlike the situation here,

“the defendant had actual notice of the action long before

the three year [limitations] period under the New York

statute expired.” 398 F.2d at 606. This observation, how-

ever, was made in the context of a discussion of the

plaintiff’s duty under Fed.R.Civ.Proc. 4(a) to use due

diligence in serving process upon a defendant after filing

a complaint.

Asserting that Sylvestri represents a minority view in

the federal courts,’ appellant also vigorously urges us

to overrule that decision primarily because it encourages

forum shopping. This panel, of course, is bound by Syl-

vestri and cannot properly overrule it except by rehear-

ing en banc. Moreover, our acceptance of its binding

force is not grudging; we think the decision was correct

°The circuits are split on the issue. Compare Witherow v.

Firestone Tire & Rubber Co., 530 F.2d 160, 166 n. 8 (3d Cir.

1976) and Anderson v. Papillion, 445 F.2d 841 (5th Cir. 1971)

with Smith v. Peters, 482 F.2d 799 (6th Cir. 1973), cert. denied,

415 U.S. 989 (1974) and Chappell v. Rouch, 448 F.2d 446

(10th Cir. 1971).

6a

for the reasons there given.’ Finally, appellant claims

that the Sylvestri doctrine denies him due process and

the equal protection of the laws. We note that a sub-

~ stantial number of states provide that the statute of

limitations is tolled when the action is filed rather than

when service is made on a defendant.‘ This includes Illi-

nois, where defendant committed his allegedly negligent

acts. See Ill. Ann. Stat. ch. 110, $13; ch. 70, §2 (Smith-

Hurd); Jackson v. Navik, 308 N.E.2d 1438, 145, (Ill. App.

1974). Even in New York, as indicated in the quotation

from Sylvestri in note 3 above, the statute of limitations

may be tolled for 60 days by filing the summons and com-

plaint with the Sheriff or with the County Clerk within

the City of New York. New York Civ.Prac.Law §203

(b) (5) (McKinney Cum. Supp. 1977-78). We can find no

case in which the constitutionality of these provisions

has been seriously challenged, and we hold the claim of

unconstitutionality to be without merit.

*E.g., we stated at 398 F.2d 606:

Application of Rule 3 definitely will not result in forum-

shopping. A party first deciding to assert a claim after

the expiration of the period prescribed by the New York

statute of limitation will be precluded from doing so under

the federal rule. On the other hand, one who is pre-

paring to sue before the expiration of the statutory period

will gain scant advantage from bringing the action in

the federal court, particularly in view of the additional

sixty day grace period afforded by the New York stat-

ute. ...

For favorable comment on the result in Sylvestri, see, e.g.,

2 Moore's Federal Practice 73.07 [4. 3-la], at 3-101, 3-111 to -113

(1978); Comment, Commencement of a Diversity Action for Stat-

ute of Limitations Purposes, 37 Mo. L. Rev. 734 (1971).

‘See collection uf cases in 27 A.L.R.2d 236, §4 (1952 & Later

Case Service [1970 & 1978 Supp.]}).

7a

I

We assume, then, that under ordinary circumstances,

plaintiff tolled the running of the statute of limitations

by filing her complaint in the Southern District on De-

cember 28, 1976, shortly before the end of the applicable

two year period. Appellant, however, stresses that the

circumstances here were not ordinary, and claims that

when a plaintiff has named the wrong defendant and the

statute of limitations has run, plaintiff may not amend

the complaint and the action is barred. Appellant also

argues that in any event, the delay in serving the right

defendant required dismissal under Rule 41(b) for fail-

ure to prosecute. Plaintiff responds that the inaccuracy

in the complaint was a mere “misnomer” so that amend-

ment under Rule 15(c) was entirely proper and that she

used due diligence in serving the proper defendant.

