Petition for Writ of Certiorari — Craig v. United States

PREME COURT.0& ~~ |

| Toros I/O |

Supreme Court of the United |States atiaeote

;

ELIZABETH ELAINE CRAIG, et al., he

\ “i : -} °,e

~ 3 6 Petitioner,

US. es

THE UNITED STATES OF AMERICA, et. al.,

at, , Respondent.

Petition for a Writ of Certiorari to the United States

_____ Court of Appeals for the Ninth Circuit.

PETER J. HUGHES, ©

2550 Fifth Avenue,

Suite 515,

San Diego, Calif. 92103,

Counsel for. Petitioner.

epleey usin

Wa ter P. CHRISTENSEN,

2550 Fifth Avenue, “

_ Suite 515; ae

San Diego, Calif. 92103,

Of Counsel. eee kes:

. ‘a

Parker & Son, Inc., Law Printers, Los Angeles. Phone 685-9790

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SUBJECT INDEX _

oe Pr aS oe Paani sh _ Page.

Opinions Below ...... nishinieisteedht see hin:

Jurisdiction eeecceeceeeen ERNE Poa Cee TE

Questions Presented ........ silecsilediasiaidataadioutsel 2

| Statutes, Federal Rules, and Regulations tiecbvel 3

OI vvntnesinvccetserisobooasasics j Snisaiie \

Reasons for, Granting the Writ ........ 6

. , APPENDIX

; Opinion of the United States Court of Appeals for !

the Ninth Circuit .... i

Memorandum of Decisiati Denying Libellant’s Mo-

tion to Amend Her Complaint by Adding | Litton

| Systems, Inc. as a Party Respondent ....... = a

Pertinent Portions of 46 U.S.C.A. pections 761- |

ee <)>

Pertinent Portions of Rule 15(c) of the Federal

Rules of Civil Procedure 15 :

a

°

TABLE OF AUTHORITIES CITED..

Cases Page

California Stevedore & Ballast Co. v. Pan-Atlantic

ks Pe he EE Setcnsrcntntnoeneniinn ike

Phillips v. U.S., 127 Fed. :Supp. 912 .............. 4, 5,

-Sigurdson v. Del Guercio, 241 F.2d 480 ccccssseee

eee Vv. Ritz, 382 F. 2d a

Rules °

Federal Rules of Civil Procedure, Rule 15(c) saa

inisisatiicalsepajulsiancaeia aula amineate y a a Se 7,

Statutes

‘United States Code Annotated, Title 28, Sec. 1254

OD) cictiienntadtenbemedinnibnacias

United. States Code Annotated, Title 46, ‘Mice 761-

ates a AR nea eRe INS 2 4

United States Code Acie’: ~~ 46, See, 763 ....

aa

-/

_ IN THE

Supreme Court of the United States

rae

. October Term, 1969

" a “aici | 7 i

; 4 .

ELIZABETH ELAINE CRAIG, et al.,.° |

| Petitioner,

US.

THE UNITED STATES OF AMERICA, ét. al.,

: Respowudent.

- Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

-

Petitioner prays -that a ‘Writ of Certiorari issue to

review the Judgment of the United States. Court of *

Appeals for the Ninth Circuit entered on — 24, 1969. .

Opinions Below.

“The opinion of the District Court for the Southern

District of California is réported at 284 Fed. Supp. 697.

' The opinion of the Court of Appeals for the Ninth

Circuit is reported PERE | Fe. prmenee

J urisdiction.

The Judgment of the Court of Appeals for, the Ninth -

Circuit was made and entered -on June 24, 1969

and a copy thereof is appended to this petition in the Ap-

pendix at pp. ........ OE cds The opinion of the District

“Court is appended to this petition in the Appendix at.pp.

Sap castes The jurisdiction of this Court is invoked un-

der 28 U.S.C.A. Section 1254 (1)...

\

oo —“‘i‘_OS—

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bad

Questions Presented.

In a suit under the Death of the High Seas Act, .

46 U.S. C.A..Sections 761-768, which was based upon - |

_ Admiralty’ law; the.amother on her behalf, and upon the

behalf of her six surviving children’ sought recovery,

for damages, for the death of her husband ‘in an air-

plane. crash aboard the aircraft carrier U.S.S. ‘CON-

STELLATION. The action was timely filed within

the two years required by 46 U.S.C,A. Section 763

against several named defendants and “Does I through.

X”’. When petitioner sought to serve Litton Systems,

Inc., as Doe I after the running of.the statute of lim-

itations the District Court refused to allow the, aménd-

‘ment: (1) to substitute Litton Systems, ‘Inc.,‘as Doe |

I; or (2) _to allow the amendment adding Litton Sys-

tems, Inc., to relate back to the time of filing the action,

or (3) to allow Litton Systems, Inc., to be brought in ~

-as a party after the running of the statute ‘of limitations

as a new party defendant.’ The “Court of Appeals af-

firmed.and so the questions presented are: :

‘1. Whether the us¢ of a fictitiously named defend-

‘ant in an Admiralty action where jurisdiction is not

, predicated upon diversity of citizenship is proper?

