Kuehl v. Gasway Corp.

109 F.R.D. 657, 1986 U.S. Dist. LEXIS 27928
CourtDistrict Court, E.D. Wisconsin
DecidedMarch 20, 1986
DocketNo. 84-C-1282
StatusPublished

This text of 109 F.R.D. 657 (Kuehl v. Gasway Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kuehl v. Gasway Corp., 109 F.R.D. 657, 1986 U.S. Dist. LEXIS 27928 (E.D. Wis. 1986).

Opinion

ORDER

WARREN, District Judge.

Defendant Wolverine Coil Coating, Inc. (hereafter “the defendant”), has filed three motions that are pending before the Court. First, the defendant has moved for summary judgment dismissing it and its fictitious insurer, D.C.E. Insurance Company, from this lawsuit. The plaintiffs have conceded that they have no cause of action against Wolverine Coil Coating and D.C.E. Insurance Company, as the former was not in existence at the time of the accident which led to this lawsuit. Therefore, the defendant’s motion for summary judgment will be granted.

Second, the defendant has moved for a stay of all discovery in this action pending the resolution of the plaintiff’s appeal of this Court’s orders dated March 13, 1985, and July 23, 1985. Since that appeal has been withdrawn, the defendant’s motion for a stay is moot.

The third motion is still viable and is ardently contested by the plaintiffs. The defendant has moved to strike all references in the complaint to Wolverine Pentronix, Inc., as a defendant, pursuant to Rule 12(f), Federal Rules of Civil Procedure. The defendant contends that Wolverine Pentronix has not been served with process and cannot be served hereafter since the statute of limitations has run. The plaintiffs claim that Wolverine Pentronix was served and that it has admitted service. Having carefully analyzed the submissions of the parties, the applicable law, and the prior decisions in this action, the Court concludes that the defendant’s motion to strike should be treated as a motion for summary judgment and, on that basis, it will be granted.

A. BACKGROUND

The background of this case was discussed in the Court’s Decision and Order dated March 13, 1985. In that Decision and Order, the Court denied the plaintiffs’ motion to substitute the Traveler’s Insurance Company in place of the fictitious [659]*659D.C.E. Insurance Company as the insurance carrier for defendant Wolverine Coil Coating. The Court also denied the plaintiffs’ motion to amend the summons and complaint to add Wolverine Technologies, Inc. as a defendant. In both instances, the Court’s decision was premised on the fact that neither Travelers nor Wolverine Technologies had received notice of this action before the statute of limitations had run. The Court held that, since Travelers and Wolverine Technologies were new parties that the plaintiffs were attempting to join in this action, amendment of the complaint should not be allowed because their late addition as defendants would deprive them of the defense of the statute of limitations. Kuehl v. Gasway Corporation, et al., No. 84-C-1282, p. 8 (E.D.Wis. March 13, 1985). The Court reaffirmed its position in the July 23,1985 order denying the plaintiffs’ motion for reconsideration.

In order to put the defendant’s motion to strike into perspective, a few additional background facts concerning the history of Wolverine Coil Coating and its parent corporation should be noted. Wolverine Coil Coating was formed as a wholly-owned subsidiary of Wolverine Aluminum Corporation on June 20, 1984. Wolverine Aluminum Corporation was formerly known as Wolverine Pentronix, Inc., and is now known as Wolverine Technologies, Inc. In August, 1984, the assets of the coil coating and paint manufacturing operations of Wolverine Aluminum were transferred to' Wolverine Coil Coating. On August 9, 1984, the stock of Wolverine Coil Coating was sold to Prefinishing Technology Corporation, of which Wolverine Coil Coating is now a subsidiary. (See Affidavit of Arnold Weisler, dated August 20, 1985).

The plaintiffs commenced this action on October 15, 1984, one week before the statute of limitations expired. The plaintiffs named as one of the defendants “Wolverine Coil Coating, Inc., formerly Wolverine Pentronix, Inc.” As the plaintiffs now recognize, Wolverine Coil Coating never was formerly known as Wolverine Pentronix, although that mistaken identification is understandable in view of the nature and frequency of the parent corporation’s name changes.

On January 21, 1985, a copy of the summons and complaint was received via first class mail by Thomas A. Jeffers, who had been the registered agent of Wolverine Coil Coating. At the time he received the summons and complaint, Jeffers was an officer and director of Wolverine Technologies. Jeffers did not sign and return the enclosed acknowledgement of service form, since he was no longer the registered agent for Wolverine Coil Coating and because Wolverine Technologies was not named in the lawsuit. (See Affidavit of Thomas A. Jeffers, dated October 3, 1985).

B. ISSUES

Based upon the Court’s prior decision that Wolverine Technologies cannot be named as an additional defendant in this action, the defendant contends that all references in the complaint to Wolverine Pentronix, the former name of Wolverine Technologies, should be stricken. The defendant claims that Wolverine Pentronix has not been named as a defendant in this action, that service upon it by first class mail outside the State of Wisconsin was defective, and that Mr. Jeffers’ failure to sign and return the acknowledgement of service form also rendered service defective.

The plaintiffs contend that in serving Mr. Jeffers, they effected service not only upon the registered agent of Wolverine Coil Coating but also the vice president, treasurer and director of Wolverine Pentronix. The plaintiffs also contend that Mr. Jeffers’ statements in his affidavit on file with the Court are tantamount to an admission of service upon Wolverine Pentronix. The plaintiffs state that, under Wisconsin law, an admission of service operates as a cure for any defects in the service made.

C. DISCUSSION

The Court has twice denied the plaintiffs’ motion to amend the complaint in order to name the appropriate defendants to this action. As stated above, the Court’s decision was based on the fact that the [660]*660statute of limitations had run before the parties sought to be included as defendants had notice of this action. In view of the lack of notice prior to the expiration of the statute of limitations, the Court held that the proposed amendment would not relate back to the filing of the complaint under Rule 15(c), Federal Rules of Civil Procedure. While the rule in other circuits maybe different, see, e.g., Ingram v. Kumar, 585 F.2d 566 (2nd Cir.1978), the rule is this circuit is as follows: an amendment naming a new party to a lawsuit does not relate back to the filing of the action unless actual notice was received by that party within the period provided by law for commencing the action. Hughes v. United States, 701 F.2d 56, 58-59 (7th Cir.1982); Stewart v. United States, 655 F.2d 741, 742 (7th Cir.1981). This interpretation of Rule 15(c) has been applied outside this circuit as well. See, e.g., Schiavone v. Fortune, 750 F.2d 15, 18 (3rd Cir.1984); Colonial Mortgage Service Co. v. Aerenson, 603 F.Supp.

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Colonial Mortgage Service Co. v. Aerenson
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Ingram v. Kumar
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Schiavone v. Fortune
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Bluebook (online)
109 F.R.D. 657, 1986 U.S. Dist. LEXIS 27928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuehl-v-gasway-corp-wied-1986.