CHIEF JUSTICE MAYNARD delivered the Opinion of the Court.
2. “Under the 1998 amendments to Rule 15(c)(3) of the West Virginia Rules of Civil Procedure, before a plaintiff may amend a complaint to add a new defendant, it must be established that the newly-added defendant (1) received notice of the original action 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 newly-added defendant, prior to the running of the statute of limitation or within the period prescribed for service of the summons and complaint, whichever is greater. To the extent that the Syllabus of Maxwell v. Eastern Associated Coal Corp., 183 W.Va. 70, 394 S.E.2d 54 (1990) conflicts with this holding, it is hereby modified.” Syllabus Point 9, Brooks v. Isinghood, 213 W.Va. 675, 584 S.E.2d 531 (2003).
3. “The purpose of the words 'and leave [to amend] shall be freely given when justice so requires' in Rule 15(a) W.Va. R. Civ. P., is to secure an adjudication on the merits of the controversy as would be secured under identical factual situations in the absence of procedural impediments; therefore, motions to amend should always be granted under Rule 15 when: (1) the amendment permits the presentation of the merits of the action; (2) the adverse party is not prejudiced by the sudden assertion of the subject of the amendment; and (3) the adverse party can be given ample opportunity to meet the issue.” Syllabus Point 3, Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973).
4. “While Rule 15(c)(3) of the West Virginia Rules of Civil Procedure [1998] requires that a party to be brought in by amendment receive notice of the institution of the original action, the form of the notice may be either formal or informal, and does not require service of the original complaint or summons upon the party affected by the amendment.” Syllabus Point 6, Brooks v. Isinghood, 213 W.Va. 675, 584 S.E.2d 531 (2003).
5. “Under Rule 15(c)(3)(B) of the West Virginia Rules of Civil Procedure [1998], a “mistake concerning the identity of the proper party” can include a mistake by a plaintiff of either law or fact, so long as the plaintiff's mistake resulted in a failure to identify, and assert a claim against, the proper defendant. A court considering whether a mistake has occurred should focus on whether the failure to include the proper defendant was an error and not a deliberate strategy.” Syllabus Point 7, Brooks v. Isinghood, 213 W.Va. 675, 584 S.E.2d 531 (2003).
6. Under Rule 15(c)(3)(B) of the West Virginia Rules of Civil Procedure,
a “mistake concerning the identity of the proper party” may include the circumstance where
the complaint names a “John Doe” defendant due to the plaintiff's lack of knowledge of the
proper defendant where the filing of the “John Doe” complaint is not part of a deliberate
strategy to achieve an advantage and the plaintiff's lack of knowledge is not due to the
plaintiff's dilatory conduct in identifying the proper defendant prior to the expiration of the
applicable statute of limitations.
Maynard, Chief Justice:
In this appeal, the appellant and plaintiff below, Linda Muto, appeals the
January 16, 2007, order of the Circuit Court of Grant County that dismissed her amended
complaint against the appellees and defendants below, Larry Scott, individually, Larry Scott
Ltd. Co., and Larado Construction Sales, LLC, after finding that the appellant's amended
complaint did not relate back to her original complaint. As a result, the circuit court found
that the amended complaint was untimely. After careful consideration of the arguments of
the parties, we conclude that under Rule 15(c)(3) of the West Virginia Rules of Civil
Procedure, the amended complaint relates back to the date the original complaint was filed
which was a date within the two-year statute of limitations. Therefore, we reverse the circuit
court's dismissal of the amended complaint and remand the case for further proceedings.
An amendment of a pleading relates back to the date of the original pleading when: . . . . (2) 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; or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing paragraph (2) is satisfied and, within the period provided by Rule 4(k) 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 brought against the party.
This Court construed this rule in our seminal case of Brooks v. Isinghood, 213 W.Va. 675, 584 S.E.2d 531 (2003). In Syllabus Point 4 of Brooks, we held:
Under Rule 15(c)(3) of the West Virginia Rules of Civil
Procedure [1998], an amendment to a complaint changing a
defendant or the naming of a defendant will relate back to the
date the plaintiff filed the original complaint if: (1) the claim
asserted in the amended complaint arose out of the same
conduct, transaction, or occurrence as that asserted in the
original complaint; (2) the defendant named in the amended
complaint received notice of the filing of the original complaint
and is not prejudiced in maintaining a defense by the delay in
being named; (3) the defendant either knew or should have
known that he or she would have been named in the original
complaint had it not been for a mistake; and (4) notice of the
action, and knowledge or potential knowledge of the mistake,
was received by the defendant within the period prescribed for
commencing an action and service of process of the original
complaint.
