The opinion of the court was delivered by: NORDBERG
JOHN A. NORDBERG, UNITED STATES DISTRICT JUDGE
The plaintiffs, Carol and Joseph Garcia, have brought this diversity tort suit against the defendants, Peter Carlton Enterprises, Ltd. ("Enterprises")
and Peter Carlton at 818 East 47th Street, Inc. ("818 E. 47th St.").
The plaintiffs allege that the defendants failed to take adequate steps to protect Mrs. Garcia from an assault that occurred on January 11, 1986, in the parking lot of a Popeye's Fried Chicken restaurant operated by 818 E. 47th St. Defendant 818 E. 47th St. has brought a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) (6).
For the following reasons, the court dismisses the defendant 818 E. 47th St. with prejudice.
After unsuccessful settlement negotiations with Enterprises' insurer, The Travelers Companies ("Travelers"), the plaintiffs filed a complaint in this court against Enterprises on January 8, 1988. On January 9, 1988, the plaintiffs mailed copies of the complaint to Mr. William Goodall, Enterprises' registered agent, and to Mr. Thomas Lysaught, Travelers' claim representative. On January 11, 1988, the two-year statute of limitations expired. Goodall received the summons on January 12, 1988, and the plaintiffs concede that defendant Enterprises received the summons after the statute of limitations expired. See Plaintiffs' Memorandum in Support of Response in Opposition to Defendant's Motion to Dismiss at 5. It is unknown when Lysaught received his copy of the complaint.
On September 8, 1988, this court granted Enterprises' motion to dismiss, which alleged that the defendant owed no duty to the plaintiffs; the court also granted the plaintiffs leave to file an amended complaint. During the course of discovery, the plaintiffs learned that Peter Carlton at 818 East 47th Street, Inc. was the owner of the premises upon which the plaintiff was injured. On March 7, 1989, the court granted the plaintiffs' motion to file a second amended complaint naming 818 E. 47th St. as an additional party defendant. The plaintiffs filed their second amended complaint on March 10, 1989, serving 818 E. 47th St.'s agent (again, Mr. William Goodall), with a copy of that complaint on March 13, 1989. The court denied Enterprises' motion to dismiss (which again alleged that the defendant owed no duty to the plaintiffs) on March 24, 1989.
Defendant 818 E. 47th St. then filed this motion to dismiss, asserting that the second amended complaint adding it as a defendant does not "relate back" under Rule 15(c) to the filing of the original complaint and, therefore, is barred by the statute of limitations. The plaintiffs, on the other hand, maintain that the second amended complaint relates back to the filing of the original complaint because the plaintiffs provided the defendants' agent, William Goodall, with constructive notice of the action by mailing service prior to the expiration of the statute of limitations.
Since the plaintiffs did not name 818 E. 47th St. initially, they have attempted to add this defendant under Rule 15(c), which permits an amended complaint to relate back to the original filing if certain conditions are met. Rule 15(c) provides in pertinent part:
Whenever the claim or defense asserted in the amended pleadings arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, 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.
The Supreme Court has made relation back under Rule 15(c) dependent upon four factors, all of which must be satisfied:
(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second ...