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IN RE OLYMPIA BREWING CO. SEC. LITIGATION

June 10, 1985

IN RE OLYMPIA BREWING COMPANY SECURITIES LITIGATION.


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 back issue.

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[2], 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 saying 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 ...


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