We further held that,
Under the 1998 amendments to Rule 15(c)(3) of the West
Virginia Rules of Civil Procedure, before a plaintiff may amend
a complaint to add a new defendant, it must be established that
the newly-added defendant (1) received notice of the original
action 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 newly-added defendant,
prior to the running of the statute of limitation or within the
period prescribed for service of the summons and complaint,
whichever is greater. To the extent that the Syllabus of Maxwell
v. Eastern Associated Coal Corp., 183 W.Va. 70, 394 S.E.2d 54
(1990) conflicts with this holding, it is hereby modified.
Syllabus Point 9, Brooks.
In its January 16, 2007, order, the circuit court analyzed the propriety of
relating the appellant's amended complaint back to her original complaint according to the
four factors set forth in Brooks. The circuit court based its determination that the amended
complaint does not relate back to the original complaint primarily on the absence of factor
(3) _ that the defendant either knew or should have known that he or she would have been
named in the original complaint had it not been for a mistake. Specifically the circuit court
concluded that “a 'John Doe' complaint is not truly a mistake on the Plaintiff's part.” The
circuit court reasoned,
This is not a case where the Plaintiff originally named a
defendant which she later learned was not the true party and
therefore had to amend her complaint. The Plaintiff filed her
claim against “John Doe” knowing that he was not the correct
defendant because the Plaintiff did not know the true
defendant's identity. The Plaintiff strategically chose to file a
complaint against “John Doe” because she had not yet
discovered Defendants' identities.
“The purpose of this policy statement is to secure an
adjudication on the merits of the controversy as would be
secured under identical factual situations in the absence of
procedural impediments.” Franklin D. Cleckley, et al.,
Litigation Handbook on West Virginia Rules of Civil Procedure § 15(a) at 334 [Juris Publishing, 2002]. See also, Syllabus Point
3, Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973).
“The goal behind Rule 15, as with all the Rules of Civil
Procedure, is to insure that cases and controversies be
determined upon their merits and not upon legal technicalities
or procedural niceties.” Doyle v. Frost, 49 S.W.3d 853, 856
(Tenn. 2001) (citations omitted). See also, Perdue v. S. J.
Groves & Sons, Co., 152 W.Va. 222, 161 S.E.2d 250 (1968)
(recognizing liberality to amend pleadings existed prior to the
adoption of the West Virginia Rules of Civil Procedure).
Brooks, 213 W.Va. at 684, 584 S.E.2d at 540 (footnote omitted). Further, we held in
Syllabus Point 3 of Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973):
The purpose of the words “and leave [to amend] shall be
freely given when justice so requires” in Rule 15(a) W.Va. R.
Civ. P., is to secure an adjudication on the merits of the
controversy as would be secured under identical factual
situations in the absence of procedural impediments; therefore,
motions to amend should always be granted under Rule 15
when: (1) the amendment permits the presentation of the merits
of the action; (2) the adverse party is not prejudiced by the
sudden assertion of the subject of the amendment; and (3) the
adverse party can be given ample opportunity to meet the issue.
Finally, we have made clear that “[p]rejudice to the adverse party is the paramount
consideration in motions to amend. Absent a showing of prejudice to an adverse party
motions to amend should be granted.” State ex rel. Bd. of Ed., etc. v. Spillers, 164 W.Va.
453, 455, 259 S.E.2d 417, 419 (1979) (citations omitted).
After considering the circuit court's reasoning, the arguments of the parties,
and the purpose of Rule 15, we conclude that the appellant's inability to discover the
identities of the appellees prior to the running of the statute of limitations constitutes a
“mistake” under the facts of this case. First, all of the requirements of Rule 15(c) for relation
back of a pleading are otherwise met. It is undisputed that the appellant's claim in her
amended complaint arose out of the conduct set forth in her original complaint pursuant to
Rule 15(c)(2). Also, we find that the appellees received notice of the institution of the
original complaint within the 120-day period for service of the original complaint under Rule
4(k) so that the appellees would not be prejudiced in maintaining a defense on the merits.
The original complaint was filed on June 28, 2006, which means that the appellant had until
October 28, 2006, to serve the original complaint on the appellees. The record indicates that
the appellant filed her amended complaint on September 28, 2006. This amended complaint
informed the appellees that,
This action was previously filed by Plaintiffs on June 28,
2006 and identifying Larry Scott, Individually, L. Scott Ltd. Co.,
and Larado Construction Sales LLC. as John Doe defendants.
Plaintiffs now amend their Complaint for identification of Larry
Scott, Individually, L. Scott Ltd. Co., and Larado Construction
Sales LLC as members of the John Doe Defendants previously
named.
The record further indicates that the appellees received service of the summons and amended
complaint on October 3, 2006. Under our law,
While Rule 15(c)(3) of the West Virginia Rules of Civil
Procedure [1998] requires that a party to be brought in by
amendment receive notice of the institution of the original
action, the form of the notice may be either formal or informal,
and does not require service of the original complaint or
summons upon the party affected by the amendment.
