111 F. Supp. 150 - Kerner v. Rackmill’s Empirical Analysis

Citation profile

2 federal appellate · 1 district · 15 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 34 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “a new and independent [cause] of action and cannot be permitted when the statute of limitations has run.”

   4 later decisions quote this exact passage
   e.g. 251 N.C. App. 712 - Williams v. Advance Auto Parts, Inc. · 14 N.C. App. 736 - Teague v. Asheboro Motor Company

2. ““Plaintiff’s argument is without merit. Not only was a misnomer used for appellee’s name, but, more importantly, the complaint was served on the wrong party. Appellee Rabb & York, Inc., had no notice of the action until the amended complaint was filed on 7 December 1970. Rule 15(c) provides that a claim asserted in an amended pleading relates back to the original pleading, ‘unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.’ To whom must notice be given? The obvious answer is that the claim asserted in the amendment must be against one given notice in the original pleading of the transactions to be proved. Such notice was not given in this case and we believe that the clear words of the statute prevent the amended complaint from relating back to the original complaint. While we find no North Carolina cases under the Rules of Civil Procedure on this point, we find a number of Federal cases to which we look for guidance. The established rule is that, ‘If the effect of the proposed amendment is merely to correct the name of a party already in court, clearly there is no prejudice in allowing the amendment, even though it relates back to the date of the original complaint. (Citations omitted.) On the other hand, if the effect of the amendment is to substitute for the defendant a new party, or add another party, such amendment amounts to a new and independent cl”

   2 later decisions quote this exact passage
   e.g. 184 N.C. App. 613 - State Ex Rel. Cooper v. Ridgeway Brands Manufacturing, LLC · 37 N.C. App. 210 - Callicutt v. American Honda Motor Co.

3. ““In identifying the defendant as ‘Lloyd Rackmill, individually and doing business under the firm name and style of Malibou Dude Ranch,’ . . . the plaintiff evidenced an intent to sue Lloyd Rackmill as an individual and that the words ‘doing business under the firm name and style of Malibou Dude Ranch’ were merely descriptive of the individual, and do not indicate an intent to sue a business entity as well, (citation omitted) It was not the corporation which was misdescribed, but rather Rackmill. The corporation entered no appearance; it was Rackmill who filed the answer. The fact that Rackmill, by virtue of his office, might have been competent to receive service on behalf of the corporation, is immaterial, because the corporation was not bound to take cognizance of an action against Rackmill. (citation omitted) “The proposed amendment is not merely one of form, but [one] of substance, and its effect would be to bring in another defendant, the corporation, which is not presently in court. To permit the amendment relating back to the original complaint would materially prejudice the rights of the corporation by depriving it of its defense, the running of the statute of limitations.” Kerner v. Rackmill, supra, 111 F.Supp. at 151-2 .”

   1 later decision quote this exact passage
   e.g. Longstaff v. Tuthill