2. . Whether the Federal Rules of Civil Procedure

‘Rule 15(c) ‘pre-empt an Admiralty Court from estab-

lishing rules: of procedure to see: that justice. is* done,

between the parties? |

3.. Must the Federal Rules of, Civil Procedure be

narrowly construed when a _queStion is presented that

is not covered nor contemplated bythe rules? - °

1Tt is of interest to note ‘that Litton Systems, Inc. has been a

party to companion litigation arising out of the accident brought

by a seaman named Sevits [R. pp. 40 and 54] and is also attempt-.

‘ing to be dismissed out and not defend .or the merits.

o

Statutes, Federal Rules, and Regulations Involved. _

The pertinent portions of 46 U.S. C/A. Sections 761- .

768 and Rule 15(c) of the~Federal ‘Rules’ of Civil -

Procedure are set forth i in the Appendix at PP-.. sckcaae to. 3

Statement.’ :

This action arises from the death of a pilot. in’

; crash of his aircraft aboard the U.S.S. CONSTELLA-

TION off thé'coast of Okinawa on Augiist 19, 1963

[R. pp. 4.and 5]. The:complaint namés as defendants

“the United States of America, Timken Roller. Bearing

Company, Aluminum Company ‘of. ‘America, | Bethlehem. |

Steel Corporation McKiernan-Terry Corporation, and

‘Does I through X [R. p. 2]. The thrust of the com-

plaint is for negligence on the part of the. defendants

in the manufacture of thé arresting gear: resulting” i in:

a defect proximately causing the ‘crash of the aircraft .

; [R. pp. 2 and 3- 5]. A eent exe yy

_ In the body of the complairit there is‘an: ‘pSlega tio

in Paragraph number III [R. p- 3] as.follows toe

“The true names and capacities, whether individual,

corporate, associate-or otherwise, -of respondents,

Does I through X, are unknown to libellant, who

3 therefore; sues said responddnts by such fictitious

_names. Libellant is informed and believes and ‘there-

on alleges that each ‘of the respondents, herein

designated as a Doe is responsible in some man-_

ner for the events and happenings herein referred

_to and caused. injuries and damages proximately

thereby as hereinafter alleged.’

** e

- There is in addition to the shite 5 ilegation a charg-

ing clause specifically alleging that Does I through X

did carelessly, ‘and ‘negligently construct, design, engi-

neer, fabricate, manufacture, equip, supply and main-

wy. -4

« tain the arresting gear assembly on board the U.S.S.

CONSTELLATION [R. p.. 5]. Libellant candidly al-

leged that she was in doubt as to which of the re-

spondents. was negligent and requested leave of Court

to prove which one or ones were responsible at the time

of trial [R. p. 5].

- Jurisdiction in the Federal District Court was based

upon the Death on the High Seas Act, Title 46 U.S.C.A.

Sections 761 to 768 [R. p. 2] and the complaint was

filed on August 16, 1965 within two years of the

date of death [R. p. 2]. | )

» An alias citation was issued on February 24, 1966

and Litton Systems, Inc., was served as Doe I on

February 28,7 1966 [R. ‘pp. 12 and 13]. Litton Sys-

tems, Inc., appeared specially and expected to’ the alias

citation. The District Court ‘requested: that petitioner

make a motion wnder Rule 15(c) to permit the naming

of defendants by fictitious name; to permit the amend-

ment to the libel by adding Litton Systems, Inc., as a

"ns as of the, date of service-of the alias Summons;

. _ and to permit the adding of Littofi Systems, Inc., as

_ of the date of the motion, This motion was filed on

November 16, 1966 [R. pp. 31 and 32] and was set

for hearing on November 28, 1966. “Exceptions were

filed by Litton Systems, Inc., and the District Court °

_ entered its order denying petitioner the right to amend

on May 31, 1967 which order was filed on June 2

1967 [R. pp. 91 and 93}.

The memorandum decision acknowledged that there

was scant authority for the use of fictitiously named

defendants in admiralty relying upon Phillips v. U.S.,

N.D. Cal. 1955, 127 Fed. Supp. 912 and then went on

to hold that Rule 15(c)»of the Federal Rules of Civil

’

/ an

rr

—5— .

PF tH

Procedure required a showing of netice of the institu-

tion of the action within the statutory period of a de-

fendant [R. pp--91-93]. Petitioner appealed to the

_ United States Court of Appeals for the Ninth Circuit.

