Civ Pro 2 Notes 9/9/04

Relation back of amendments – Moore v. Baker

Moore had a bad result in surgery, and she sues Dr. Baker. Her cause of action is for lack of informed consent: she claims that he didn’t explain to her adequately what the risks involved in the surgery were. What happened after the cause of action was filed? The statute of limitations ran out! Then Baker filed a motion for summary judgment. The plaintiff now wants to file her motion to amend her cause of action under Rule 15(c) to include a cause of action for simple negligence. Rule 15(c) tells us that amendments relate back to the date of the original pleading when the claim or defense asserted arose out of the same conduct, transaction, or occurrence. But this language isn’t being used the same way as in other contexts!

Why did the judge say that these things didn’t arise out of the same transaction or occurrence? The amended complaint did not relate back to the original complaint because there was no negligence mentioned in the original complaint. The doctor wasn’t on notice that he had a negligence claim against him! The concept behind pleading is that we put you on notice. But all the doctor knew about was the claim involving informed consent.

Bonerb v. Richard J. Caron Foundation

The plaintiff was injured while playing basketball at the rehab center. He slipped and fell. He was involved in a mandatory exercise program. He claims that the court was negligently managed by the facility. The statute of limitations runs out. He tries to amend his complaint with a new allegation of counseling malpractice. The defendant objects, saying that this claim doesn’t relate back. The court decides that the original claim and new claim relate to the same facts, and so the motion to amend is granted.

Let us take the two cases above together. Both people have negligence claims, a statute of limitations that has run, and they both want to amend their complaints. Aren’t they arguably both wrong? In the second case, the rehab center is sued for negligent maintenance of a basketball court. But then, the amended complaint says that they counseled the plaintiff negligently. In contrast, in the medical malpractice context, if you get sued as a result of a surgery and the claim is one for lack of informed consent, it’s lack of informed consent because something went wrong with the surgery. Wouldn’t that give some notice that what Dr. Baker allegedly did something bad in surgery? It doesn’t seem reasonable that the two allegations aren’t part of the same set of facts. You might argue that these should have been switched.

What are the differences? Summary judgment was filed in the first case. How would that make a difference? It means that discovery has probably come to an end. The motion for summary judgment isn’t ripe until the close of discovery. That means this case is coming to an end, and probably an abrupt one. In this case, Dr. Baker is on the verge of victory. All of the sudden, he’s hit with a surprise of a new cause of action. In the other case, discovery may still be going on. So one reason the two cases are different is the surprise element. Courts are more willing to let you relate amendments back if it’s not going to be to the detriment of the other side. Another suggestion has to do with the way the amendments were crafted. In Moore, we start with the “no informed consent” claim and try to go to a broader claim: general negligence. But in the rehab case, we start with the general claim of negligence and then try to slice out a particular kind of claim. Thus, courts may favor amendments that move from the general to the specific. Two courts look at the same Federal Rule with the same language, but come out differently. So the Rule doesn’t have complete clarity on its face.

Notice that there is a portion of Rule 15(c)(3) that deals with changes in the party’s name. The amendment will relate back if you’re simply changing the name of the person you’re suing because you’ve sued the wrong person. This is what Zielinski did. If Rule 15(c) had been in operation at the time, this would have been the way to resolve the problem.

Joinder

“All of the interesting things in procedure relate to joinder.” We’ll deal with complex joinder issues, but today we must look at the pedestrian issues of claim joinder. We simply look at a combination of the Federal Rules on the one hand and the issues of jurisdiction and preclusion on the other. Rule 18 tells us that a party asserting a claim can do so as a claim (regular old plaintiff suing a defendant), a counterclaim (if the defendant has a cause of action against the plaintiff too), a cross-claim (a suit between the defendants), or a third-party claim (like an insurance company or some other party brought in by the defendants). In contemporary litigation, we may see all of these at once!

How can claims be brought together? Let’s say a wrongfully discharged employee wants to sue under § 1983 and also sue under state law in Ohio. Could that plaintiff do it under the rules? Rule 18 tells us that they can join as many claims as they want against the same person! So if you’re just looking at the Federal Rules, there’s no problem. But we have to also look at jurisdiction; in this case, we must look at supplemental jurisdiction. This requires us to add additional claims against other parties, if needed. This stems from the Article III description of cases and controversies as interpreted by the Supreme Court in Gibbs. In Gibbs, we had the same situation: a state claim and a federal tort claim. Brennan says that they can both be brought if they arise from the same nucleus of operative fact. Would they be expected to be litigated together in a single proceeding? The claims we mentioned above seem to go together well. These claims could be joined properly under both the Rules and the statute.

Could you do a state law car wreck claim with a § 1983? They are far removed from each other! Under the writ system, you bring all of your causes of action against a single person if you wanted, even if they were unrelated. This is permissible under the rule, but not under supplemental jurisdiction. The statute tells us that we can join other parties. This is what we used to call “pendant party jurisdiction”. So it’s okay! If you’re going to party that would bust diversity jurisdiction, that’s not okay. So joinder of claims is always okay under Rule 18, but not necessarily under the other statutes and principles that govern us. Don’t worry about supplemental jurisdiction now, we’ll come back to it later.

Claims are governed by Rule 18, but counterclaims are governed by Rule 13. There are two types: “compulsory counterclaims” and “permissive counterclaims”. If a claim arises out of the same transaction or occurrence, you must “use it or lose it”. In Rule 13(b), we have permissive counterclaims, which means you may bring them and raise claims that don’t arise out of the same transaction or occurrence.

Plant v. Blazer Financial Services

Blazer loaned some money to Plant. Plant sued based on truth-in-lending (failure to disclose). The defendants counterclaim for the unpaid balance of the loan. The plaintiff didn’t pay! Their counterclaim is that they’re still owed money on the loan even if they didn’t fully disclose. So is the counterclaim compulsory or not? One way to look at this is to flip the situation. If the bank had sued Plant on non-payment of the debt, would her truth-in-lending claim have been compulsory? It doesn’t seem like she would have lost her truth-in-lending claim if she hadn’t brought it up when she got sued for non-payment. You wouldn’t think that violating disclosure rules in a loan is part of the same transaction as non-payment.

The court starts with the rule itself, which gives us the test. Does the counterclaim “arise out of the same transaction or occurrence”? There’s a laundry list of different tests that can be used. The court decides to use the “logical relationship” test. But not every circuit agrees that these two types of claims have to be brought together. Much like the Rule 15(c) amendment issue, we have the same transactional test that can be viewed by courts quite differently based on the test that they choose and the spin that they decide to put on the facts. If you were cynical, you might find that the Fifth Circuit is biased towards creditors and against debtors.

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