Whether a “new” party may be added by amendment

under Rule 15 after the statute of limitations has run

is a subject on which much ink has been spilled by courts

and commentators. Prior to 1966, courts had reached

apparently inconsistent, and in some instances, seemingly

harsh conclusions on similar fact patterns. See cases

collected in 6 Wright & Miller, Federal Practice and

Procedure §1498, at 506 nn. 83-84 (1971 & 1977 Supp.)

and 3 Moore’s Federal Practice §f 15.15 [4.-1] to [4-2]

(1974 & 1977-78 Supp.). Rule 15(c) was amended in 1966

in an attempt to establish criteria that would lead to

more uniform and equitable results. See Kaplan, Con-

tinuing Work of the Civil Committee: 1966 Amendments

of the Federal Rules of Civil Procedure (I), 81 Harv. L.

Rev. 356, 407-10 (1967). Rule 15(c) now provides, in

pertinent part,

Whenever the claim or defense asserted in the

amended pleading arose out of the conduct, trans-

action, or occurrence set forth or attempted to be

8a

set forth in the origina) pleading, the amendment

relates back to the date of the original pleading.

An amendment changing the party against whom

a claim is asserted relates back if the foregoing

provision is satisfied and, within the period pro-

vided by law for commencing the action against

him, the party to be brought in by amendment (1)

has received such notice of the institution of the

action that he will not be prejudiced in main-

taining his defense on the merits, and (2) knew

or should have known that, but for a mistake con-

cerning the identity of the proper party, the action

would have been brought against him.

The first sentence of subsection (c) was unchanged by

the amendment, and there is no doubt that the require-

ments of the first sentence were met here. The issue re-

mains as to the requirements of the second sentence,

which was added in 1966.°

Appellant makes much of the coincidence that there

actually were two Dr. Kumars, one of whom plaintiff

attempted to serve shortly after the complaint was filed.

From this, appellant argues that plaintiff intended to

sue the wrong Dr. Kumar. Plaintiff rejoins that she ob-

viously always meant to sue the Dr. Kumar who had

treated her husband in IIlinois, and that the minor mis-

take in spelling defendant’s name was merely a “mis-

nomer.” Although plaintiff clearly has the better of this

*We have no problem in finding that Fed.R.Civ.Proc. 15(c)

applies in federal courts notwithstanding a possibly more re-

strictive state practice. Strong federal policies underlie Rule

15(c). See, eg. 6 Wright & Miller, supra, §1503 at 535. Ap-

plication of the federal standards for relation back will not sig-

nificantly impair state interests or encourage forum shopping.

Id. Other circuits also have reached this conclusion. See, e.g.,

Skidmore v. Syntex Laboratories, Inc., 529 F.2d 1244, 1249 (5th

Cir. 1976); Loudenslager v. Teeple, 466 F.2d 249, 250 (3d Cir.

1972) ; Crowder v. Gordon Transports, Inc., 387 F.2d 413, 415-17

(8th Cir. 1967).

9a

argument, we do not regard it as controlling, unless “mis-

nomers” need not satisfy the criteria of the second sen-

tence of Rule 15(c).

Some courts have held that mere “misnomers” can be

corrected under the first sentence of subsection (c) and

need not meet the requirements set forth in the second

sentence for “changing the party.” See, e. g., Washing-

ton v. T. G. & Y. Stores Co., 324 F. Supp. 849, 856 (W.

D. La. 1971); Wentz v. Alberto Culver Co., 294 F. Supp.

1327, 1328-29 (D. Mont. 1969); Fricks v. Louisville &

Nashville, R.R. Co., 46 F.R.D, 31, 32 (N. D. Ga. 1968).

See also 6 Wright & Miller, supra, $1498 at 513-14; Arm.

ijo v. Welmaker, 58 F.R.D. 558 (D. Ariz. 1973) (allowing

correction of misnomer under Rule 15[a]). Such an in-

terpretation is attractive in a case such as this where

the equities lie with plaintiff and the language of the

Rule poses a problem, as will be seen below. But the

history of the 1966 amendment to the Rule indicates to

the contrary,’ as does the weight of authority.’ More-

over, such a distinction is not helpful in some situations.

