Suing the Wrong Defendant and Tennessee’s Relation Back Doctrine

The Court of Appeals clarified the requirements for an amended complaint to relate back to the filing date when the plaintiff mistakenly sues the wrong defendant. 

In Ward v. Wilkinson Real Estate Advisors, Inc., No. E2013-01256-COA-R3-CV, (Tenn. Ct. App. Nov. 30, 2013) Plaintiff sued Glazers for a slip and fall about a week before the one year statute of limitations for personal injury cases expired. Plaintiff quickly found out that Glazers had nothing to do with the property where Plaintiff fell. The day after the statute of limitations expired, Plaintiff filed an amended complaint suing several others who we will collectively call the  "Wilkinsons," who did own the property at issue, and served the amended complaint on Wilkinsons within two months. The trial court granted summary judgment to Wilkinsons based on the statute of limitations.

The Court of Appeals affirmed, with a concurring opinion by Judge Susano. The majority rejected Plaintiff’s contention that the amended complaint related back to the original filing based on Tenn. R. Civ. P. 15.03, which provides:

Whenever the claim or defense asserted in the amended pleadings 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 or the naming of the party by or against whom a claim is asserted relates back if the foregoing provision is satisfied and if, within the period provided by law for commencing an action or within 120 days after commencement of the action, the party to be brought in by amendment (1) 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 (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 the party.

(Emphasis in majority opinion.) 

The majority explained that Rule 15.03 has two separate requirements that must occur within 120 days: (1) notice to the new defendant to avoid prejudice in defending the case; and (2) knowledge that they would have been sued but for a mistaken identity. The majority held that Plaintiff satisfied the notice requirement, but could not satisfy the knowledge requirement because Wilkinsons were not aware of the complaint at all “prior to receiving formal notice of the amended complaint.”

In his concurring opinion, Judge Susano elaborated on why Plaintiff could not satisfy the knowledge requirement. Judge Susano explained that the language of Rule 15.03 indicates that the new defendant must have known or had reason to know of the mistaken identity prior to filing of the amendment. Because Wilkinsons were unaware of the lawsuit at all until they were served with the amended complaint, Plaintiff could not establish any reason why Wilkinsons should have known of the misnomer in the original complaint.

As far as I can tell, this is new law. It certainly is not based on any prior Tennessee opinion addressing Rule 15.03, and a peek through Federal Practice and Procedure reveals no similar explanation of the knowledge requirement. The Court of Appeals appears to have broken new ground in Ward without acknowledging it.

So what should a plaintiff do if he or she realizes a mistaken identity problem after the statute of limitations has expired, but within 120 days of filing the original complaint? Do everything reasonable to communicate to the new defendants about the complaint and the mistake before filing an amended complaint. Send letters, faxes, call, or email or whatever can be backed up in an affidavit in response to a summary judgment motion if need be. But do it all before filing the amended complaint, or else the safety net of Rule 15.03 will have a gaping hole in it.