The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 06, 2020
2020COA22
No. 19CA0033, Ruiz v. Chappell — Civil Procedure — Amended
and Supplemental Pleadings — Relation Back of Amendments
Disagreeing with Lavarato v. Branney, 210 P.3d 485 (Colo.
App. 2009), a division of the court of appeals adopts instead the
rationale of Krupski v. Costa Crociere S.p.A.,
560 U.S. 538 (2010),
for determining whether an amended complaint relates back to the
filing of the original complaint under C.R.C.P. 15(c). The division
reverses and remands the case for the district court to apply that
rationale. On remand, the court must determine whether the newly
named defendant knew or should have known that, if it were not for
a mistake, the action would have been brought against her, and
whether she received such notice of the commencement of the
action that she will not be prejudiced in maintaining a defense on
the merits to the action. If those criteria are met, the court must
reinstate the complaint against the newly named defendant.
COLORADO COURT OF APPEALS
2020COA22
Court of Appeals No. 19CA0033
Larimer County District Court No. 17CV31098
Honorable Gregory M. Lammons, Judge
Marissa Ruiz,
Plaintiff-Appellant,
v.
Rachel L. Chappell,
Defendant-Appellee.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE TERRY
Webb and Tow, JJ., concur
Announced February 6, 2020
Mintz Law Firm, LLC, Robin E. Scully, Lakewood, Colorado, for Plaintiff-Appellant
Murphy & Decker, P.C., Daniel P. Murphy, David R. Anderson, Denver,
Colorado, for Defendant-Appellee
¶1 In this premises liability suit, plaintiff, Marissa Ruiz, alleged
that she sustained injuries after she slipped and fell on ice on a
walkway outside a 7-Eleven store. She appeals the district court’s
order, which granted summary judgment for defendant, Rachel L.
Chappell, on the basis that the statute of limitations had run on
Ruiz’s claim.
¶2 Ruiz had originally sued only 7-Eleven, Inc., and spent
months negotiating with that company. But the record strongly
suggests that she learned from the company’s motion for summary
judgment — filed after the statute of limitations had expired — that
7-Eleven had a franchise agreement with Chappell that made
Chappell, as franchisee, solely responsible for maintaining the
walkway outside the store. After the court granted summary
judgment for 7-Eleven, Ruiz amended her complaint, naming
Chappell as the sole defendant. In granting Chappell summary
judgment on the amended complaint as time barred, the district
court applied the rationale of Lavarato v. Branney, 210 P.3d 485
(Colo. App. 2009), and ruled that Ruiz’s amended complaint naming
Chappell did not relate back to the filing of her original complaint
under C.R.C.P. 15(c).
1
¶3 We conclude that the court should have instead applied the
rationale of the United States Supreme Court in Krupski v. Costa
Crociere S.p.A., 560 U.S. 538 (2010). That case addressed Fed. R.
Civ. P. 15(c), the pertinent portion of which — though it contains
slightly different wording — is functionally identical to the
corresponding part of C.R.C.P. 15(c). Under the Supreme Court’s
rationale, the district court here should have looked at whether the
proposed new defendant — Chappell — knew or should have known
that, but for a mistake, the suit would have been brought against
her. As a result, we reverse and remand for further proceedings.
I. Background
¶4 After Ruiz’s negotiations with 7-Eleven broke down, she filed a
complaint against the company under the Colorado Premises
Liability Act (PLA). 7-Eleven’s summary judgment motion argued
that it was not a landowner under the PLA because its franchise
agreement allocated the responsibility for walkway maintenance to
Chappell. In entering summary judgment, the court reasoned that
because 7-Eleven did not have possession or control of the
property, it was not liable under the PLA. Ruiz does not appeal this
ruling.
2
¶5 Ruiz then filed an amended complaint naming Chappell as
defendant, but Chappell moved to dismiss the action as time
barred. The court converted Chappell’s motion to dismiss to a
motion for summary judgment, which it granted, concluding that
Ruiz’s amended complaint did not relate back to the date of the
original complaint’s filing. This is the judgment that concerns us
now.
¶6 Relying on Lavarato, the court said that this case does not
involve “a simple misnomer or misidentification,” and concluded
that Ruiz had not made a mistake that would allow her amended
complaint to relate back to her original complaint under C.R.C.P.
15(c). The court said that it appeared that after she had initiated
her action against 7-Eleven, Ruiz discovered that another person
might be liable for her injuries.
II. Preservation and Standard of Review
¶7 Ruiz preserved the argument she now raises on appeal when
she contended in the district court that, as applied to these facts,
Lavarato could no longer be considered persuasive authority in light
of the Supreme Court’s Krupski decision.