When, as here, the mistaken complaint names an actual

"The Advisory Committee's Note to Rule 15(c), 39 F.R.D.

82 (1966) states; ‘‘Rule 15(c) is amplified to state more clearly

when an amendment of a pleading changing the party against

whom a claim is asserted (including an amendment to correct a

misnomer or misdescription of a defendant) shall ‘relate back’ to

the date of the original pleading.’’ (Emphasis added.)

"In most situations courts simply assume that the second

sentence of Rule 15(¢) applies to misnomer amendments with-

out discussing whether this is necessary. See, e.g., Travelers In-

demnity Co. v. United States ex rel. Constr. Specialties Co., 382

F.2d 103 (10th Cir, 1967); Wynne v. United States ex rel. Mid-

states Waterproofing Co., 382 F.2d 699 (10th Cir. 1967); Horwitt

v. Longines Wittnauer Watch Co., 388 F. Supp. 1257, 1258-59

(S.D.N.Y. 1975); Mitchell v. Hendricks, 68 F.R.D, 564, 566 (E.D.

Pa. 1975); Davis Water & Waste Industries v. Jim Wilson, Inc.,

67 F.R.D. 509 (B.D. Tenn. 1974); Brittian v. Belk Gallant Co.,

301 F. Supp. 478 (N.D. Ga. 1969).

10a

person or entity in existence, it is not obvious whether

the amendment corrects a “misnomer” or brings in a

truly “new” party. Analysis of “relation back” under

these circumstances is better accomplished through ap-

plication of the specific guidelines in the second sentence

of Rule 15, than by attempting to draw an arbitrary

line between misnomers and changes of party. Thus, we

conclude that an amendment merely correcting a “mis-

nomer” is nonetheless one “changing the party against

whom a claim is asserted.”

In most “misnomer” cases, however, “the party to be

brought in” by the amendment already knows before the

amendment about plaintiff’s claim and that plaintiff actu-

ally intended to assert it against him. For example,

the plaintiff names a corporation in the complaint in-

stead of a partnership and serves a partner, or incorrectly

spells, in a minor detail, the name of a defendant who

is served, See, e. g., Boatman v. Thomas, 320 F. Supp.

1079 (M. D. Pa. 1971); Dunnan v. Innerst, 50 F.R.D. 372

(M. D. Pa. 1970). In such cases, the amendment should

clearly be allowed uuder Rule 15(¢c). See, e. g., cases

cited in 6 Wright & Miller, supra, §1498 at 513 n. 99,

$1499 at 516 n. 14, 518-20 nn. 17-21 (1971 & 1977 Supp.).

Tn this case, however, the intended Dr. Kumar knew

nothing of the attempted service upon the wrong Dr.

Kumar, and did not get notice until he was served in

May 1976, several months after the statute of limitations

had run. The erucial question, therefore, is whether

“within the period provided by law for commencing the

action against him” defendant

(1)... received such notice of the institution

of the action that he will not be prejudiced in

maintaining his defense on the merits, and (2)

knew or should have known that, but for a mis-

lla

take concerning the identity of the proper party,

the action would have been brought against him.

We believe that the requirements of the Rule were imet.

Although on its face the phrase, “within the period

provided by law for commencing the action against him,”

seems to mean the applicable statute of limitations period,

such a literal interpretation is unjustified in jurisdictions

where timely service of process can be effected after the

statute of limitations has run.* In those jurisdictions,

even an accurately named defendant may not receive

actual notice of the action against him prior to the run-

ning of the statute of limitations. Yet there is no doubt

that the action against him is timely commenced. There

is no reason why a misnamed defendant is entitled to

earlier notice than he would have received had the com-

plaint named him correctly. Calling the problem raised

here a “curious but minor difficulty of interpretation .. .

