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Brown v. Teitelbaum11/7/1991
fendants had expired. See Colo. Sess. Laws 1977, ch. 198, § 13-80-105(1) at 816; § 13-81-103(1)(a), C.R.S. (1987 Repl. Vol. 6A). Rather, they argue that the amendment of their complaint "related back" to the date their original "John Doe" complaint was filed. Again, we disagree.
An amendment changing the party against whom a claim is asserted relates back to the date of the original pleading only if all the conditions of C.R.C.P. 15(c) are satisfied. As relevant here, C.R.C.P. 15(c) requires that:
within the period provided by law for commencing the action against him, the party to be brought in by amendment: (1) Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. (emphasis supplied)
Here, it was undisputed that plaintiffs' motion to name Sitarik, Bunn, and Singh as defendants was not made until May 12, 1989. Further, the record contains uncontested affidavits from Sitarik and Bunn stating that they had no notice or knowledge of the pending action before May 1989. Accordingly, because it is undisputed that these defendants were not named as parties within the period provided by law for commencing the action against them, the trial court did not err in dismissing these claims. See Dillingham v. Greeley Publishing Co., 701 P.2d 27 (Colo. 1985).
IV.
Plaintiffs rely on Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981) for their final contention that the trial court erred in dismissing the claims for alleged deprivation of the decedent's constitutional rights based upon 42 U.S.C. § 1983. Again, we disagree.
Ordinarily, one cannot sue for relief over the deprivation of another's civil rights. Espinoza v. O'Dell, supra. Further, a genuine issue of material fact cannot be raised simply by allegations of pleadings or argument of counsel. Rather, in response to a motion for summary judgment, an adverse party must by affidavit or otherwise set forth specific facts showing there is a genuine issue for trial. C.R.C.P. 56(e); Reisig v. Resolution Trust Corp., 806 P.2d 397 (Colo. App. 1991).
In Espinoza, the plaintiffs included the decedent's personal representative, acting on behalf of the estate, and the decedent's children, on the basis of their own constitutional liberty interests.
Here, however, it is undisputed that Glenna Brown was not acting on behalf of the estate as the decedent's personal representative and that none of the plaintiffs asserted any deprivations of their own constitutional rights. Further, in response to defendants' motion for summary judgment, plaintiffs offered no affidavits or other facts in support of the constitutional deprivation claims. Accordingly, the trial court did not err in dismissing the claims for alleged deprivation of the decedent's constitutional rights.
Judgment affirmed.
Disposition
JUDGMENT AFFIRMED
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