Opinion
Civil Action No. 99-615
May 11, 2000
MEMORANDUM
Plaintiff Lea Childs ("Childs") brought suit against the City of Philadelphia (the "City") and individual police officers for violation of her civil rights and false arrest. Childs amended her complaint to add the Trustees of the University of Pennsylvania (incorrectly identified as Pennsylvania Hospital, "Hospital") (the "University") as a defendant.
Presently before this Court is the motion of the University to dismiss the amended complaint (Document No. 22) pursuant to Federal Rule of Civil Procedure 12(b)(6) contending that the claims against it are barred by the applicable statute of limitations. Jurisdiction is proper pursuant to 28 U.S.C. § 1331 and the Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. The law of Pennsylvania applies. Based on the following analysis, the motion will be granted.
BACKGROUND
The incident leading to this lawsuit occurred on February 8, 1997. Hospital security guards were informed by a snow removal crew member about a possible stabbing. The guards were given a description and a location of the suspected individuals. When the guards arrived at the location, they followed the described individuals until the individuals went into a Thrift Drug store. A police car was parked near the drug store, and the guards informed the officers of the situation. The officers then entered Thrift Drug and arrested Childs and the other individual. Childs was handcuffed and taken to the police station. She was held for several hours. Apparently the victim was unable to identify Childs as the assailant and no criminal charges were ever brought. Childs filed a complaint on February 5, 1999, against the City of Philadelphia and several police officers for violating her civil rights and for false arrested. Childs' unopposed motion for leave to file a second amended complaint was granted on December 7, 1999. Childs filed a second amended complaint adding the University as a defendant on December 16, 1999. The second amended complaint was not served on the University until January 10, 2000. The University has filed a motion to dismiss for failure to state a claim upon which relief can be granted. The University claims that Childs is barred from bringing this action against the University by the statute of limitations.
II. LEGAL STANDARD
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court must determine whether the plaintiff is entitled to relief under any set of facts consistent with the allegations of the complaint. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255 (3d Cir. 1994). In deciding a motion to dismiss under Rule 12(b)(6), the factual allegations in the complaint must be accepted as true and all reasonable inferences that can be drawn therefrom must be viewed in the light most favorable to the plaintiff. Id. A court may, however, also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case. Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994). A motion to dismiss should only be granted if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73 (1984).
III. DISCUSSION
The statute of limitations is governed by Pennsylvania law, which provides that the applicable statute of limitations for a negligence cause of action is two (2) years from the incident. 42 Pa. Cons. Stat. Ann. 5524(2). The incident here occurred on February 8, 1997. The applicable statute of limitations period thus ended on February 8, 1999. Childs filed her second amended complaint adding the University on December 16, 1999, well after the expiration of the statute of limitations.
Childs asserts that the statute of limitations does not bar the complaint under two theories. First, Childs asserts that the claim against the University relates back to the original complaint. Second, Childs asserts that the statute of limitations is equitably tolled.
A. Relation Back
Childs argues that the statute of limitations does not bar her second amended complaint because the complaint against the University relates back to her original complaint and therefore under Federal Rule of Civil Procedure 15(c) does not violate the running of the statute of limitations. The notion of relation back is found in Rule 15(c) which provides:
Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party or against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Rule 15(c)(3) defines the prescribed limitations period as the "period provided by Rule 4(m) for service of the summons and complaint." Fed.R.Civ.P. 15(c). "Rule 4(m) in turn requires service upon a defendant `within 120 days after the filing of the complaint.'" Rims, 1998 WL 188844, at *2 fn 2. Therefore, the properly considered time period under Rule 15(c)(3) is two years and four months from the incident which ended on June 8, 1999.
Childs asserts that she need only satisfy Rule 15(c)(2) for her claims against the University to relate back. However, Rule 15(c)(2) requires that the added new claims (not parties) arise out of the occurrence originally plead. Childs is not attempting to add a new claim, but a new defendant. See Wine v. EMSA Ltd. Partnership, et al., 167 F.R.D. 34, 37 (E.D. Pa 1996).
Where a plaintiff attempts to add a new defendant, the requirements of Rules 15(c)(1) or 15(c)(3) must be met. See id.; Colbert v. City of Philadelphia, 931 F. Supp. 389, 392 (E.D.Pa. 1996). Here, Rule 15(c)(1) is inapplicable because Pennsylvania law does not permit a plaintiff to "add a new party after the expiration of the applicable statute of limitations." Zercher v. Coca-Cola USA, 438 Pa. Super. 142, 145, 651 A.2d 1133, 1134 (Pa.Super.Ct. 1994). Because Childs is not aided by Rule 15(c)(1), the Court must determine whether her amended complaint meets the requirements of Rule 15(c)(3) such that it "relates back." See Wine, 167 F.R.D. at 37.
Rule 15(c)(2) is an element of Rule 15(c)(3). The University does not dispute that Childs has not satisfied the requirement of Rule 15(c)(2) that the claim to be added arose out of the occurrence set forth in the original complaint.
