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Nett v. Bellucci9/4/2002
filed a motion for leave to amend their complaint to add Dr. Gross as a defendant pursuant to Fed. R. Civ. P. 15 (a). The motion and accompanying ten-page memorandum set forth the facts of the case and explained that the plaintiffs had been unable to assert a claim against Dr. Gross at any earlier point due to the hospital's claimed loss of the ultrasound films. Although the plaintiffs did not attach a proposed draft of their amended complaint, the memorandum accompanying the motion outlined the plaintiffs' contention that Dr. Gross had been negligent in his reading of the ultrasound, identified their expert and his opinion that "Dr. Gross fell below the standard of care in his evaluation of the ultrasound film," and stated that "Dr. Gross is a necessary party due to his negligence by and through his position as radiologist involved in the care of Aaron Nett at the Milford-Whitinsville Hospital." The memorandum also provided the details of the complications that had ensued during Aaron's delivery and the nature of the resulting injuries. In order to explain the delay in adding Dr. Gross as a defendant, the memorandum also chronicled the difficulties encountered in obtaining the actual films.
When they filed their motion, the plaintiffs failed to comply with Massachusetts District Court Local Rule 15.1 (b), which requires service of "the motion to amend upon the proposed new party at least ten (10) days in advance of filing the motion, together with a separate document stating the date on which the motion will be filed." Local rule 15.1 (b) further provides that " motion to amend a pleading to add a new party shall be accompanied by a certificate stating that it has been served in advance on the new party as required by this rule." Although no such certificate accompanied the plaintiffs' motion for leave to amend, the clerk of the court apparently accepted the filing on March 10, 1999.
After the plaintiffs themselves realized their error, they served Dr. Gross with the motion for leave to amend on March 19, 1999, and refiled their motion with the court on March 29, 1999, in compliance with local rule 15.1 (b). Over the opposition of Dr. Gross, the court granted the plaintiffs' motion for leave to amend on April 8, 1999, and the amended complaint was filed on April 26, 1999.
Dr. Gross filed a motion to dismiss the amended complaint, arguing that the plaintiffs' claims against him were barred by the statutes of repose. See G.áL. c. 231, á60D; G. L. c. 260, á4. Because he had performed and interpreted the ultrasound on March 26, 1992, Dr. Gross contended that any amended complaint adding him as a defendant would have had to be filed by March 26, 1999, the expiration of the seven-year repose period provided by the applicable statutes. See G.áL. c. 231, á60D; G. L. c. 260, á4. The second motion for leave to amend the complaint, filed on March 29, 1999, and the actual amended complaint, filed on April 26, 1999, both fell beyond that expiration date. The plaintiffs opposed the motion to dismiss, arguing that the repose provisions allowed them until April 2, 1999, Aaron's seventh birthday, to file a complaint against Dr. Gross and that their motion to amend, filed in compliance with local rule 15.1 (b), on March 29, 1999, had "commenced" the action within the repose period.
The Federal District Court initially denied the motion to dismiss. The court determined that the repose period expired on March 26, 1999, rather than April 2, 1999, but excused the violation of local rule 15.1 (b) as harmless error, deemed the motion for leave to amend to have been properly filed on March 10, 1999, and tolled the time that had elapsed between the filing of the first motion for leave to amen
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