The opinion of the court was delivered by: Getzendanner, District Judge:
MEMORANDUM OPINION AND ORDER
This federal racketeering and securities fraud case is before
the court on defendants' motion to dismiss as untimely the
complaint filed by plaintiff John Marks. In the court's opinion
of January 23, 1985, the court ordered further briefing of
whether an amendment adding a claim under the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961-1968
("RICO"), could "relate back" under Fed.R.Civ.P. 15(c) to the
filing of the complaint containing the allegations which form the
RICO predicate acts. This opinion will address only the relation
The court invited briefing of this issue by the other parties
in this consolidated action, since the court's opinion allowing
RICO amendments by several parties left open whether relation
back would be appropriate. In re: Olympia Brewing Company
Securities Litigation, No. 77 C 1206, slip op. at 24-25 (N.D.Ill.
Dec. 18, 1984). At the time of the December 1984 opinion, the
RICO amendments were not sufficiently detailed to allow the court
to rule on Rule 15(c) relation back. Pursuant to court order,
however, the Plaintiffs' Committee filed on January 30, 1985 a
"Bill of Particulars" setting forth the plaintiffs' method of
proving their RICO claims. Hence, the court is better equipped to
evaluate whether the RICO amendments relate back to the filing of
the complaints containing claims now alleged to be part of the
RICO racketeering activity. This opinion addresses general
principles applicable to all of the consolidated cases concerning
the availability of Rule 15(c) effectually to toll the
limitations periods for plaintiffs' RICO claims.
"Relation Back" Under Rule 15(c)
The parties agree that the RICO amendments add factual
allegations to the original pleadings. Thus, the precise issue
before the court is whether proposed amendments that add factual
allegations, as well as a new legal theory, may be deemed as
having been filed at the time of the original complaint. Rule
15(c) provides, in relevant part:
Whenever the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in
the original pleadings, the amendment relates back to
the date of the original pleading.
Commentators and courts agree that Rule 15(c) was largely
designed to notify a party that claims will be asserted that
arise out of the "`general fact situation set forth in the
original pleading.'" Rosenberg v. Martin, 478 F.2d 520, 526 (2d
Cir.) (Friendly, J.), cert. denied, 414 U.S. 872, 94 S.Ct. 102,
38 L.Ed.2d 90 (1973) (quoting from Snoqualmie Tribe v. United
States, 372 F.2d 951, 960 (Ct.Cl. 1967)). See 3 J. Moore, Moore's
Federal Practice ¶ 15.15, at 15-190 to 191 (1985 & Supp.
1985); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104
S.Ct. 1723, 1725 n. 3, 80 L.Ed.2d 196 (1984). It goes without
that relation back is appropriate where a party seeks to add a
new legal theory to a set of previously alleged facts (assuming
amendment is otherwise allowed under Rule 15(a)).
It is equally clear that "an amendment which states [an]
entirely new claim for relief based on different facts will not
relate back. . . ." 3 J. Moore, supra, at 15-196 (footnote
omitted). Hence, in Rosenberg, relation back was not allowed
where a plaintiff alleging slander sought to amend his complaint
to add a claim for assault. 478 F.2d at 526. The Court noted that
no mention of assault was made in the original complaint. Even
though the assault was close in time to the slander, therefore,
fair notice of a claim of assault was not provided by the
original pleadings. Similarly, in Holdridge v. Heyer-Schulte
Corp. of Santa Barbara, 440 F. Supp. 1088 (N.D.N.Y. 1977), the
court did not allow relation back of a claim for malpractice in
May 1972 to the original complaint of malpractice in July 1971.
In arriving at that conclusion, the court cited several cases
where relation back was not allowed, all of which concern
amendments adding factual allegations distinct in time and in
transaction from those of the original complaint. Id. at 1094.
See also Marine Midland Bank v. Keplinger & Associates, Inc., 94
F.R.D. 101, 104 (S.D.N.Y. 1982) (no relation back where
plaintiffs' claim of reliance on August 1977 statements expanded
to include reliance on continuing statements through March 1979
and a continuing failure to correct the 1979 misstatements);
Textile Museum v. F. Eberstadt & Co., Inc., 453 F. Supp. 72, 75
(S.D.N.Y. 1978) (claim that investment service should have
recommended sale in 1974 does not relate back to complaint
alleging service should not have recommended purchase in 1969);
Artman v. International Harvester Co., 355 F. Supp. 476 (W.D.Pa.
1972) (no relation back of antitrust violations adding completely
new factual allegations to original complaint of breach of
contract and unfair dealing between two parties).
All of these cases involve amendments that are distinct from
the original pleadings. In some, the original and the amended
sets of facts were separated by a significant time lapse, such as
the one year lapse in Holdridge. In others, the two sets of facts
were different in character, such as the claims in Rosenberg of
slander and assault. In still others, the two sets of facts led
to arguably different injuries, as in Rosenberg, Textile, and
Marine Midland. Relation back was clearly inappropriate in these
cases under Rule 15(c).
Between these two clear principles is a grey area where courts
have allowed relation back when amendments have added factual
allegations that can be characterized as falling with the general
"transaction" alleged in the original complaint. These cases rely
for their holdings, sometimes only implicitly, on the philosophy
of the Federal Rules to reject rigid categories of causes of
actions in favor of a transactional or claim analysis. 3 J.
Moore, supra, at 15-184, 185, 194. Whether these courts refer to
"the events leading up to the injury," Tiller v. Atlantic Coast
Line R. Co., 323 U.S. 574, 581, 65 S.Ct. 421, 424, 89 L.Ed. 465
(1945); "the same occurrence," Hageman v. Signal L.P. Gas, Inc.,
486 F.2d 479, 484 (6th Cir. 1973); or "the whole transaction,"
Goodman v. Poland, 395 F. Supp. 660, 684 (D.Md. 1975), they in
effect allow additional factual allegations to relate back under
Rule 15(c). These case, however, concern factual additions that
are much more closely related in time and in transaction to the
original allegations than the amendments discussed in the
immediately preceding paragraph.
An example of this close relationship between the originally
alleged transaction and the factual amendments can be found in
Tiller. There, plaintiff alleged that her husband's death was
caused by the defendants' failure to provide a proper lookout for
him, to warn him of the approaching train, to keep the head car
properly lighted, and to warn him of a sudden change in the
method of shifting cars. The Court explained:
The amended complaint charged the failure to have the
locomotive properly lighted. Both of them related to
the same general conduct, transaction and occurrence
which involved the death of the deceased. . . . The
cause of action now, as it was in the beginning, is
the same — it is a suit to recover damages for
the alleged wrongful death of the deceased. . . .
There is no reason to apply a statute of limitations
when, as here, the respondent has had notice from the
beginning that petitioner was trying to enforce a
claim against it because of the events leading up to
the death. . . .
323 U.S. at 581, 65 S.Ct. at 424. Hence, while a new fact was
added to the original pleadings, the underlying claim was
basically the same.
Likewise, in Graboi v. Kibel, 432 F. Supp. 572, 575 (S.D.N Y
1977), the plaintiff, who had been raped in defendant's apartment
building by a building employee, originally alleged breach of
contract and vicarious liability for the defendant's employee's
tort. The attempted amendments added theories of negligent
design, maintenance, and construction ...