On appeal the Court of Appeals affirmed. The Court

acknowledged that‘there was no provision in. the Fed-

eral Statutes or Ft) of Civil Procedure au-

-thorizing or prohibiting’ the use of fictitious parties and

indicated that. at least in “diversity” cases (emphasis

_added) the Court had expressed disapproval citing Tole-.

free v. Ritz, 9 Cir., 382 F.2d 566, 567 and Sigurdson

v. el Guercio, 9 Cir,, 241 F. 2d 480. So far.as admiral-

’ ty rules and procedure are concerned the Court alluded to

the traditional liberality arid indicated that Phillips v.

United States, N.D. Cal., 127 Fed. Supp. 912 permitted

such a practice. Some doubt was expressed concerning

the practfe in admiralty by citing California Stevedore

& Ballast Co. v. Pan-Atlantic S.S. Corp., 9 Cir., 291

F. 2d 252, 253. This left the Court undecided as to

whether such a practice in admiralty was or was not

permissible.

The Court then went on to say that Rule 15(c)

is the only rule that can be used in any case, whether

civil or in admiralty; and, since no provision is e

for fictitiously named defendants petitioner must

within a construction of the ‘provisions of Rule 15(c)\

to bring in any additional parties. Under the: facts as.

viewed by the Court Litton Systems, Inc., had no notice

_ of the action within the period of limitations and

therefere could not be brought into the case after the

expiration of the statutory period, pursuant to the rule

d language contained in arabic numeral one of Rule

(c).

REASONS FOR GRANTING THE WRIT.

The’ decision below should be reviewed because it

encroaches upon the power of an Admiralty Court to _

regulate proceedings in order to administer substantial

justice between the parties. At the present time an ad-

miralty. claimant is urged ‘to forum shop ‘within the

Federal District Courts to find a Court that is favorable

to his position. Had petitioner herein filed her action in -

the Northerni District of California where the Phillips

case cited supra was decided, fictitiously named defend-

ants could be sued and rought into the case under the

running of the statute of limitations. and Litton Sys-

tems, Inc., would now be a defendant. The prior body

of admiralty law as layed down by admiralty courts

will be emasculated and it is necessary to have the ques-

tion settled as to whether or not admiralty rules are

still in addition to the Federal Rules of Civil Procedure,

“especially the body of judge made law that has existed

for many years ip this area.

t is admitted by the District Court and the Circuit

Court that there is no provision in the Federal Rules

of Civil Procedure that permit or exclude the use of

fictitiously named defendants. They also admit that such

a practice is permitted in admiralty by the Phillips case

cited supra. The Circuit Court erroneously takes the po-

sition that they have expressed some doubt as to this

practice in the California Stevedore case cited supra.

This opinion clearly holds that when fictitious named ~

defendants are dismissed in admiralty the action may

be re-instated after ‘the running of the statute of limi-

tations, this is contrary to the opinion in the Circuit

— below.

Perea hia 4

seo a

It should be decided once and for all whether or not

fictitiously named defendants may be sued in admiralty

matters. If they cannot then a decision so stating should

be handed down and this petition will provide a’ settle-

ment of the question. If they cam then amendments to

show the true names when ascertained should be al-

lowed.

Petitioner as the surviving widow of a deceased pilot |

who was killed aboard a first line fighting ship of “the.

U.S. Navy cannot be requited.to discover (emphasis

added) the names of all the manufacturers, and succes-

sors im interest thereto, of the vessel And ‘its parts,

within the‘statutory period of limitations. To so hold

is a complete refusal to consider the practical aspects of

litigation, especially one that could be as complicated.as

the present one. Under the decision of the ‘Court below

the statute of limitations is changed into a statute of

discovery. If a defendant is not discovered within the

limitation period he cannot be sued.

Petitioner’s hands were tied by the Court’s require- -

‘ment that Rule 15(&> be adhered to in making her mo-

‘tion when it is obvious that the situation presented is

not within the purview of the rule nor was it ever -

considered by the promulgators of the rule. The advisory

committee never considered the use of a party by way

of fictitious names avhen they set up the new require--

ments for Rule 15(c) in 1966. It is apparent that they -

were considering technical defenses in actions against

the Secretary of Health, Education and Welfare in the

notice requirements due to changes in the name of the

Secretary. Rule 15(c) was. forced upon petitioner as

the only vehicle for amendment since no provision was

* made in the Rules for fictitiously named parties. Under

9 . tO pe Sat FR HY Ui SBS Bai. es Nh ECE DR Late, Ewe Soe PD Oe er A scale 55

nls

‘the construction of Rule 15(c) in order to bring in a

new party it must be shown that he knew of the

institution of the action against him. With the naming

of a defendant fictitiously such a procedure would be

ia impossible. No one could be shown to have notice of a

law suit unless he was. specifically named in it: Peti-

tioner should not be forced into using a rule that it is

impossible to comply with. The case at bench will result

in a hardship because petitioner has been deprived of

the liberality of admiralty and has been forced to ac-

cept an impossible position under a non-applicable rule.

