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584 F.2d 234

Docket No. 78-1054.

Sassi v. Breier

Seventh Circuit Court of Appeals

Argued Sept. 19, 1978.

Decided Oct. 6, 1978.

Seventh Circuit Court of Appeals · decided 1978-10-06

2 counsel of record

Key passage — most relied on by later courts

“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 by law for commencing the action against him, the party to be brought in by amendment (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.”

quoted by 3 later decisions, including Leaon v. Washington County, 45 Wash. App. 291 - Kiehn v. Nelsen's Tire Company

“to hold otherwise could have an unwarranted impact upon the salutary purposes of statutes of limitations.”

quoted by 1 later decision, including Appleton Electric Company v. Graves Truck Line Inc

Applies 42 U.S.C. § 1983 (Civil Rights Act of 1871 / Section 1983 (Ku Klux Klan Act))

Relies on Chambers v. Maroney · Varlack v. SWC Caribbean, Inc. · Craig v. United States

Good law ✅— No negative treatment on recordhow we know

Decided 1978-10-06

How this case has been cited

Cited by 38 later decisions — most recently November 2003 · most notably Wood v. Worachek (1980), Wudtke v. Davel (1997)

16 federal appellate · 7 district · 5 state decisions

2201978198019902000decided

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 →

¶1Robert E. Sutton, Milwaukee, Wis., for plaintiff-appellant.

¶2Grant F. Langley, Milwaukee, Wis., for defendants-appellees.

¶3Before CUMMINGS, PELL and WOOD, Circuit Judges.

¶4HARLINGTON WOOD, Jr., Circuit Judge.

¶5On June 17, 1976, two days before the statute of limitations would have barred his cause of action, plaintiff filed a complaint alleging a violation of his civil rights under 42 U.S.C. § 1983, naming certain defendants, not involved in this appeal, and designating certain other defendants as “unknown and unidentified members of the Milwaukee Police Department, designated as John Doe and Richard Doe, et al.” After the statute of limitations had run, plaintiff moved to amend his complaint which was allowed. The amended complaint substituted by name the previously unknown police officers.

¶6The newly named defendants moved to dismiss the amended complaint as barred by the statute of limitations. Defendants’ motion was supported by affidavits indicating *235that they had had no notice of the action until served with copies of the amended complaint which was after the statute of limitations had run. Plaintiff failed to respond to the motion to dismiss or to the affidavits.1 Treating the motion to dismiss as a motion for summary judgment, the trial court granted the motion. 76 F.R.D. 487 (E.D.Wis.1977). We affirm.

¶7To determine whether the amended complaint filed after the expiration of the statute of limitations may be considered as relating back to the original complaint filed within the statute of limitations, Rule 15(c) of the Federal Rules of Civil Procedure, must be applied.2 It is apparent on the face of the pleadings that the claim asserted in the amended complaint arose out of the same occurrences alleged in the original complaint. However, there is nothing in the record to offset the affidavits of the newly named defendants to show that within the statute of limitations those defendants had received any type of notice, or knew or should have known that but for mistake or even lack of knowledge of their identities that the newly named defendants would have been named as original defendants. Thus there is no basis to disturb the findings of the district court on those issues.

¶8We do not consider that the naming of a “John Doe” defendant in the complaint tolls the statute of limitations until such time as a named defendant may be substituted. It constitutes a change of parties within Rule 15(c), and the newly named defendant sought to be substituted for “John Doe” becomes a new party. Varlack v. SWG Caribbean, Inc., 550 F.2d 171, 174 (3rd Cir. 1977); Craig v. United States, 413 F.2d 854 (9th Cir.), cert. denied, 396 U.S. 987, 90 S.Ct. 483, 24 L.Ed.2d 451 (1969). To hold otherwise could have an unwarranted impact upon the salutary purposes of statutes of limitations.

¶9We Affirm.

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