Carol Anita Ringrose and Frederick Ringrose v. Engelberg Huller Co., Inc., Sundstrand Corporation and White Consolidated, Inc.

692 F.2d 403, 35 Fed. R. Serv. 2d 13, 1982 U.S. App. LEXIS 24372

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 2, 1982
• Docket: 80-1086
• Status: Published

Opinions

' MERRITT, Circuit Judge.

Plaintiff-appellant Ringrose appeals the dismissal of her Michigan diversity personal injury action by the District Court on the ground that the Michigan three-year statute of limitations bars her claim. The District Court rejected her argument that her amended complaint naming alleged successor corporations as defendants, an amendment filed after the expiration of the limitations period, relates back to the original filing date under Rule 15(c), Fed.R.Civ.P. Rule 15(c) provides:

An amendment [to a complaint] changing the party against whom a claim is asserted relates back if ... 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.

Plaintiff alleges that she injured her left hand at work while operating a belt grinder on September 2,1976. She filed suit within the limitations period against the manufacturer listed on the belt grinding machine, Engelberg Huller Co., Inc., on April 30, 1979, in the Wayne County Circuit Court. The process server was unable to complete service of process because, as he wrote on his return of process:

Engelberg Huller Co. out of business approximately 10 years — -possibly bought out by White Sundstrand Machine Tool Inc. — If so, corporate headquarters are Rockford Illinois. Contacted Mr. Carl Newman — White Sun....

Two new parties, Sundstrand Corporation and White Consolidated Industries, were added by an amended complaint filed September 7, 1979, five days after Michigan’s three year statute of limitations, M.C.L.A. § 600.5805(9), expired. Plaintiff alleges that these two corporations are successor corporations of Engelberg Huller Co. These defendants removed the action to the federal district court in Detroit, which dismissed the action as barred by the statute of limitations.

When the application of state tolling and service of process provisions would affect the running of the statute of limitations and thus affect the outcome of the lawsuit in state court, a federal court in a diversity action should apply those same state rules of decision in determining whether an action is barred by the applicable state statute of limitations. Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980). In Michigan and also under the federal rules, the filing of a complaint against a party stops the running of the statute of limitations as to the claim against that party but not as to new parties. Buscaino v. Rhodes, 385 Mich. 474, 189 N.W.2d 202 (1971); Forest v. Parmalee, 60 Mich.App. 401, 231 N.W.2d 378 (1975); Krontz v. Estovez, 49 Mich.App. 30, 211 N.W.2d 213 (1973). Michigan follows the principles stated in Federal Rule 15(c) that an amendment changing the party against whom a claim is asserted relates back if the party has received sufficient notice of the action so as not to be prejudiced in defending the case. Forest v. Parmalee, supra. In Forest, the Michigan court, following the reasoning of our decision in Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973), said: “While the above federal rule would allow the correction of misnomers, it will not allow the addition or substitution of new parties after the expiration of the statute of limitations.” 231 N.W.2d at 383.

Thus the Michigan rule and the federal rule are the same regarding the substitution of new parties, and we need not decide the choice of law question discussed in the concurring opinion. We are, therefore, governed by Rule 15(c), Fed.R.Civ.P. in deciding the “relation-back” issue and are required to interpret Rule 15(c) in light of the facts of this case.

The record is unclear whether the process server who made the return contacted either Sundstrand Corporation or White Consolidated Industries prior to the expiration of the statute of limitations so as to put either or both on notice that a predecessor corporation had been sued. There is some indication on the return that the process server contacted within the statutory period a “Carl Newman” as representative of one or both of the defendant corporations. We, therefore, remand the case to the District Court for a determination whether either or both of the defendants prior to the expiration of the Michigan three-year statute of limitations “received such notice of the institution of the action that [it] will not be prejudiced in maintaining [its] defense on the merits.” The District Court should determine whether either or both of the defendant corporations are successor corporations of Engelberg Huller Co. and therefore “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against [it],” or had actual notice of the action within the limitations period and would not be prejudiced in defending the case by relating the amended complaint back to the time of filing of the original complaint.¹

Accordingly, the judgment of the District Court is reversed and the case remanded for further reconsideration of the statute of limitations issue as aforesaid.

1 . The concurring opinion is premised on the view that “Michigan allows at least 180 days from the date the limitations period would otherwise have run before service will be accomplished,” see text at note 7, but we do not read this rule — which simply requires dismissal of an action not served in 180 days — as affecting or tolling the limitations period. It is a service of process provision only and has not been interpreted as extending the limitations period.