~

Conclusion.

Q

Petitioner recognizes that this Court is reluctant to

enter into questions of procedure that they are best. left

. to the Circuit.Courts but it is submitted that the Fed-

eral Rules of Civil Procedure and the judge made: Ad-

miralty rules should be used for decisions on the merits

and not on the basis of technicalities. One should not ;

exclude the other. Rule 1 specifically provides that they

are to be construed to secure the just, speedy, and in-

expensive determination of every action. The applica-

tion of a Federal Rule of Civil Procedure to an admiralty

proposition has created a serious question to the validity

of traditional admiralty concepts.

It is respectfully requested that this petition for a

Writ of Certiorari be granted. -

PETER J. HUGHEs,

Counsel for Petitioner.

\

WALTER P. CHRISTENSEN,

Of Counsel. .

De ect Rah

{

- | APPENDIX.

Opinion of the United States Court of Appeals ©

_ for the Ninth Circuit. |

In the United. States Court of Appeals for the Ninth

Circuit. sates?

Elizabeth Elaine Craig, Acvsiehstratrie of the Estate ”

of Robert J. Craig, Appellant, v. The United States

of America, Timken Roller Bearing Company, a corpo-

ration; Aluminum Company of America, a corporation;

Bethlehem Steel Corporation, a corporation; McKiernan-

‘Terry Corporation, a corperation; and ee I through

X, Appellees. No. 22319.

Appeal from the United States District Court for

the Southern District of California.

Before: HAMLEY and DUNIWAY, Circuit Judges,

and BYRNE, District Judge* i

HAMLEY, Circuit Judge:

Elizabeth U.aine Craig, Administratrix of the Estate -

‘of Robert J. Craig, filed-this wrongful death action on

August 16, 1965. She alleged that, on August 19, 1963,.

Robert J. Craig was killed on the high seas off Okinawa

while attempting to land his military airplane on the

‘aircraft carrier the U.S.S. CONSTELLATION. Ac-

cording to the complaint, the accident was caused by. the

_ negligence of the defendants resulting in defects in the

arresting equipment of the vessel.- District court juris-

_ , diction was based on the Death on the High Seas Act,

3 ioe US. S$ 761-768 (1964).

*The Honorable William M. Byrne, Senior United’ States

| District Judge for the Central District of California, — by

° designation.

@ » « ee Ay - J. DN OP ae eee ee PS aT we Bai My 6 oh ks Shree ip dite ar. ake}

Pan ‘eet &

The defendants named in the complaint were the

United States, Timken Roller Bearing Company, Alumi-

num Company of America, Bethlehem, Steel Corpora-

tion, McKiernan-Terry Corporation, ind “Does I

through X.” Plaintiff caused service of an alias citation

and a copy.of the complaint to be made \upon Litton

Systems, Inc. (Litton) as “Doe I,” on February 28,

1966. Litton appeared specially, ake that the alias

citation was issued prematurely and that Litton had

not properly been brought before the court.

-The ‘court ordered plaintiff to serve and file a motion

for leave to amend the complaint to place Litton before

the court) postponing argument on Litton’s exceptions

until argument was had on the motion to amend. The

motion was thereafter filed and served. Following argu-

ment on the motion and exceptions, the court denied

plaintiff’s motion to amend the complaint by naming «

Litton in substitution of “Doe I.” Plaintiff appeals. °

The limitations -period for. actions filed under the

., Death on the High Seas Act is two years from the date

of the wrongful act. 46 U.S.C. § 763. Accordingly,

the statute of limitations had run with regard to this

action by. August 19, 1965. As indicated above, the alias

citation and a copy of the complaint? were served upon

* Litton on February 23, 1966.

The district court held that the two-year statute of

limitations bars plaintiff’s claim against Litton unless,

applying the: principles stated in Rule 15(c), Federal

Rules of Civil Procedure, the proposed amendment of

the complaint, adding Litton as an additional party, re-

lates back to the date of the original complaint. The

district court further held that, applying those principles

Ns SI lh aS” ARAL Sl a PA thts kU a a

ee a —j—

to the circumstances of the case, plaintiff’s said

- amended complaint did not relate back.

Plaintiff argues that, regardless of Rule 15(c), i

‘an action is timely with respect to a sateen

defendant, it is not barred as to an actual defendant

named in lieu of the fictitious defendant im an amend-

ed complaint filed after the statute has run.