over the language of the rule referring to the limitations

period,” Professor (now Justice) Benjamin Kaplan, re-

porter for the Advisory Committee on Civil Rules, im-

plicitly criticized a district court decision refusing 1 ‘a-

tion back on facts somewhat similar to these. Kaplan,

"This problem is not limited to circuits where the Sylvestri

rule for diversity cases has been adopted. Even circuits which

have held that state law governs commencement of the action in

diversity cases will often face the problem since many states

follow the approach of Fed.R.Civ.Proc, 3, see note 4 supra, and,

in any event, the federal rule governs actions based on federal

law. See, e.g., Metropolitan Paving Co. v. Internat’l Union of

Operating Engineers, 439 F.2d 300, 306 (10th Cir.), cert. denied,

404 U.S, 829 (1971); Jackson v. Duke, 259 F.2d 3, 6 (5th Cir.

1958); 2 Moore’s Federal Practice, supra, note 3, 13.07 [4, -3-2]

at 3-113 to 3-116.

12a

supra, at 410 & n. 204° Professor Kaplan noted the

anomaly of dismissing an action, which “against the orig-

inal defendant . . . would be considered timely brought

despite the delayed service.” Jd. at 410 n. 204.

We agree that such a result is anomalous and that it

is not required by Rule 15(c)."° This case presents an

excellent situation for specific application of the Rule’s

general admonition that “leave [to amend] shall be freely

given when justice so requires.” Fed.R.Civ.Proc. 15(a).

If plaintiff’s action would have been timely had her com-

plaint correctly named Vijay S. Kumar, even though he

had no notice until four months after expiration of the

limitations period, then we think the minor misspelling

of defendant’s name should not alter this result. We

hold that under Rule 15(¢c) the period within which “the

party to be brought in” must receive notice of the action

includes the reasonable time allowed under the federal

rules for service of process." We think this interpreta-

*The case discussed by Professor Kaplan was Martz vy, Miller

Bros, Co,, 244 F. Supp. 246 (D. Del, 1965). There the plaintiff

filed an action against Miller Brothers Company before expira-

tion of the limitations period, but did not serve process until

three days after the running of the limitations period. Shortly

thereafter, it was discovered that the proper defendant was Miller

Bros, Co, ‘tof Newark,’’ a separate but affiliated firm. Although

the court assumed that service upon Miller Brothers Company

after the statute of limitations had run was nevertheless timely,

the court did not allow relation back of the amendment correcting

the defendant's name because it did not have notice of the ac-

tion prior to the running of the statute. However, the court

questioned ‘‘whether this inconsistency ... would not frequently

defeat the purpose which the [amendment to the rule] was de.

signed to serve,’’ and suggested that the then proposed amend-

ment be changed to extend the notice period to include the time

allowed for service of process, 244 F, Supp. at 254 n, 21,

"In this context, we respectfully disagree with Archuleta v.

Duffy’s Inc, 471 F.2d 33 (10th Cir. 1973) and Simmons v.

Fenton, 480 F.2d 133 (7th Cir, 1973), the decisions principally

relied on by defendant.

“For a thorough discussion of this issue, see generally, Note,

Federal Rule of Civil Procedure 15(¢): Relation Back of Amend-

ments, 57 Minn. L. Rev. 88 (1972).

13a

tion is permissible and desirable and carries out the bene-

icent purpose of the 1966 amendment.”

The key issue then is whether, had there been no at-

tempt to serve the incorrect Dr. Kumar, service on the

intended Dr. Kumar on May 6 would still have been

timely under the federal rules governing service of

process. If so, then the intended Dr. Kumar received

notice “within the period provided by law for commencing

the action against him.” On the question whether plain-

tiff delayed so long in serving defendant that the latter’s

motion under Rule 41(b) had to be granted, Judge Cur-

tin observed:

Although failure to serve the defendant within

a reasonable time may, under some circumstances,

constitute want of prosecution, Messenger v. United

States, 231 F.2d 328 (2d Cir. 1956), as a practical

matter prompt service cannot always be achieved.