Rule 15(c)(3), in addition to incorporating section (c)(2), is comprised of two relevant subparts, (c)(3)(A) and (c)(3)(B). Because the subparts are in the conjunctive, Childs must meet each of the subparts of Rule 15(c)(3) in order for her amended complaint to relate back to the original complaint. It is the plaintiff who bears the burden of proof for the requirements of Fed.R.Civ.P. 15(c)(3). Wine, 167 F.R. D. at 38;Rims, 1998 WL 188844, at *3.
First, under Rule 15(c)(3)(A), the notice requirement, the Court must determine whether the University received such notice of the institution of the action within 120 days of the first complaint that it would not be prejudiced in maintaining a defense on the merits. Second, under Rule 15(c)(3)(B), the mistake requirement, the Court must determine whether the University knew or should have known within the 120 day period that "but for a mistake concerning the identity of the proper party, the action would have been brought against the party." Fed.R.Civ.P. 15(c)(3).
"Notice is the `linchpin' of Rule 15(c)." Colbert, 931 F. Supp. at 392 (citing Schivone v. Fortune, 477 U.S. 21, 31, 106 S.Ct. 2379, 2385, 91 L.Ed.2d 18 (1986)) accord Johnson v. Goldstein, 580 F. Supp. 327, 329 (E.D.Pa. 1994) (finding that "the notice requirement has been held to be the "critical element" in deciding whether an amendment relates back, even in the context of additional parties.") (citations omitted). "A failure of notice will prevent relation back." Craig v. Salamone, No. CIV.A.98-3685, 1999 WL 213368, at *6 (E.D.Pa. Apr. 8, 1999). Under the notice requirement, Childs demonstrate that the University received notice of the action within two years and four months of the incident such that it will not be prejudiced in maintaining a defense on the merits. See Colbert, 931 F. Supp. at 393; Rims, 1998 WL 188844, at *3. Notice can be formal or informal and need not be actual but may be imputed. See Colbert, 931 F. Supp. at 392 (citing Advanced Power, 801 F. Supp. at 1456); Wine, 167 F.R.D. at 38. Notice is usually imputed where "the original and added parties are so closely related in business or other activities that it is fair to presume the added parties learned of the institution of the action shortly after it was commenced." Wine, 167 F.R.D. at 38 (quoting Advanced Power Sys., Inc. v. Hi-Tech Sys., Inc., 807 F. Supp. 1450, 1456 (E.D.Pa. 1992) (citations omitted)).
Childs has not met the condition of actual notice. Childs asserts that the University received actual notice when it was served with amended complaint. However, the actual or imputed notice must be "within the period provided by Rule 4(m) for service of the summons and complaint." Fed R. Civ. P. 15(c)(3). The amended complaint was not served on the University until January 10, 2000, well outside the 120 day period. Therefore, I find that there was no formal or actual notice.
Childs also alleges that the University had informal notice of this action (or that notice can be imputed) before the lapse of the statute of limitations because the University was working in conjunction with the City. There are no factual averments to support Childs' contention (or even the inference) that the City of Philadelphia and the University are closely related in business or other activity. Nor is there any basis for the proposition that the University learned of the action shortly after it was instituted. This applies to the individual defendants and the University as well. Therefore, there is no basis to impute knowledge to the University nor any factual averment to support a finding that the University had informal notice of the action. Rims, 1998 WL 188844, at *3 (plaintiff must show that defendant received notice of her cause of action within 120 days after her filing of the initial complaint).
Rule 15(c)(3) suggests that the notice must be such that the defendant would not be prejudiced in maintaining a defense. Prejudice is not a separate element of Rule 15(c)(3), it merely modifies or clarifies the notice element. Because there was no notice within the 120 days as required by the rules, I do not reach the issue of prejudice. I find that even absent prejudice to the University, lack of notice is sufficient to disallow relation back.
Additionally, the statute of limitations serves many important functions. It not only expedites litigation by discouraging delay and presentation of stale claims, it also serves the important policy function that defendants at some point should be able to rest assured that no claim will be brought against them. See Aivazoglou v. Drever Furnaces, 418 Pa. Super. 111, 114, 613 A.2d 595, 597 (Pa.Super.Ct. 1992). The statute of limitations provides for the "notion that, at some point, claims should be laid to rest so that security and stability can be restored human affairs." Id. at 115, 595 A.2d at 597-98.
In addition, there are no allegations or basis in fact to find that the University knew or should have known an action would be brought against it but for a mistake concerning its identity. Childs asserts in her response that "it is believed [the University] did have notice of Plaintiff's legal action concerning the February 8, 1997 unlawful arrest of Plaintiff, and therefore, knew or should have know that, but for the error intended and prompted by Defendant the City of Philadelphia's bad faith concealment of relevant and crucial information, it would have also been named as a party." (Plaintiff's Brief in Response at 7). However, there is no foundation to support her assertion that the University knew or should have known that but for a mistake concerning its identity, an action would have been brought against it. Although courts have found that the mistake condition of Rule 15(c) is satisfied "when the original party and added party have a close identity of interests," the existence of such a close identity of interests between the City of Philadelphia and the University of Pennsylvania has not been pled. Wine, 167 F.R.D. at 39 (quoting Johnson v. Goldstein, 850 F. Supp. at 330 (citation omitted)). The factual averments simple do not support an inference that such a close identity of interests exists.
