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191 F. Supp. 128

Strauss v. Rex

U.S. District Court

Decided May 23, 1960

U.S. District Court · decided 1960-05-23

Key passage — most relied on by later courts

“"Admittedly, there are two opposing lines of authority on the propriety of permitting an amendment after the running of the statute of limitations which changes the description of the defendant from that of a corporation to an individual. A number of states lean to the view that such an amendment works an entire change of the parties and is tantamount to asserting a new cause of action. These authorities require the filing of an entire new complaint. On the contrary, there is an equally respectable line of cases which hold that if the basic cause of action is not changed and the amendment merely corrects a misnomer or description of the party-defendant, then it is not tantamount to a new cause of action. Most of the Federal cases appear to be aligned with the latter view. It is our view that since the adoption of our New Rules of Civil Procedure on January 1, 1950, Florida can more appropriately align itself with the more liberal view in allowing amendments of this nature. Prior to that date Florida pleading and practice was governed almost entirely by the strict rules and formalities of the common law. "Admittedly, prior to our new rules, the trial judge in this case would have been on very sound ground in denying the requested amendment. This is so because the common law required that the writ strictly follow the declaration or complaint. Our above quoted rules governing amendments, however, as well as other related rules, have introduced much greater liberality into our sy”

quoted by 1 later decision, including 358 So. 2d 577 - Garrido v. Markus, Winter & Spitale Law Firm

““Despite the tendency in our federal courts toward extreme liberality in allowing amendments under Rules 4(h) and 15(a), F.R.Civ.P., 28 U.S.C.A., the court is of the opinion that the effect of the amendment is to substitute for defendant an entirely new party. Unquestionably, plaintiffs attempted to bring suit against the owner of the Howard Johnson Restaurant in Uniontown. However, they named the wrong defendant. Ownership of the particular restaurant in question was not in the named corporate defendant, but in an individual and his wife. Clearly, this is not a case in which a plaintiff seeks to correct a misnomer where the proper party already is in court. See Sechrist v. Palshook, D.C.M.D. Pa.1951, 97 F.Supp. 505 . Neither of the individual defendants is in court. To permit this amendment to relate back to the original complaint would deprive the substituted defendants of their defense of the statute of limitations. Davis v. L. L. Cohen & Company, Inc., 1925, 268 U.S. 638 , 45 S.Ct. 633 , 69 L.Ed. 1129 ; Jacobsen v. United States, D.C.E.D.Pa.1958, 160 F.Supp. 491 ; Lomax v. United States, D.C.E.D.Pa.1957, 155 F.Supp. 354 ; Kernel v. Rackmill, D.C.M.D.Pa.1953, 111 F.Supp. 150 ; Sanders v. Metzger, D.C.E.D.Pa.1946, 66 F.Supp. 262 . “The court is aware of the great hardship which will result from the granting of defendant’s motion. Nevertheless, this is a ,serious risk which must be appreciated by a plaintiff who delays until the period of limitations has almost run before co”

quoted by 1 later decision, including Smith v. Baule

Relies on Davis v. L. L. Cohen & Co. · 155 F. Supp. 354 - Lomax Ex Rel. Lomax v. United States · 111 F. Supp. 150 - Kerner v. Rackmill

Good law ✅— No negative treatment on recordhow we know

Decided 1960-05-23

How this case has been cited

Cited by 7 later decisions — most recently October 1985

3 state decisions

50196019701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

JOHN L. MILLER, District Judge.

¶1In this action for personal injuries, defendant moves to vacate an order of this court dated April 6, 1959, permitting amendment of the complaint, after the running of the statute of limitations1, so as to substitute as party defendants Robert V. Rex and Janet B. Rex, trading as Howard Johnson’s Restaurant in place of the original defendant, The Pennsylvania Turnpike Shops, Inc., a Pennsylvania corporation. Defendant also moves to dismiss the complaint, asserting as a defense the statute of limitations.

¶2The pertinent facts are as follows: Plaintiffs filed their complaint on September 4, 1958, alleging personal injuries sustained on September 6, 1956. The United States Marshal served defendant, The Pennsylvania Turnpike Shops, Inc., a Pennsylvania corporation, on September 8, 1958, “ … by handing to and leaving a true and attested copy of the summons and a copy of the complaint, with Robert V. Rex, Franchise Owner *129and person in charge at his place of business … Service upon defendant was quashed by order dated March 26, 1959. On April 6, 1959, the court granted plaintiffs’ motion to amend the complaint, and thereafter on January 25, 1960, plaintiffs filed their amended complaint naming as defendants, Robert V. Rex and Janet B. Rex, his wife, trading as Howard Johnson’s Restaurant. Service of the amended complaint was made upon defendants on February 2, 1960, “by handing to and leaving a true and attested copy [of the amended complaint] with Robert V. Rex, Owner …

¶3The sole question to be determined is whether the effect of the amendment is merely to correct the name of a party already in court or to substitute for the defendant a new party. As a general rule, it is well settled that if the effect is the former “clearly there is no prejudice in allowing the amendment, even though it relates back to the date of the original complaint. … On the other hand, if the effect of the amendment is to substitute for the defendant a new party, such amendment amounts to a new and independent cause of action and cannot be permitted when the statute of limitations has run.” Sanders v. Metz-ger, D.C.E.D.Pa.1946, 66 F.Supp. 262, 263; 1 Barron and Holtzoff, Federal Practice and Procedure § 448.

¶4Despite the tendency in our federal courts toward extreme liberality in allowing amendments under Rules 4(h) and 15(a), F.R.Civ.P., 28 U.S.C.A., the court is of the opinion that the effect of the amendment is to substitute for defendant an entirely new party. Unquestionably, plaintiffs attempted to bring suit against the owner of the Howard Johnson Restaurant in Uniontown. However, they named the wrong defendant. Ownership of the particular restaurant in question was not in the named corporate defendant, but in an individual and his wife. Clearly, this is not a case in which a plaintiff seeks to correct a misnomer where the proper party already is in court. See Sechrist v. Paslhook, D.C.M.D.Pa.1951, 97 F.Supp. 505. Neither of the individual defendants is in couio. To permit this amendment to relate back to the original complaint would deprive the substituted defendants of their defense of the statute of limitations. Davis v. L. L. Cohen & Company, Inc., 1925, 268 U.S. 638, 45 S.Ct. 638, 69 L.Ed. 1129; Jacobsen v. United States, D.C.E.D.Pa. 1958, 160 F.Supp. 491; Lomax v. United States, D.C.E.D.Pa.1957, 155 F.Supp. 354; Kerner v. Rackmill, D.C.M.D.Pa. 1953, 111 F.Supp. 150; Sanders v. Metzger, D.C.E.D.Pa.1946, 66 F.Supp. 262.

¶5The court is aware of the great hardship which will result from the granting of defendant’s motion. Nevertheless, this is a serious risk which must be appreciated by a plaintiff who delays until the period of limitations has almost run before commencing his action.

¶6Plaintiffs’ claim for personal injuries having been asserted against the substituted defendants more than two years from the time of injury, the motion to dismiss filed by defendants will be granted.

¶7An appropriate order is entered.

¶8. Under Pennsylvania law all actions to recover damages for injury wrongfully done to the person must be brought within two years from the time of injury. Act of June 24, 1895, P.L. 236, 12 P.S. § 34.

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