In this case, service was delayed because of an

error in the caption adding an “A” to the defend-

ant’s first name, and substituting an “N” for an

“S” as the defendant’s middle initial. The error

occurred because the defendant’s highly unusual

name, Vijay S. Kumar, was not listed in the New

York State Medical Directory and a similar name,

Vijaya N. Kumar, was. The plaintiff’s attorney

assumed that the Dr. V. Kumar found lisied in

the Directory was the same Dr. V. Kumar who

had treated the decedent. Although perhaps he

We can find no case in which we have squarely considered

this construction of Rule 15(¢). In Evans v. United States Vet-

erans Administration Hospital, 391 F.2d 261 (2d Cir. 1968),

cert, denied, 393 U.S. 1040 (1969), plaintiff sued a Veterans Ad-

ministration hospital, but delayed over three and one-half years

before attempting to serve process, clearly an unreasonable period.

Plaintiff was not permitted to add the United States as a party

because the United States had received no notice of the action

within the applicable two-year statute of limitations.

14a

could have gone to greater lengths to verify the

spelling of the doctor’s name, his assumption was

not unreasonable. Once the error was discovered,

the correct defendant was located and served. A\l-

though the lapse of several months between the

time the error was discovered and the time the

defendant was served has not been fully explained

by the plaintiff, this delay in service was not so

unreasonable as to justify dismissal of the claim.'

‘At the same time that the defendant faults the plaintiff for

misspelling his name, the defendant in his reply memorandum of

law lists the defendant as Vijaya N. Kuman. The court cannot

resist the opportunity to comment on the irony of this situation.

We need add little to these observations. More recent

authority confirms that dismissal under Rule 41(b) is dis-

cretionary for the district court, see, e. g., Finley v. Par-

vin Dohrmann Co., 520 F.2d 386, 390-92 (2d Cir. 1975) ;

Joseph Muller Corporation Zurich v. Societe Anonyme

De Gerance Et D’Armament, 508 F.2d 814, 815-16 (2d

Cir. 1974). And Judge Curtin’s exercise of discretion

here was clearly not unreasonable.“ We believe that

defendant, therefore, did receive notice of plaintiff’s claim

“within the period provided by law for commencing the

action against him,” that the judge could properly hold

that plaintiff's amendment did “relate back” under Rule

15(c), and that the statute of limitations did not bar the

action.

Accordingly, we affirm the judgment of the district

court.

Since the Rules do not specify a time period within which

process must be served, courts have based decisions on timeliness

of service under Rules 4(a) and 41(b) on whether plaintiff acted

diligently to obtain service of process and whether the delay

prejudiced the defendant. Delays of a few months generally

have been excused where, as here, the evidence showed a valid

reason for the delay and that plaintiff was not engaging in

dilatory tactics. See, eg., H. Alpers & Assocs. v. Omega Pre-

cision Hand Tools, Inc., 62 F.R.D. 408, 411-12 (1974); 4 Wright

& Miller, Federal Practice and Procedure, §1086 (1969).

15a

APPENDIX B.

Opinion of the District Court.

UNITED STATES DISTRICT COURT,

Western Distrricr or New York.

>

Reperta Incram, as Administratrix of the goods, chat-

tels and credits which were of Walter Ingram, De-

ceased, and Reserta INGram, individually,

Plaintiff,

vs.

Visaya N. Kumar,

Defendant.

Civ-77-281

—_

Appearances:

Julien & Schlesinger, P.C. (David Jaroslawicz, of Coun-

sel), New York, New York, for Plaintiff.

Bower & Gardner (Barbara P. Billauer, Esq., of Coun-

sel), New York, New York, for Defendant.