3
¶8 Summary judgment is a drastic remedy and should only be
granted when the pleadings and supporting documentation
demonstrate that no genuine issue as to any material fact exists
and the moving party is entitled to judgment as a matter of law.
West Elk Ranch, L.L.C. v. United States, 65 P.3d 479, 481 (Colo.
2002). We review the grant of summary judgment de novo.
Id. The
nonmoving party receives the benefit of all favorable inferences from
the undisputed facts, and all doubts as to the existence of a triable
issue of fact are resolved against the moving party.
Id.
III. Analysis
A. We Adopt Krupski’s Rationale
¶9 Three requirements must be met for a claim in an amended
complaint against a new party to relate back to the filing of the
original complaint under C.R.C.P. 15(c): (1) the claim must have
arisen out of the same conduct, transaction, or occurrence set forth
in the original complaint; (2) the party to be brought in by
amendment received such notice of the institution of the action that
she will not be prejudiced in maintaining her defense on the merits;
and (3) the party to be brought in by amendment knew or should
have known that, but for a mistake concerning the identity of the
4
proper party, the action would have been brought against her.
C.R.C.P. 15(c); see also Lavarato, 210 P.3d at 488.
¶ 10 Our Colorado Rule 15(c) is consistent with Fed. R. Civ. P.
15(c). Because our rule has substantially similar language to the
federal rule, we consider federal cases interpreting the mistake-in-
identity portion of the federal rule as persuasive in interpreting the
corresponding part of our rule. See Lavarato,
210 P.3d at 488-89.
¶ 11 We view the Supreme Court’s unanimous Krupski decision as
well reasoned and influential in interpreting our own Rule 15(c).
There, plaintiff Krupski filed a negligence complaint against Costa
Cruise Lines for injuries she suffered on a cruise ship. Krupski,
560 U.S. at 543. After the statute of limitations had run, Krupski
was made aware that Costa Crociere was the proper defendant, and
she amended the complaint to add that entity as a party.
Id. at
543-44.
¶ 12 The Supreme Court reversed the summary judgment that had
been entered against Krupski, reasoning that the relevant question
under Fed. R. Civ. P. 15(c) is whether the proper entity knew or
should have known that it would have been named as a defendant
but for an error.
Id. at 548.
5
¶ 13 Therefore, the district court here had to determine whether
Chappell knew or should have known that, absent some mistake,
the action would have been brought against her. Id. at 548-49.
¶ 14 As Krupski instructs, the district court should have first
determined whether Ruiz made a deliberate choice to sue 7-Eleven
rather than Chappell, while fully understanding the respective roles
of the two. “[M]aking a deliberate choice to sue one party instead of
another while fully understanding the factual and legal differences
between the two parties is the antithesis of making a mistake
concerning the proper party’s identity.”
Id. at 549. If she did make
such a deliberate choice, then judgment would have been properly
entered against Ruiz.
¶ 15 But if Ruiz did not make such a deliberate choice, then the
court had to determine whether Chappell knew or should have
known that, if it were not for a mistake, Ruiz’s action would have
been brought against Chappell. And if the court were to find that
Chappell did know, or should have known, that she would have
been sued but for a mistake, then the court must determine
whether Chappell received such notice of the commencement of the
6
action that she will not be prejudiced in maintaining a defense on
the merits of the action. See C.R.C.P. 15(c)(2).
¶ 16 We reject Chappell’s contention that because Ruiz did not
know Chappell’s identity when she filed her original complaint,
Krupski does not apply to her case and she is precluded from
claiming that she made a “mistake” regarding the proper
defendant’s identity.
¶ 17 The Krupski Court addressed the issue of a plaintiff’s
knowledge. The trial court in Krupski had concluded that because
the plaintiff either knew or should have known of the proper party’s
identity, she had made a deliberate choice instead of a mistake in
not naming Costa Crociere as a party. 560 U.S. at 548. The
Supreme Court rejected that notion, stating that by focusing on the
plaintiff’s knowledge, the court “chose the wrong starting point.”
Id.
Instead, the focus is on whether the proposed new defendant knew
or should have known that, “but for an error,” the suit would have
been brought against the new defendant.
Id. The Court further
explained that “[i]nformation in the plaintiff’s possession is relevant
only if it bears on the defendant’s understanding of whether the
7
plaintiff made a mistake regarding the proper party’s identity.” Id.
(Emphasis added.)