_ There is no provision in the federal statutes or Fed-

-eral Rules of Civil Procedure either authorizing or ex-

pressly prohibiting the use of fictitious parties. How-

ever, this court has at least twice expressed disapproval

of the practice. In Tolefree.y. ‘Ritz, 9 Cir., 382 F.2d

566, 567, a civil rights action, we held that it was proper

to dismiss the action as to fictitious defendants. In

_ Sigurdson v. Del Guercio, 9 Cir., 241 F.2d 480, an

action for a declaratory judgment and to enjoin certain

action by immigration officers, this court said:

“These John Doe complaints are dangerous at any

time. It is inviting disaster to. allow them to be

filed and to‘allow fictitious persons to remain de-

fendants if the complaint is still of record. Ap-- |

propriate action has been taken by the trial court .

on its own motion ‘in some such cases. Although

the “fact that the Rules. of Civil Procedure, 28

U.S.C.A,, contain no express prohibition upon. ‘the

subject, ehere is no authority of which we are

aware for the’ joining of fictitious defendants in |

an action under a federal statute. These defendants"

should have been: eliminated by motion of Del

Guercio. . . .” (241 F.2d at 482, footnote omitted)?

In diversity actions the difficulties. encountered when fic-

titious parties are named have been dealt with a number of times.

(This footnote is continued on the next page)

\

- amended rules shall govern all,

This is an action in admiralty, and one district court

has expressed approval-of the practice of naming fic-

titious defendants -in an admiralty suit, in view of the

traditional liberality as to pleadings in admiralty. Phil-

lips v. United States, N.D. Cal., 127 F.Supp. 912. On

the other hand, this court has expressed doubt concern: .

ing the practice even in admiralty suits. See C alifornia \

Stevedore & Ballast Co. v. Pan-Atlantic S.S. ‘Corp., 91

F.2d 252, 253.

The only purpose the naming of fictitious Abeta

.. could possibly serve is to make it possible to substitute

named defendants after the statute of liniitations has

run. But Rule 15(c), Federal Rules of Civil Procedure,

provides the only way in which defendants, not accurate-

fy named in a pleading before the -limitation period has

run, may be accurately named afterwards. That rule,

which pertains to the relation back of the pleadings,

makes. no mention of the pleading of fictitious parties.

It is therefore wholly immaterial, insofar as the applica- '

tion of that rule is concerned,-whether fictitious de-

fendants were named prior to the oe of Bc stat-

ute.” .

See Sykes v. United States, 9 Cit, 290 at d-555, 556; Grigg v.

Southern Pacific Co., 9 Cir., 246 F.2d 613, 620; Molnar v.

N.B.C., 9 Gir., 231 F.2d 684, 687 ; Roth: v. Davis, 9 ii 231

F.2d 681, 683. - :

2While there are some kinds of civil proceedings i in which the

Federal Rules of Civil Procedure do not apply, the rules do apply — =

“in suits in admiralty with exceptions not’ here relevant. See

Rules 1 and 81(a)(1), Federal Rules of Civil Procedure, as . ;

, amended in 1966.

‘This action was ‘commenced on August 16, 1965, prior to the

effective date of amended Rule 15 (c). The order of the Supreme

Court, dated February 28, 1966, promulgating the 1966 amend-_

ments of the Federal Rules of Civil Procedure, provides that the _

er preceedings in actions

the amended rules “. . . except

pending on the effective dat

z pen

It may be, although this is ‘not entirely clear, that

plaintiff*is also arguing that under-Rule 15(c) and

apart from the naming of fictitious defendants in. the

original complaint, ‘the amended complaint naming Lit-

ton-for the first time relates back to the date of the

original pleading. .

Under Rule 15(c), an amended complaint “changing”

the party against whom a claim is asserted relates back

to the date of the 6riginal pleading only if all three of- .

the following conditio ~~ are met: (1) the claim asserted

in the amended plea ing arose out of the conduct, trans-

, action, or occurrence’ set forth or attempted to be set

forth in the original ‘pleading; (2) within the period

provided by law for commencing the action against him,

the party to be brought in by amendment has received

such “notice of the institution of ‘the action” that he —

will not be prejudiced in maintaining his defense. on

_ the merits; and (3) within the period provided by law

for commerteing the action against him,. the party to

be brought ig 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.®

to the extent that in the opinion of the court their application

in a particular action then pending would not be feasible ‘or

- would work injustice, in which event the former procedure ap-

plies.”. The Supreme Court order is quoted in 28 U.S.C.A., Rules

59 to End, Cum.Ann. Pocket Part, page 231, followirig Rule 86.

In our opinion, the application of the amended form of that rule

is’ feasible and would not work an injustice in this case. Neither

party here questions the applicability of Rule 15(c) as amended

in 1966, and in fact, plaintiff. relies upon ‘the amended <form of

this rule i in her argument on this appeal.