This case presents a law professor’s dream. The plain-

tiff alleges that the defendant, a neurosurgeon, negligently

treated the plaintiff’s decedent in January of 1975 while

practicing medicine in an Illinois hospital. Sometime

after January 1975, the defendant moved to New York

State. In attempting to locate the defendant for pur-

poses of this lawsuit, the plaintiff’s attorney examined

the New York State Medical Directory and found Vijaya

N. Kumar listed as a doctor residing in Valhalla, New

léa

York. Assuming that the listed individual was the same

Dr. Kumar who had treated the decedent in Illinois, the

plaintiff commenced an action against Vijaya N. Kumar

in the Southern District of New York. The summons

and complaint were filed in federal court on December

28, 1976, alleging diversity of citizenship as the basis of

jurisdiction.

When service was attempted, Dr. Vijaya N. Kumar in-

formed the process server that there apparently had been

some mistake because he had not treated the plaintiff in

Illinois. The plaintiff then located the correct defendant,

Vijay S. Kumar, in Jamestown, New York, and had him

served there on May 6, 1977. The defendant answered,

alleging the two-year Illinois statute of limitations as an

affirmative defense. Since Jamestown is within the

Western District of New York, the case was transferred

to this district.

The defendant now moves for summary judgment based

on the statute of limitations and for dismissal for failure

to prosecute. The defendant contends that he was not

served within the applicable statute of limitations and

that therefore the action is absolutely barred. Although

the complaint was filed in federal court within two years

of the alleged malpractice, the defendant argues that

the filing tolled the statute of limitations only as to the

named defendant, Vijaya N. Kumar, and not as to the

proper defendant, Vijay S. Kumar. He opposes amend-

ing the complaint on the ground that the defendant never

received notice of the pendency of the action within the

limitations period. Finally, he argues that the plaintiff’s

failure to identify and locate Vijay S. Kumar within the

statutory period justifies dismissal of the action for fail-

ure to prosecute.

The plaintiff in response has moved to strike the stat-

ute of limitations defense and to amend the caption of

the pleadings to reflect the proper spelling of the de-

lla

fendant’s name. He takes the position that the statute

of limitations was tolled when the complaint was filed in

federal court and that he now seeks merely to correct

a minor error in the spelling of the defendant’s name. He

also points out that the defendant was not misled by the

error and has not alleged any prejudice other than being

called upon to defend the malpractice action.

The court has carefully considered the papers submit-

ted by the parties and the oral arguments of counsel. For

the reasons stated below, the defendant’s motion is de-

nied, and leave to amend the caption of the pleadings is

granted to the plaintiff.

As to the claim that the plaintiff failed to exercise

due diligence in identifying and serving the defendant,

the court refuses to exercise its discretion under Rule

41(b) of the Federal Rules of Civil Procedure to dismiss

for failure to prosecute. Although failure to serve the

defendant within a reasonable time may, under some cir-

cumstances, constitute want of prosecution, Messenger v.

United States, 231 F.2d 328 (2d Cir. 1956), as a prac-

tical matter prompt service cannot always be achieved.

In this case, service was delayed because of an error in

the caption adding an “A” to the defendant’s first name,

and substituting an “N” for an “S” as the defendant’s

middle initial. The error occurred because the defend-

ant’s highly unusual name, Vijay 8S. Kumar, was not

listed in the New York State Medical Directory and a

similar name, Vijaya N. Kumar, was. The plaintiff’s at-

torney assumed that the Dr. V. Kumar found listed in

the Directory was the same Dr. V. Kumar who had

treated the decedent. Although perhaps he could have

gone to greater lengths to verify the spelling of the doc-

tor’s name, his assumption was not unreasonable. Once

the error was discovered, the correct defendant was lo-

cated and served. Although the lapse of several months

between the time the error was discovered and the time

18a

the defendant was served has not been fully explained

by the plaintiff, this delay in service was not so unreason-

able as to justify dismizszal of the claim.'*

The questions raised by the statute of limitations de-

fense and the motion to amend are closely related: both

turn on a characterization of the nature of the error made

by the plaintiff. Whereas the plaintiff views the error

merely as a misnomer, the defendant argues that it is

one of mistaken identity, constituting a jurisdictional de-

fect.