In Wine, the plaintiff attempted to join an additional correctional officer and the Board of Prison Inspectors in her amended complaint. The court found that because the officer interacted with the plaintiff and the plaintiff originally sued seven other officers as Jane or John Does, that it was reasonable to impute the knowledge of the plaintiff's action to another officer. Moreover, the court also found that it was reasonable to impute knowledge to the Board of Prison Inspectors which is responsible for the operation of the prison (already sued in the case). The instant case is distinguishable from Wine, because here there are no averments or evidence in the record that the originally sued party, the City, has any sort of relationship with the University which would give me any reasonable basis to impute knowledge of the suit to it. Childs does not provide any sort of factual basis under which I could find that the University would have been put on notice when the City was sued. This case is clearly distinguishable from Wine. The relationship between the defendants in Wine were close. Childs has made no factual averments to support her claim that the relationships in this case are close. The University is not in a supervisory role to the City, nor vice versa. The Hospital security guards are not associated with the City or the already named police officers. The is simply no basis from which it could be inferred that the University knew or should have known of the suit. Therefore, I find that Childs does not meet the mistake requirement of Rule 15(c)(3)(B).
The court found that the claims of the plaintiff in Wine did relate back, however, the motion of plaintiff to amend the complaint was denied because granting the motion would not have been in the interests of justice. See Wine, 167 F.R.D. at 40.
Because Childs has not provided any evidence that the University had notice of the suit within the 120 day period, or that it knew or had reason to know that the action would have been brought against it, the claim does not relate back.
Equitable Tolling
Equitable tolling of the statute of limitations after the period has expired is allowable under three circumstances. The statute of limitations may be tolled when:
(1) the defendant has actively misled the plaintiff respecting the cause of action,
(2) the plaintiff has in some extraordinary way been prevented from asserting his rights, or
(3) the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum.School Dist. of the City of Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981) (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978)).
Contrary to the assertions made by Childs, I find that there is no evidence that there has been active misleading of Childs at any time. Childs has failed to make any factual assertions regarding the City actively misleading her prior to the expiration of the statute of limitations. Childs filed the original complaint in this lawsuit three days before the expiration of the statute of limitations. She has failed to assert or show how the City actively misled her respecting the lawsuit at any time prior to the expiration of the statute of limitations. Furthermore, the police report of Childs' arrest is a public document which was available to Childs prior to filing her complaint. This police report contained the names of Pennsylvania Hospital security officer and the phone number of the Pennsylvania Hospital Security Station. (Reply of Defendant, Trustees of the University of Pennsylvania (incorrectly identified as Pennsylvania Hospital), to Plaintiff's Response to Defendant's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted, Exh. B). Moreover, pursuant to the automatic disclosures required by Federal Rule of Civil Procedure 16(a)(1), by letter dated April 19, 1999, the City of Philadelphia specifically named and informed Childs that security guards at the Pennsylvania Hospital may have information relevant to the disputed facts. (Id., Exh. C). Childs filed her first complaint on February 5, 1999. The statute of limitations for this complaint expired on February 8, 1999. The automatic discovery disclosures containing the information about the security guards were sent on April 19, 1999, well within the 120 day period allowed under Rule 15(c). Moreover, the police report containing the names of the security officers is a public document which was available to Childs before she filed her complaint.
I conclude as well that Childs has not been prevented in an extraordinary way from asserting her rights. Childs was fully able to assert her rights at any point prior to the running of the statute of limitations as well as at any point during the 120 day period after the running of the statute of limitations. In addition, although Childs cannot assert her rights against the University if this motion is granted, her rights against all other allegedly responsible primary actors have been preserved.
Finally, there is no claim or evidence that Childs has not raised the precise claim at issue but mistakenly done so in the wrong forum. Adding a completely new defendant is not the same as raising the precise issue in the wrong forum. Prior to this one, there has not been a claim against the University in any forum. Therefore, the third ground for equitable tolling does not apply. Because Childs does not meet any of the grounds upon which equitable tolling is applicable, the statute of limitations will not thus be avoided.
IV. CONCLUSION
Based upon the foregoing analysis, the motion of the University will be granted. An appropriate Order follows.
Because I grant the motion to dismiss, I do not reach the issue of punitive damages.
ORDER
AND NOW this ___ th day of May, 2000, upon consideration of the motion of defendant, Trustees of the University of Pennsylvania (incorrectly identified as Pennsylvania Hospital), to dismiss (Document No. 22), the response of plaintiff and reply thereto, and based upon the foregoing analysis, it is hereby ORDERED that the motion is GRANTED and the complaint is DISMISSED as to Pennsylvania Hospital only.This is not a final Order.