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Nett v. Bellucci9/4/2002
clean." Klein v. Catalano, supra at 709.
Here, despite the plaintiffs' initial failure to comply with local rule 15.1 (b), this defendant was served with the motion to amend and notified of the fact that the motion had been filed, all prior to the expiration of the seven-year repose period. Thus, within the time provided by the statute of repose (and well within the time for notice of the filing of a complaint that would be allowed by the ordinary ninety-day service period), this defendant had actual knowledge that the plaintiffs had taken the first step in court to pursue a malpractice claim against him for his alleged misreading of the prenatal ultrasound. Thus, concerns about notice to the defendant do not require us to treat the later filing of the amended complaint as the "commencement" of the action for purposes of the statute of repose, as both the filing of the motion and notice to the defendant occurred prior to the expiration of the repose period.
We find considerable supporting authority in other jurisdictions, which (in the absence of any "relation back" provisions) take the position that the filing of the motion to amend, not the court's later ruling on that motion or the even later filing of the complaint following allowance of that motion, is the date on which the new action is commenced. See Mayes v. AT & T Info. Sys., Inc., 867 F.2d 1172, 1173 (8th Cir. 1989); Massachusetts Pub. Interest Research Group v. ICI Ams. Inc., 777 F. Supp. 1032, 1036 (D. Mass. 1991); Wallace v. Sherwin Williams Co., 720 F. Supp. 158, 159 (D. Kan. 1988); Longo v. Pennsylvania Elec. Co., 618 F. Supp. 87, 89 (W.D. Pa. 1985), aff'd, 856 F.2d 183, 184 (3d Cir. 1988); Cannon v. Metcalfe, 458 F. Supp. 843, 846-847 (E.D. Tenn. 1977); Derdiarian v. Futterman Corp., 36 F.R.D. 192, 194 (S.D.N.Y. 1964); Gloster v. Pennsylvania R.R., 214 F. Supp. 207, 208 (W.D. Pa. 1963); Robinson v. Waterman S.S. Co., 7 F.R.D. 51, 53-54 (D.N.J. 1947); Toy v. Katz, 192 Ariz. 73, 89 (Ct. App. 1998); Totura & Co. v. Williams, 754 So. 2d 671, 679-680 (Fla. 2000); Mauney v. Morris, 316 N.C. 67, 71-72 (1986); Frazier v. East Tenn. Baptist Hosp., Inc., 55 S.W.3d 925, 929-930 (Tenn. 2001); Children's Store v. Cody Enters., Inc., 154 Vt. 634, 640-641 (1990).
These cases note the injustice that would flow from refusing to recognize the motion itself as the commencement of the new action. " plaintiff's amended complaint was effectively filed when his motion for leave to file an amended complaint was filed . . . . To hold otherwise would punish plaintiff and other similarly situated plaintiffs for the court's unavoidable delay in issuing an order granting leave to amend a complaint." Wallace v. Sherwin Williams Co., supra at 159. If a plaintiff could not "commence" an action by way of amended complaint without first awaiting the court's ruling on the motion to amend, " he matter is out of the hands of the plaintiff and is controlled by the vagaries of the court's workload." Children's Store v. Cody Enters., Inc., supra at 641. See Gloster v. Pennsylvania R.R., supra at 208 (requiring commencement of action to await ruling on motion to amend would "lend impracticality and injustice to federal judicial processes," as court must take time to research and consider motion to amend "while applying time and energy to the many other matters in a busy court").
Some courts considering this issue have reached the same result, but have referred to the filing of the motion to amend as a "tolling" of the operative statute of limitations. A statute of repose cannot be "tolled." Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 631 n.19 (1997), citing Sullivan v. Iantosca, 409 Mass. 796, 798 (1991). Better reasoned decis
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