Turning first to the question of amending the complaint,

two federal rules are relevant. Rule 4(h) provides as

follows:

At any time in its discretion and upon such terms

as it deems just, the court may allow any process

or proof of service thereof to be amended, unless

it clearly appears that material prejudice would

result to the substantial rights of the party against

whom the process issued.

Rule 15(¢), setting forth the circumstances under which

amendments relate back, provides a pertinent part:

Whenever the claim or defense asserted in the

amended pleading arose out of the conduct, trans-

action or occurrence set forth or attempted to be

set forth in the original pleading, the amendment

relates back to the date of the original pleading.

An amendment changing the party against whom

a claim is asserted relates back if the foregoing

provision is satisfied and, within the period pro-

vided by law for commencing the action against

him, the party to be brought in by amendment (1)

*At the same time that the defendant faults the plaintiff for

misspelling his name, the defendant in his reply memorandum of

law lists the defendant as Vijaya N. Kuman. Tbe court cannot

resist the opportunity to comment on the irony of this situation.

19a

has received such notice of the institution of the

action that he will not be prejudiced in maintain-

ing his defense on the merits, and (2) knew or

should have known that, but for a mistake con-

cerning the identity of the proper party, the action

would have been brought against him.

The cases under Rules 4 and 15(¢) distinguish between

amendments bringing new parties into the lawsuit and

amendments correcting misnomers. In the latter situa-

tion but not the former, amendments are allowed after

the statute of limitations has run. 2 Moore’s Federal

Practice | 4.44, at 1295.52-1295.55 (2d ed. 1948); 3 supra

7 15.15 (4.-1), at 1039-1042.

The test for distinguishing between the two types of

amendments is formulated by Moore as follows:

The test should be whether, on the basis of an

objective standard, it is reasonable to conclude

that the plaintiff had in mind a particular entity

or person, merely made a mistake as to the name,

and actually served the entity or person intended;

or whether plaintiff actually meant to serve and

sue a different person. And this test should apply

though the amendment is sought after the statute

of limitations has run as to the person or entity

misnamed in the process.

2 supra J 4.44, at 1295.52-1295.53.

Although the question in this case is a close one, the

plaintiff’s motion to amend seems to be more accurately

characterized as one to correct a misnomer than as one

to substitute parties. This is not a case where a plaintiff

is attempting to introduce a totally new party to the law-

suit after the statute of limitations has run. There is no

doubt that the plaintiff had at all times intended to sue

and serve the neurologist who had treated the decedent

in Illinois in 1975. This intent was clear from the face

20a

of the complaint. The court was aware of the real party

intended, and the defendant admits that he was not mis-

led by the error. The proper defendant was actually

served, and his attorney promptly appeared with full

knowledge that Vijay S. Kumar was the proper defend-

ant.

Since the error qualifies as a misnomer under Moore's

test, the amendment requested by the plaintiff relates

back to the date on which the complaint was filed. It is

well established in the Second Circuit that the statute

of limitations is tolled at the time of filing the complaint

in federal court rather than the time of service. Sylvestri

v. Warner & Swasey Co., 398 F.2d 598 (2d Cir. 1968).

Since the plaintiff’s complaint was filed within the two-

year period, the action is not barred by the statute of

limitations, even though service was not made on the

defendant within two years of the alleged malpractice.

Under Rule 15(a), leave to amend the pleadings “shall

be freely given when justice so requires.” In this case,

the court finds that leave should be granted. The de-

fendant has failed to show that he will be unduly preju-

diced if the plaintiff's motion is granted. The plaintiff's

error was both minor and understandable. Accordingly,

the defendant’s motion is denied and the plaintiff is

granted leave to amend the caption.

So ordered.

Dated: October 31, 1977

JOHN T. CURTIN

United States District Judge