¶ 18 We are persuaded by the Court’s reasoning in Krupski because
the language of Rule 15(c) focuses the inquiry on the proposed new
defendant’s knowledge, not the plaintiff’s knowledge. We therefore
conclude that Ruiz’s lack of knowledge of the proper defendant’s
identity would not preclude a finding of mistake that might allow
her claim to proceed.
B. “John Doe” Cases
¶ 19 In discussing knowledge of the proper party’s identity,
Chappell cites a number of so-called “John Doe” cases, in which the
plaintiff lacked knowledge of the name of the intended defendant,
naming him as a party in the complaint under a fictitious name
such as “John Doe.” In those cases, the majority of the federal
circuit courts, including the Tenth Circuit, have held that where a
plaintiff lacked knowledge of the intended defendant’s identity and
failed to name him as a party in the complaint, naming him instead
as “John Doe,” the plaintiff did not make a “mistake concerning the
proper party’s identity” within the meaning of Fed. R. Civ. P. 15(c).
See Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004); see also
8
Heglund v. Aitkin County, 871 F.3d 572 (8th Cir. 2017); Smith v.
City of Akron,
476 F. App’x 67, 69 (6th Cir. 2012); Wayne v. Jarvis,
197 F.3d 1098, 1103 (11th Cir. 1999), overruled in part on other
grounds by Manders v. Lee,
338 F.3d 1304 (11th Cir. 2003) (en
banc); Jacobsen v. Osborne,
133 F.3d 315, 320-21 (5th Cir. 1998);
Barrow v. Wethersfield Police Dep’t,
66 F.3d 466, 468-70 (2d Cir.
1995), modified,
74 F.3d 1366 (2d Cir. 1996); Worthington v. Wilson,
8 F.3d 1253, 1256-57 (7th Cir. 1993). But see Varlack v. SWC
Caribbean, Inc.,
550 F.2d 171, 175 (3d Cir. 1977) (concluding that
the plaintiff could amend the complaint to name a defendant who
was initially unnamed where the defendant testified that he knew
that the complaint referred to him).
¶ 20 But those cases are inapposite to our facts. In the “John Doe”
cases, the plaintiffs did not know the proper defendant’s identity
and intentionally failed to give the defendant’s true name in the
complaint. The intentional misnaming of a party is by definition
not a “mistake.” See Ceara v. Deacon,
916 F.3d 208, 213 (2d Cir.
2019) (distinguishing Krupski — where the plaintiff made a mistake
because she misunderstood crucial facts regarding the two
companies’ identities — from “John Doe” cases where the plaintiff is
9
unaware of the defendant’s true identity); Heglund, 871 F.3d at
579-80 (highlighting that a “mistake” involves inadvertence or an
unintentional error through lack of understanding, whereas “John
Doe” cases involve an intentional misidentification).
¶ 21 The “John Doe” cases, therefore, do not affect our ruling.
C. Lavarato
¶ 22 The district court was, of course, bound to apply Lavarato.
See C.A.R. 35(e). In adopting the Krupski Court’s rationale, rather
than Lavarato’s, we do not intend to criticize the ultimate holding of
the division in that case. The facts of Lavarato are distinguishable
from those in this case.
¶ 23 In Lavarato, the plaintiff filed a professional negligence
complaint naming a doctor — Dr. Mann — as the sole defendant.
210 P.3d at 487. After the statute of limitations had expired, the
plaintiff amended his complaint to add a second doctor as a
defendant — Dr. Branney — for separate conduct than that alleged
against Dr. Mann.
Id. The plaintiff said that he was unaware that
he had a claim against Dr. Branney until after he had filed the
original complaint.
Id. at 489.
10
¶ 24 On appeal, the division affirmed the district court’s dismissal
of the plaintiff’s action, concluding that the amended complaint did
not relate back to the original complaint because the plaintiff failed
to meet the mistake requirement. Id. The division relied on federal
case law interpreting Fed. R. Civ. P. 15(c) in holding that a plaintiff’s
ignorance or misunderstanding about who is liable for her injury is
not a “mistake” as to the defendant’s identity.
Id.
¶ 25 The division reasoned that the rule generally permits relation
back in order to correct a misnomer where the proper party is
already before the court and the effect is to merely correct the name
under which the party is sued, and thus, the rule is meant to allow
changes only where they result from an error such as misnomer or
misidentification.
Id. The division noted that “[a] plaintiff is
responsible for determining who is liable for her injury and for
doing so before the statute of limitations expires.”
Id. And the
division concluded that, because Dr. Branney had no reason to
believe that the plaintiff did anything other than make a deliberate
choice to sue one potential defendant, but not others, he could not
have known that but for a mistake in identity, the action was
11
intended to be brought against him. The plaintiff thus could not
meet the tests of Rule 15(c).
