The Tennessee Supreme Court ruled on Friday that the failure of a plaintiff to get leave to amend a complaint before adding a nonparty as a defendant to not permit the newly-added party to raise the statute of limitations as a bar.
Key to the holding was the fact that the plaintiff got permission to amend after serving the “amended complaint” on the new defendant.
The holding: “When a plaintiff utilizes section 20-1-119 to amend a complaint to name a nonparty as a defendant, the plaintiff must first seek permission of the trial court or adverse parties as provided by Tennessee Rule of Civil Procedure 15.01. However, on the facts of this case, failure to file the motion to amend before filing the amended complaint and securing service of process is not fatal when all requirements of Rule 15.01, including the trial court’s grant of the motion to amend, occur within the ninety-day window created by section 20-1-119. Plaintiff has substantially complied with Rule 15.01 of the Tennessee Rules of Civil Procedure and should be allowed to amend her complaint to add Defendant as a party.”
What is the right way to add a nonparty as a party? The opinion spells it out: “Successful amendments under section 20-1-119 require four discrete actions within ninety (90) days: (1) the filing and (2) granting of a motion to amend, (3) the filing of an amended complaint, and (4) the issuance of process.”
The case is Jones v. Professional Motorcycle Escort Service, Inc., No. W2005-00079-SC-S09-CV (May 19, 2006). Read the opinion here.
If my memory serves me correctly this is Justice Clark’s first tort opinion. She did a great job applying substance over form while at the same time sending a clear message about how to do it right in the future. The defendant suffered no undue prejudice by the failure of the plaintiff to follow the rules strictly. Any different result would have been a “gotcha.”