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36. Should the court grant the twin sister's motion to dismiss?
The court granted the traveler leave to amend his complaint to change the named defendant to the twin sister, who moved to dismiss based on the statute of limitations having expired.
A traveler filed a negligence suit in federal court against a bus driver for injuries he sustained from an accident with the driver. In actuality, the person driving the bus when the accident occurred was the driver's twin sister. Service of the complaint naming the driver as the defendant was timely made on the twin sister, who forwarded the complaint to the driver's liability insurer. The insurer provided verification to the traveler's attorney that the named defendant, the driver, was in another state at the time of the accident, and the bus was being driven by the twin sister. Thereafter, the statute of limitations on the traveler's claim expired.
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Here, all the requirements for relation back are met. Among other things, the twin sister received notice of the lawsuit within the period provided for serving the summons and complaint as evidenced by the attempted service on her. Thus, she will not be prejudiced in her defense and should have known that but for the traveler's confusion of the bus driver and her twin sister, the action would have been brought against the twin sister. The twin sister had knowledge of the lawsuit because service of the complaint was attempted on the twin sister instead of the bus driver.
A is incorrect. Under the FRCP, an amendment that changes the party against whom a claim is asserted relates back to the date of the original complaint. The amendment must assert a claim that arose out of the conduct set out in the original complaint and, within the period provided for serving the summons and complaint, the party to be brought in received such notice of the action that it will not be prejudiced in defending on the merits and knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity. Here, all requirements for relation back are met, as stated above.
B is incorrect. The statute of limitations is not a defense if the complaint relates back to the date the original complaint was filed. The complaint does relate back in this case, for the reasons set forth above.
D is incorrect. The name change was not simply a misnomer permitted as a matter of course. A misnomer is where the defendant is merely referred to by an erroneous name (e.g., Gloria rather than Lori). Here, the traveler is seeking to sue someone other than the person that he initially sued.