¶ 26 Lavarato distinguished its holding from our supreme court’s
decision in Dillingham v. Greeley Publishing Co., 701 P.2d 27 (Colo.
1985). In Dillingham, the plaintiff had filed a complaint against a
corporation that had since been dissolved, intending to sue the
owner of a newspaper.
Id. at 31. When the plaintiff discovered that
the named corporation had sold the newspaper, he moved to amend
his complaint to substitute the correct corporate defendant.
Id.
The supreme court concluded that the plaintiff had shown a
mistake as to the identity of the corporation and held that the
district court should have granted the plaintiff’s motion to amend.
Id.
¶ 27 Lavarato noted that, unlike in Lavarato’s case, Dillingham
“involved the substitution of the correctly named defendant for a
misnamed defendant, and not the proposed addition of a
defendant.” Lavarato,
210 P.3d at 489-90.
¶ 28 The Lavarato division said:
Here, Mr. Lavarato asserts only that he
was unaware that he had a claim against Dr.
Branney until after he filed the original
12
complaint. He did not misname Dr. Branney
or mistake his identity in the original
complaint.
Furthermore, neither the original complaint
nor the amended complaint gave Dr. Branney
any reason to believe that, but for a mistake in
identity, he would have been named as a
defendant. The complaint plainly asserted a
basis for a claim against Dr. Mann, as does the
amended complaint. And, the complaint
identified other doctors involved in the
diagnosis and treatment of Mr. Lavarato’s
condition. There was no reason for Dr.
Branney to have believed that Mr. Lavarato did
anything other than make a deliberate choice
to sue one potential defendant, but not others,
in initially suing only Dr. Mann. For this
reason as well, the third requirement of Rule
15(c) is not met.
Id. at 489.
¶ 29 Unlike this case, Lavarato involved a plaintiff who, only after
the expiration of the statute of limitations, discovered that he had
failed to name a second defendant against whom he also wanted to
assert a claim, based on different actions and responsibilities than
those of the doctor whom he had originally sued.
¶ 30 Ruiz’s pleadings, however, show that she intended to bring her
claim against the party responsible for maintaining the safety of the
walkway outside the store, and appears to have initially believed
13
that party was 7-Eleven. These circumstances make this case
similar to Dillingham, where the plaintiff substituted defendants.
See Dillingham, 701 P.2d at 31.
¶ 31 Lavarato is also different from Krupski in that the Lavarato
division said that Dr. Branney had no reason to know that he would
be named a defendant but for the plaintiff’s mistake.
210 P.3d at
489. We therefore see no fundamental disagreement between our
holding and Lavarato’s.
¶ 32 But we disagree with Lavarato’s statement that a plaintiff’s
“ignorance or misunderstanding about who is liable for her injury is
not a ‘mistake’ as to the defendant’s identity.”
210 P.3d at 489.
This statement is inconsistent with Krupski, see
560 U.S. at 548
(focus is on the proposed new defendant’s knowledge, not on the
plaintiff’s knowledge), and we are persuaded instead by the
Supreme Court’s analysis on this point. See Warne v. Hall,
2016
CO 50, ¶ 17 (recognizing benefit in interpreting similar state and
federal procedural rules in a similar way).
IV. Conclusion
¶ 33 The judgment is reversed, and the case is remanded to the
district court for further proceedings. On remand, the court must
14
first determine whether Ruiz made a deliberate choice to sue 7-
Eleven rather than Chappell, while fully understanding the
respective roles of the two; if that is the case, then that is the
“antithesis of making a mistake concerning the proper party’s
identity,” Krupski, 560 U.S. at 549, and the court must re-enter
summary judgment for Chappell.
¶ 34 If that is not the case, then the court must determine whether,
within the period provided by law for commencing the action under
C.R.C.P. 4(m):
• Chappell knew or should have known that, if it were not
for a mistake, Ruiz’s action would have been brought
against Chappell, see C.R.C.P. 15(c)(2); and
• Chappell received such notice of the commencement of
the action that she will not be prejudiced in maintaining
a defense on the merits to the action, see C.R.C.P.
15(c)(1).
If the court determines that Chappell had such knowledge and will
not be prejudiced by Ruiz’s delay, the court must reinstate Ruiz’s
complaint against Chappell. If there are disputed issues of material
facts on these matters, the court must allow limited discovery and a
15
hearing on these issues before deciding whether to reinstate the
complaint.
JUDGE WEBB and JUDGE TOW concur.
16
