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Tisdale v. ITW Ramset/Red Head6/3/2003
n 180 days of the filing of the petition. 12 O.S.2001 § 2004(I). The effect, when combined with section 2012(C)(3), is that a plaintiff seeking to have an amended petition naming a new or substituted party relate back to the date of the original petition must be able to show, at a minimum, that within 180 days of the filing of the original petition, the new party knew or should have known that "but for a mistake" concerning its identity, the claim would have been brought against it originally. "New parties cannot be added by way of amendment after the statute of limitations has run unless the requirements of [12 O.S.2001 § 2015(C)] have been met." Bray v. Thomas Energy Sys., Inc., 1995 OK CIV APP 146, 3, 909 P.2d 1191, 1194.
The Oklahoma Supreme Court has adopted the federal courts' construction of Rule 15(c) of the Federal Rules of Procedure, which is identical to section 2015(C). Dotson v. Rainbolt, 1995 OK 39, 14, 894 P.2d 1109, 1113. There are three conditions to the doctrine of relation back:
(1) the plaintiff's claim against the newly-named defendant must have arisen "out of the conduct, transaction, or occurrence set forth . . . in the original pleading," see 12 O.S.2001 § 2015(C)(2);
(2) within 180 days of the filing of the original petition, the newly-named defendant must have "received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits," see 12 O.S.2001 § 2015(C)(3)(a); and
(3) within 180 days of the filing of the original petition, the newly-named defendant "knew or should have known that, but for a mistake concerning identity," the action would have been brought against him originally, see 12 O.S.2001 § 2015(C)(3)(b).
Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 194 (3d Cir. 2001). All three conditions must be met before the amended petition can relate back to the filing date of the original petition.
Whether the Tisdales' lack of knowledge of ITW's identity was a "mistake" becomes relevant only if there is an issue of fact as to whether, within 180 days of the filing of the original petition, ITW had some actual or imputed knowledge of the lawsuit and its possible role in it. The Tisdales submitted the affidavit of Mr. Tisdale's employer's attorney in the workers' compensation case. That affidavit states that ITW was contacted by a private investigator on the employer's behalf well before the 180-day time limit. The affidavit also states that the Tisdales' attorney was not informed of ITW's identity until after the conclusion of the workers' compensation claim. Viewing that affidavit and all possible inferences from it in the Tisdales' favor, Kang, 2000 OK CIV APP 89, 3, 11 P.3d at 219, we conclude that ITW may have known about the lawsuit and may have been aware that it was an intended target within the 180 days. This is an issue of material fact that precludes the entry of judgment as a matter of law.
The parties debate the meaning of two Oklahoma cases interpreting section 2012(C). The first, Dotson, 1995 OK 39, 894 P.2d 1109, is of limited value here because it applies an earlier version of section 2012. See id. at 16 n.5, 894 P.2d at 1113 n.5. The second, Bray, 1995 OK CIV APP 146, 909 P.2d 1191, is somewhat more applicable since it analyzes the current version of section 2015(C). In Bray, the Court of Civil Appeals determined that the plaintiff had not made a "mistake," for the purposes of relation back, by simply failing to discover the names of the defendants within the statutory limitations period. Id. at 11, 909 P.2d at 1195-96. We do not view Bray as determinative here, however, because the Tisdales tried without succe
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