Day on Torts
A defendant sued within the statute of limitations states in its answer or amended answer that a person not a party to the lawsuit negligently contributed to cause plaintiff’s injuries. Plaintiff decides to sue the nonparty, and rely on Tenn. Code Ann. §20-1-119 to avoid a statute of limitations defense.
How does a plaintiff add the nonparty as a party defendant?
The answer depends on whether the case is in state court or federal court. In state court, plaintiff has an absolute right to amend under Tenn. R. Civ. Pro. 15.01. In relevant part, it provides ” [f]or amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required.”
Thus, plaintiff need only file an amended complaint to make the nonparty a party defendant; no leave of court is required.
A plaintiff amending a complaint to add a nonparty as a party defendant should use this introductory language: Plaintiff, pursuant to Tenn. R. Civ. Pro. 15.01, files this [first] amended complaint adding [new defendant] pursuant to Tenn. Code Ann. §20-1-119.
Remember that to gain the advantage of §20-1-119 not only must be amended complaint adding the new defendant be filed within the 90-day window provided by §20-1-119 but a summons must also be issued within the 90-day window. The summons and complaint need not be served within the 90-day window.
In federal court, the effort to add a nonparty to the complaint as a party defendant will require formal leave to amend. (Federal Rule 15(a) does not contain the same provision as Tenn.R.Civ.Pro. 15.01.) Once again, not only must be amended complaint adding the new defendant be filed within the 90-day window provided by §20-1-119 but a summons must also be issued within the 90-day window.