Hon. John J. DiMotto
In Wisconsin, a party may amend the party's pleadings once as a matter of course at any time within 6 months after the summons and complaint are filed or within the time set in a scheduling order. Otherwise a party may amend one's pleadings only by leave of court or by written consent of the adverse party. However, leave shall be freely given at any stage of the action when justice so requires. see Wis. Stats. 802.09(1).
An issue does arise when the amendment is filed after the statute of limitations for the action has run. In this circumstance, a determination must be made as to whether the amendment "relates back" to the date of the filing of the original pleading. This issue is addressed in Wis. Stats. 802.09(3) and in case law.
Under 802.09(3), "if the claim asserted in the amended pleading arose out of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading. An amendment changing the party against whom the claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against such party, the party to be brought in by amendment has received such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits, and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against such party."
Is this doctrine straightforward? Maybe. Is this doctrine "case specific? Absolutely. Does case law give judges and attorney's guidance? Yes. Is case law "definitive?" Nothing in the case law is definitive.
Groom v. Professionals Ins. Co., 179 Wis.2d (Ct. App. 1993): In this case, the plaintiff filed an amended complaint adding a doctor and medical group after the statute of limitations had run. The court found that 802.09(3) was not applicable because there was no mistake as to the identity of the proper party to allow the relation back.
Biggart v. Barstad, 182 Wis.2d 421 (Ct. App. 1994): In this case, the plaintiff filed an amended complaint adding an insurance company with respect to two of its insureds after the statute of limitations had run. The court indicated that the statute allowing "relating back" [802.09(3)] implicates a notice issue. The court set forth: "Adequate notice in the original complaint of the transaction, events occurrence out of which the amended claims arise is essential if a party's statutory right to the protections of the statutes of limitations are to be guaranteed. Here the court found insufficient notice as to one of the insureds but sufficient as to the second insured.
Grothe v. Valley Coatings Inc., 239 Wis.2d 406 (Ct. App. 2000): In discussing the Relation Back Doctrine the court set forth that:
1) Notice is necessary
2) Basic claim must have arisen out of conduct set forth in the original pleadings
3) The party knew or should have known that but for the mistake concerning identity,the action would have been brought against it
4) Conditions 1 and 2 must have been fulfilled within the prescribed limitations period.
Estate of Hegarty v. Beauchaine, 249 Wis.2d 142 (Ct. App. 2001): In this case, the court indicated that the "changing the party" language in 802.09(3) includes:
1) Substitution of a new defendant for the present defendant
2) Addition of a new defendant
3) Changing stated capacity of the defendant
4) Changing a misdescription or misnaming of a defendant.
The court set forth that when a plaintiff wants to add a party, in order to do so there must have existed a mistake concerning the identity of the proper party now being added when the original pleading was filed. The court indicated that "identity" is defined as "the collective aspect of the set of characteristics by which
a thing is definitively recognizable or known. We interpret this to include an individual's name and physical characteristics which, taken as a whole, distinguish that person from another person, signifying their individuality."
Gross v. Woodman's Food Market, Inc., 259 Wis.2d 181 (Ct. App. 2002): In discussing the relation back doctrine, the court indicated that if the claim asserted in the amendment arises out of the same transaction, occurrence or event set forth in the original complaint, relation back is "presumptively appropriate." However, the court can deny relation back if it would be prejudicial to the other party.
Bartels v. Rural Mut. Ins. Co., 275 Wis.2d 739 (Ct. App. 2004): In this case, the court indicated that an amended complaint cannot resurrect an original complaint that was not properly commenced. The court further stated that if a party is given fair notice within the statutory time limit of the facts out of which the claim arises it is not deprived of any protections that the statute of limitations was designed to afford. The court reiterated that the Relation Back Doctrine has four conditions:
1) The basic claim must have arisen out of conduct set forth in the original pleading.
2) The party to be brought in must have received notice so it will not be prejudiced in maintaining its defense
3) The party knew or should have known that but for mistake of identity the action would have been brought
against it and
4) Most significantly, conditions 2 and 3 must have been fulfilled within the prescribed statute of limitations period.
Dakin v. Marciniak, 280 Wis.2d 491 (Ct. App. 2005): In this case, the court indicated that adequate notice in the complaint is necessary if the statute of limitations protection is to be guaranteed. Formal and reasonable notice must be given. The court set forth that constructive notice is not good enough to allow relation back to apply to a new party. The court also indicated that the discovery rule is not applicable and dthat not all parties must be known before the statute of limitations starts running.
Barnes v. WISCO Hotel Group, 318 Wis.2d 537 (Ct. App. 2009): In this case, the court found that the relation back doctrine did not apply because the new party added to the amended complaint after the statute of limitations ran had no notice before it ran. Where there is no notice there is no relation back.
Tews v. NHI, LLC, 330 Wis.2d 389 (2010): In this case the court set forth that the purpose of the Relation Back statute -- 802.09(3) -- is to ameliorate the effect of the statute of limitations in situations where the opposing party has received fair notice of the claim. The court stated that "pleading should not be a game of skill in which one misstep by counsel may be decisive of the outcome .. therefore, Wisconsin has abandoned the highly formal concepts of common law form pleading in favor of a more functional concept of notice pleading." When a defendant is added as a party after the statute of limitations has run and all requirements of the Relation Back statute are satisfied - fair notice has been provided and the added defendant has been given full benefit of the protection that the statute of limitations was intended to provide. The court reiterated that the Relation Back statute requires:
1) The claim asserted arose out of the same transaction, occurrence or event set forth in the original complaint
2) Within the time period provided by law for commencing the action the defendant received notice of the institution of the action and that it will not be prejudiced in maintaining a defense on the merits
3) Within the time period provided by law for commencing the action the defendant knew or should have known that but for mistake concerning identity of proper party that the action would have been brought against the added defendant.
The court went on to indicate that the statute of limitations is not to be used mechanically to prevent adjudication of a claim where real parties in interest were sufficiently alerted to proceedings or were involved in them unofficially from an early stage. Once the Relation Back Doctrine's requirements are met, relation - back is mandated.
Wiley v. MMN Laufer Family Ltd Partnership, 338 Wis.2d 178 (Ct. App. 2011): In this case the court held that suing a business did not give notice to the building owner that it was a proper party. The facts were not such that the building owner knew or should have known that but for a mistake concerning identity the action would have been brought against it.
A careful examination of case law reveals that the Relation Back Doctrine is all about "Notice." It is incumbent upon a plaintiff's counsel to undertake a sufficient investigation to uncover the identity of all party defendants before the statute of limitations runs. In the event counsel is unable to do so, or in the event that counsel is unsuccessful within the statute of limitations, it is critical that an investigation be undertaken to factually establish actual notice of the action by the party to be added before the statute of limitations ran and to factually establish that the party to be added knew or should have known that but for mistake of identity the action would have been brought against it sooner.