_ - SFor present purposes we assume, but we do not decide, that

the naming of a new: defendant in addition to and not in lieu

_ (This footnote is continued on the next page)

+ : j a oe ae

The district court held. that Litton did not receive

such notice,of the institution of this action, prior to the

running of the statute of?limitations, as to enable it to

maintain its defense without prejudice, and that there-

for the second-of the above-stated conditions of Rule

15(c) had not been met. On this ground, the court

denied the motion to amend the complaint to - name

Litton as an additional party. |

, . The facts. concerning -Litton’s notice of the institu-

tion of this action are not in dispute. A seaman who

was injured in the same accident in which pilot Craig

was killed brought an action for damages within* the

statytory period against Litton and others in the United

States District Court for the Southern District of New

York. The action was entitled Sevits v. McKiernan-

Terry C orporation, et al., 65 Civ. 1804. Prior to the

rumping of the statute, Litton inyestigated the facts

relevant to that lawsuit.

However, while the instant action, involving the death

of a pilot in the same accident; was_instituted prior «to

‘the running of the statute, there is nothing in the ree---

ord to show that Litton knew or had reason 1 to know

of this lawsuit before thé statutory period had run. The

of another defendant’ misnamed_in the original nplaint, con-

stitutes the any = 0 party within the ling of Rule

15(c): Compare States v. Western Ci ty & Surety

Co., 6 Cir., 2d 521, 523; Storey uv. Garrett Corp., N.D.

Cal., 4 .D. 301, 304; and King wv. Udall, D.D.C., 266 F.Supp.

747, 749; with Williams v. United States, 5 Cir.» 405 F.24 234,

237 ; Travelers Insurance Co. v. Brown, 5 Cir., 338 F.2d 229,

234; and Meredith v. United Air Lines, S.D. Cal., 41 F-RD.

39. See also, Rural Fire Protection Co. v. Hepp, 9 Cir.,

365 F.2d 355, 362. a

‘ ’ \ , ny Aa

notes of the Advisory Committee following the 1966

amendment of Rule 15(c), state that notices of the in-

stitution of the action ‘ ‘need not be formal,” but here *

Litton received no notice, formal and informal, of the

institution of the action.

It follows thdt if the oid of the second condition~

of Rule 15(@), “notice of the institution of the action,”

mean notice, within the statutory period, of the filing

of the lawsuit, thaf condition was not fulfilled apart

from the “prejudice” factor. It would also follow that

the third condition was not fulfilled because that con- +

dition is also premised upon notice of the “action” prior

to the running of the statute.

Plaintiff argues, in effect, however, that “action”

used in Rule 15(c) means incident giving risé to the

action and that since Litton kn the incident before

the statute had run second and third conditions

our opinion, “action,” as used in Rule 15(c),

means a lawsuit, and not the incident giving rise to a

lawsuit. The relevant words are “notice of the institu-

_ tion of the action. lawsuit is instituted; an incident a

is not.

- Moreover, even if the rule means fiotice of the in-

cident rather than notice of the institution of the action,

there. was a failure to fulfill the futher requirement of °

the second condition that the notice be such that the

new defendant \“will not be prejudiced in —

. his defense. on th merits.”

—s— °

While Litton had, prior to thé running of the statute,

investigated the factual issues relevant to seaman Sev-

its’ suit, it was not shown to have investigated addi-

tional factual issues .relating primarily to the suit now

before us. In our suit the decedent was the pilot of the

airplane. He crashed into the sea while attempting. to

land on the wae 4d carrier. Therefore, as ‘to this suit,

the facts pretaining to the pilot’s acts and omissions

at the time of the accident have a direct bearing upon

the amount of recovery, whereas they may have only

incidental relevance in seaman Sevits’ suit.* Under

these circumstances it cannot be said that notice of the

, but not of the institution of this action, with-

tutory period, did not prejudice Litton in main-

taining its defense to the action. .

=

We therefore hold that the district court did not err

in denying the motion for leave to amend the com-

plaint to add Litton as an additional defendant.

Affirmed. ©

‘

i

‘Contributory negligence is an issue in a case based on the

Death on the High Seas Act. While it does not bar recovery,

the degree of’ attributable to the decedent -is to be

taken -_ consideration ‘in fixing the amount of recovery... ‘See

46 U.S.C. § 766 (1964). |

ied: ©

Memorandum of Decision Denying: Libellant’s Mo-

tion to Amend Her Complaint by Adding Litton

Systems, Inc. as a Party Res ndent.

United States District Court, ric ca of

California. | ?

Elizabeth Elane Craig, Administratrix of the Estate

of Robert J. Craig,\deceased, Libellant, vs. The United

States of America; Fimkin Rollerbeari Company, a

corporation ; Aluminum Company of America, a cor-

‘poration; Bethlehem Steel Corporation, a corporation;

McKiernan-Terry Corporation, a corporation; and

Does I through X, Respondents. In Admiralty No.

