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Nett v. Bellucci9/4/2002
ions recognize that it is incorrect to characterize a motion to amend as an event that "tolls" a statute. See Totura & Co. v. Williams, supra at 680 (noting cases that "loosely utilized" language referring to "tolling" of statute, but holding that "under proper analysis, the motion to amend was sufficient to stand in place of an amended complaint and the action was, therefore, deemed commenced"); Frazier v. East Tenn. Baptist Hosp., Inc., supra at 929-930 (noting that some jurisdictions "speak of 'tolling' the statute of limitations while others simply state that the motion to amend stands in the place of the amended complaint," but opting for latter formulation in holding that "filing a motion to amend and a proposed amended complaint commences a new action"). We adopt the more accurate formulation that the filing of the motion to amend actually commences the new action for these purposes, with the motion to amend "stand in the place of" the amended complaint. See Mayes v. AT & T Info. Sys., Inc., 867 F.2d 1172, 1173 (8th Cir. 1989) ("amended complaint is deemed filed" by filing motion to amend); Rademaker v. E.D. Flynn Export Co., 17 F.2d 15, 17 (5th Cir. 1927) (motion to amend "stands in the place of an actual amendment"); Massachusetts Pub. Interest Research Group v. ICI Ams. Inc., 777 F. Supp. 1032, 1036 (D. Mass. 1991) (court "deems the Amended Complaint to have been filed" on date motion to amend filed); Wallace v. Sherwin Williams Co., 720 F.áSupp. 158, 159 (D. Kan. 1988) (amended complaint "effectively filed" by filing motion to amend); Longo v. Pennsylvania Elec. Co., 618 F. Supp. 87, 89 (W.D. Pa. 1985) (filing of motion to amend "sufficient to meet the requirement of Fed. R. Civ. P. 3 that 'a civil action is commenced by the filing of a complaint with the court'"); Derdiarian v. Futterman Corp., 36 F.R.D. 192, 194 (S.D.N.Y. 1964) (filing of motion to amend "was commencement of the action" against new defendant); Toy v. Katz, 192 Ariz. 73, 89 (Ct. App. 1997) (filing motion to amend "constituted commencement of the action"); Totura & Co. v. Williams, supra (action "deemed commenced" by filing motion to amend because motion "was sufficient to stand in place of an amended complaint"); Mauney v. Morris, 316 N.C. 67, 71 (1986) (filing of motion to amend "is sufficient to start the action"); Frazier v. East Tenn. Baptist Hosp. Inc., supra at 930 (motion "stands in the place of the actual amended complaint"); Children's Store v. Cody Enters., Inc., 154 Vt. 634, 641 (1990) (action "commenced" by filing motion to amend).
The defendant acknowledges this extensive precedent treating the filing of the motion to amend, not the later filing of the allowed amended complaint, as the operative date, but contends that that precedent is premised on the plaintiffs' having attached a copy of the proposed complaint to the motion itself. Thus, the defendant argues, if the proposed amended complaint is annexed or otherwise accompanies the motion to amend, a document captioned as a "complaint" is physically filed on the date the motion is filed, thus satisfying the rule 3 definition of commencement of an action. Here, the plaintiffs' motion to amend was not accompanied by any draft amended complaint. Thus, the defendant argues, these plaintiffs' motion to amend is distinguishable from the motions to amend in cases treating the motion filing as the commencement of the action.
In many, but not all, of the cases cited above, the motion to amend was accompanied by a draft of a proposed amended complaint, as that is the customary practice in filing such motions. However, the filing of a draft amended complaint with the motion should not be determinative whether the motion filing satisfies a statute of repose
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