Syllabus Point 6, Brooks. Thus, when the appellees received service of the amended
complaint, they also received notice of the institution of the original complaint. Moreover,
this notice occurred within the 120-day period so that the appellees were not prejudiced in
maintaining a defense on the merits. Finally, the appellees, upon receiving notice of the
filing of the original action on October 3, 2006, knew or should have known that, but for the
appellant's inability to determine their identity earlier, the original action would have been
brought against the appellees.
Second, as indicated above, prejudice to the adverse party is the paramount
consideration in motions to amend. Under the instant facts, the appellees were not prejudiced
by the appellant's inability to identify them in her original complaint. As noted previously,
if the appellant had properly identified the appellees in the original complaint, the appellant
had 120 days, or until October 28, 2006, to serve the original complaint on the appellees.
Because the appellees received notice of the original complaint well before October 28, we
fail to see how they could be prejudiced by the failure to name them in the original
complaint.
Third, we find from the record before us that the appellant's failure to name
the appellees in her original complaint was not a deliberate strategy and it did not arise from
the appellant's dilatory conduct. The appellant's counsel explained at the hearing below that
the owner of Smoke Hole Cabins initially informed her that he performed the construction
on the ditch himself. She further indicated that it was not until she received discovery
responses from Smoke Hole Cabins on August 20, 2006, that the appellees were identified.
At that point, she immediately amended the complaint to identify the appellees. Also, in her
brief to this Court, the appellant avers that no building permits or environmental permits
regarding directing ground water into a stream were ever obtained or issued which would
have created a public record identifying the appellees. Thus, construing the factual
allegations in the light most favorable to the appellant, we conclude that the appellant's filing
of a “John Doe” complaint was not a deliberate strategy or due to the appellant's dilatory
conduct.
Finally, we believe that construing the term “mistake” in Rule 15(c)(3)(B) to
include circumstances where a “John Doe” complaint is filed due to failure to identify the
proper defendants is consistent with our prior expansive construction of Rule 15(c). For
example, in Brooks this Court confronted the issue of whether “a mistake concerning the
identity of the proper party” is limited to the common situation where the wrong party is
named or whether it can also include mistakes of law. This Court held in Syllabus Point 7:
Under Rule 15(c)(3)(B) of the West Virginia Rules of
Civil Procedure [1998], a “mistake concerning the identity of
the proper party” can include a mistake by a plaintiff of either
law or fact, so long as the plaintiff's mistake resulted in a failure
to identify, and assert a claim against, the proper defendant. A
court considering whether a mistake has occurred should focus
on whether the failure to include the proper defendant was an
error and not a deliberate strategy.
The appellees assert that the appellant's failure to identify them in her original
complaint does not constitute a “mistake” under Rule 15(c)(3)(B). According to the
appellees, the great majority of federal courts that have examined this issue have concluded
that lack of knowledge of the true identity of a party does not qualify as a “mistake” under
Rule 15(c)(3), so that an amended complaint which substitutes the proper defendants for a
“John Doe” defendant does not relate back on the grounds of mistake.
While we recognize the position taken by the majority of federal courts, we are
not persuaded to adopt this position in this instance. (See footnote 5)
We have previously noted that we give substantial weight
to federal cases in determining the meaning and scope of our
rules. This does not mean that our legal analysis in this area
should amount to nothing more that Pavlovian responses to
federal decisional law. Rather, a federal case interpreting a
federal counterpart to a West Virginia rule of procedure may be
persuasive, but it is not binding or controlling.
Brooks, 213 W.Va. at 682, 584 S.E.2d at 538 (citations, quotations, and parentheticals
omitted). In circumstances like the instant case in which a plaintiff, through no fault of her
own, is unable to identify the defendants prior to the expiration of the statute of limitations,
and where the remaining requirements of Rule 15(c) are met, this Court believes that both
justice and common sense require that a plaintiff's lack of knowledge should constitute a
“mistake” under Rule 15(c)(3)(B). Such a finding is wholly consistent with a liberal reading
of Rule 15(c) in order to promote the adjudication of cases on their merits.
Accordingly, we now hold that under Rule 15(c)(3)(B) of the West Virginia
Rules of Civil Procedure, a “mistake concerning the identity of the proper party” may include
the circumstance where the original complaint names a “John Doe” defendant due to the
plaintiff's lack of knowledge of the proper defendant where the filing of the “John Doe”
complaint is not part of a deliberate strategy in order to achieve an advantage and the
plaintiff's lack of knowledge is not due to the plaintiff's dilatory conduct in identifying the
proper defendant prior to the expiration of the applicable statute of limitations.
Reversed and remanded.