3371-SD-C. 7 ‘

On August 16, 1965 Libellant filed her libel based on.

the Death on the High Seas Act, 46 U.S.C.A. 761-768.

The caption named several respondents including Does

I through X. The transaction giving -rise to the libel

occurred on August 19, 1963 on a certain aircraft car-

rier being operated: on the high seas near the Island of

Okinawa. Libellant’s husband was killed when an air-

plane he was piloting crashed into the sea after an at-.

tempted landing on the aircraft carrier.

On November 16, 1966 Libellant filed a motion to

add Litton Systems, Inc. as a respondent in the action

as of February 28, 1966, the date Litton Systems, Inc.

was served with a copy of the libel. The motion was -

made pursuant to Rule.15 of the Federal Rules of Civil

Procedure. ‘

ESE

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Fae {je

Rule 15 provides, in part, in subsection (c): “An

amendment changing the party against whom a claim

is asserted relates back if the foregding provision is

satisfied and, within the period provided by law for

commencing the action against him, the party to be

brought in by amendmient (1) has 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 mistake

concerning the identity of the proper party, the action

would have been brought against him.”\)

The statute ‘of limitations for actions brought under

the Death on the High Seas Act is two years. 46

U.S.C.A. 763. In this case, the statute began to run

on August 19, 1963. BE,

There are two questions presented on the motion:

(1). Whether the use of fictitious defendants is

proper in admiralty.

(2) If the use of fictitious defendants is proper,

may plaintiff amend her complaint to “add” Litton

Systems, Inc. as a respondent in the action and have

the amendment relate ‘back to the date the complaint

was filed under Rule 15 (c) of the Federal Rules of

Civil Procedure? | , |

Although there .is no federal statute authorizing the

use of fictitious “Doe” defendants in the federal court,

there is some scant case authority supporting the prop-

ostion that the use of “Doe” defendants is proper in

pe ET

admiralty. Phillips v. U.S., 127 F.Supp, 912 mae “4

Cal. 1955). | ase

However, in order to amend the compla int and have

‘ the amendment relate back to the time the ip hE

was filed thereby defeating the statute of limitation$ in

46 U.S.C.A. 763, the Libellant must satisfy the | re-

quirements of Rule 15(c), F.R.Civ.P. Specifically, |Li-

bellant must show that the party to be added inthe

action has “received such notice of the institution of] the

action that he will not be prejudiced in maintaining) his

defense on the merits, . . .” Furthermore, the notice _

of the action must have been received by the party

' sought to be added, within the period provided by|law —

for commencing the-a¢tion against him. It has not ..

been contended by Libellant that Litton Systems did re-

ceive such notice of the institution of the action. as

However, Libellant has argued that the party sought:

to be brought in need only know of the “occurrénce”

pee rise to the cause of action in order for

the amendment to the libel to relate back to the time

of filing“tnder Rule 15(c), F.R.Civ.P. In support of \

that proposition, Libellant relies on four cases. Kelcey

Vv. Tankers Company, 217 F.2d 541 (2d Cir. - 1954);

Overfield” v. Pennroad Corp., 39 F.Supp. 482 (E.D.

Pa. 1941); Taormina Corporation v. Escobedo, 254

“F.2d 171 ‘(5th Cir. 1968); and Hartford Accident

and Indemnity Co. v. Interstate Equipment Corp., 81 |

F.Supp. 357 (D.C.N.J. 1948). None Bean cases sup-

port Libellant’s position. In Kelcey and Overfield, the |

C=

amendments brought inftho new defendants. In Taor-

mina and Hartford Accident, all ‘defendants brought -

in by amendment had notice of the institution of the

_action within the period provided by law for commenc-

> ing the action against ther

Assuming Litton ass Inc. did: know of the oc-

_ currence, it still had a right to rely on the two year

‘statute of limitations in 46 U.S.C.A. 763. It is one '

thing to know of an occurrence which may give rise to

a lawsuit, another to know you are being sued. Libel-

lant has failed to carry its burden. of showing that =.

Litton Systems, . Inc. had n¢tice of the institution of the

action within the period provided by law for commenc-

ing the action against it. Con quently, the_motion seek-

i ing to add Litton Systems,

c. aS a respondent by

amending the complaint must be denied. |

SO ORDERED. |

Jesse W. Curtis ny. ra)

Chief United States District ‘ice :

or,

iY -

; ‘

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a

Pertinent Portions of 46 U.S.C.A. Sections 761-768.

§ 761. Right of Action; Where and by Whom Brought.

