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Nett v. Bellucci9/4/2002
ommenc " the action occurs within all applicable statutes of limitation and statutes of repose.
What step in the process of amending a complaint most resembles that first step in the filing of an original action? Beyond the brief period during which a complaint may be amended as of right (see rule 15 ), a plaintiff amending a complaint may not do so unilaterally. Court permission is required. Therefore, the first step taken is to request permission from the court by filing a motion. While the plaintiff has unilateral control over when that motion is filed, the plaintiff has no way of controlling or even predicting the time at which any permission to amend will be granted, and thus no ability to control the date on which the amended complaint itself may be filed. It may take only a matter of days before the motion is allowed and the complaint can be filed, but it may be a matter of weeks, or even months, depending on a host of factors, all of which are outside the plaintiff's control. If the statute of repose cannot be satisfied until the later filing of the amended complaint after the motion to amend has been allowed, the repose period will effectively be shortened by some unpredictable amount of time, as a plaintiff would have to file the motion to amend some considerable period in advance of the expiration of the repose period and simply hope that the court's ruling would be sufficiently prompt. It is only that first step, the filing of the motion, that the plaintiff can control. Thus, the filing of the motion is comparable to the original filing of the complaint, both in the sense that each is the first step that a plaintiff takes and the first document that a plaintiff files with the court concerning the action, and in the sense that both the filing of the original complaint and the filing of the motion to amend are steps that remain unilaterally in the plaintiff's control.
It is true that a plaintiff retains the ability to satisfy the statute of repose by filing a separate action against the new defendant, perhaps followed by a motion to consolidate that new action with the previously filed action. See Mass. R. Civ. P. 3; Mass. R. Civ. P. 42 (a), as amended, 423 Mass. 1402 (1996). However, that approach would waste scarce judicial resources and impose pointless litigation costs. Where a defendant would appropriately be added to an action already filed, it creates needless confusion and duplication to force the plaintiff to bring the claim as a separate action, followed by a motion for consolidation, merely to avoid the bar of a statute of repose. Indeed, a plaintiff might well file a motion to amend, wait to see whether the motion would be allowed in time to get the amended complaint filed before the repose period ran out, and, if there were still no ruling from the court as the expiration date drew near, file the separate action and the accompanying motion to consolidate. We fail to see how such duplication of effort and procedural clutter would advance the purposes underlying any statute of repose. See Mauney v. Morris, 316 N.C. 67, 71, 72 (1986) (filing of motion to amend "is sufficient to start the action," noting that that interpretation "promote judicial economy by avoiding the necessity for separate trials or for plaintiff to file first a separate complaint and then a motion to join the two actions"). Where a more efficient procedural mechanism is already available to bring an additional defendant into an existing action, we should recognize that preferred mechanism as the commencement of the action against the new defendant rather than force the parties and the court to utilize a more cumbersome workaround.
We conclude that treating the filing of the motion as the commenc
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