Whenever the death of ‘a person shall be caused by

wrongful act, neglect, or default occurring on the high -

seas beyond a marine league from the shore of any

State, or the District of Columbia, or the Territories

or dependencies of the United States, the personal rep-

resentative of the decedent may maintain a suit for

damages in the district courts of the United States, in

admiralty, for the exclusive benefit of the decedent’s

wife, husband, parent, child, or dependent relative

against the vessel, person, or corporation which would

have been liable if death had not*ensued. Mar. 30, aoe,

c. 111, § 1, 41 Stat. 537.

§ 762. \ See and Apportionment of Recovery,

The recovery in such suit shall be a fair and just

compensation for the pecuniary loss sustained by the

persons for whose benefit the suit is brought and shall

be apportioned among them by the court in proportion

to the loss they may severally have suffered by reason

of thé death of the person by whose representative the

suit is brought. Mar. 30, 1920, c. 111, § 2, 41 Stat. 537.

§ 763. Limitations. Se

Suit shall be begun within’ “two years from the date

of such wrongful act, rieglect, or default, unless during °

_ that period there has noté been reasonable opportunity

for securing jurisdiction of the vessel, person, or cor-

poration sought to be charged; ‘but after the expiration

of such period of two years: the right of action hereby

given shall not be deemed to have lapsed until ninety

days after a reasonable opportunity. to secure jurisdic--

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tion has offered. Mar. 30, 1920, c. 111, '§ 3, 41 Stat.

537.

§ 764. Rights of Action Given by Laws of Foreign |

‘Countries. a

Wherever a right of action is granted bythe law of

any foreign State on account of death by wrongful act,

neglect, or default occurring upon the high seas, such |

‘right may ‘be maintained in an appropriate action in

admiralty in the courts of the United States without

abatement in respect to the amount for which recovery

is authorized, any statute of the United States to the

contrary notwithstanding. Mar. 30, 1920, c. 111, § 4,

41 Stat. 537.

§ 765. Death of Plaintiff Pending Action.

If a person die as the result of such wrongful act,

neglect, or default as is mentioned in section 761 of this

title during the pendency in a court of admiralty of

the United States of a suit to recover damages for per-

sonal injuries in respect of such act, neglect, or default,

the personal representative of the decedent may be sub-

- stituted as a-party ‘and the suit may proceed as a suit

under this chapter for the recovery of the_compensa-

tion provided in : section 762 of this title. Mar. 30, 1920,

c. iit, § 5, 41 Stat. 537.

§ 766. Contributory Negligence.

In suits under this chapter the fact that the decedent

has been guilty of cofitributory negligence shall not

bar recovery, but, the court shall take into consideration

the degree of negligence attributablesto the decedent °

and reduce the recovery secpancieey Mar. 30, 1920, Cc.

111, § 6, 41 Stat. 537,

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4 wks

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= of : —15—-

§ 767. Exceptions From Operation of Chapter.

The provisions of any State statute giving ‘or regu-

ting rights of action or remedies for death shall not

be\affected by this chapter. Nor shall this chapter apply .

to the Great Lakes or to any waters, within the ter-

ritorial limits of any State, or to any navigable waters -

in the Panama Canal Zone. Mar. 30, 1920, c. 111, —.

§ 7, 41 Stat. 538. \ 1

= Sap ox nee ; Fd :

Pertinent Portions of Rule 15(c) of the

Federal Rules of Civil Procedure.. :

Rule 15. Amended and Supplemental Pleadings.

KOK OK OK OK OK OK OK

(c) Relation Back of Amendments. Whenever. the

claim or defense asserted in the amended pleading arose

out of the conduct, transaction, 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 provided

a by law for commencing the action against him, the party

| to be brought in by amendment (1) has received such

notice of the institiition 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 ’

mistake concerning the identity of the proper party, the '

action would have been brought against him. (ae

The delivery or mailing ‘of process to the United

States’ Attorney, .or.his designee, or the Attorney Gen-

eralof thé United States or an agency or officer who |

tris would have been a proper defendant if named, satisfies

—s

., —16—

the pentiiveenend: of clauses (1). and (2) hereof with :

respect to the United States or any agency or officer

thereof to- be brought into the action as a defendant:

(d) Supplemental Pleadings. Upon motion of a party

the court may, upon reasonable -notice and upon such

‘terms as are just, permit him to ‘serve a supplemental |

pleading setting forth transactions or occurrences’ or

events which have happened since the date of the plead-

ing sought to be supplemented. Permission may be

granted even though the original pleading is defective in

its statement of a claim for relief or defense. If the —

court deems it advisable that the adverse party plead to

. the supplemental pleading, it shall so order, specifying

the time therefor. As amended Jan. 21, 1963, eff. July

1, 1963; Feb. 28, 1966, eff. July 1, 1966.

_—

nt)