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HENSLEY v. SOO-LINE R.R. CO.

October 29, 1991

RICHARD B. HENSLEY, Plaintiff,
v.
SOO-LINE RAILROAD COMPANY, and MID-SOUTH CORPORATION, Defendants


George M. Marovich, United States District Judge.


The opinion of the court was delivered by: MAROVICH

The plaintiff, Richard B. Hensley ["Hensley"], filed this action against defendants, Soo-Line Railroad Company ("Soo-Line") and Mid-South Corporation ("Mid-South") pursuant to the Federal Employer's Liability Act, 45 U.S.C. § 51 ["FELA"], and the Federal Safety Appliance Act, 45 U.S.C. § 2 ["FSAA"], for damages arising out of injuries suffered on June 1, 1988. Originally, Soo-Line was the only defendant named in the complaint. On July 12, 1991, Hensley filed an amended complaint adding Mid-South Corporation as a defendant. Mid-South has brought a motion to dismiss pursuant to the Federal Rules of Civil Procedure ("Rule") 8(c) alleging that the complaint was barred by the statute of limitations. After reviewing the record, we dismiss plaintiff's complaint against Mid-South for failure to add Mid-South as a defendant before the expiration of the applicable statute of limitations period.

 BACKGROUND

 Plaintiff's counsel sent a lien letter regarding plaintiff's injury to Mid-South and MLRC on January 30, 1991. On July 12, 1991, we dismissed the complaint against NLG, allowing plaintiff leave to amend to add Mid-South as a defendant. Mid-South now moves to dismiss the complaint, alleging the Rule 8(c) affirmative defense of the statute of limitations. Mid-South states correctly that the three year statute of limitations for FELA and FSAA causes of action expired before plaintiff's amendment. Therefore, the only issue to be resolved here is whether the amendment adding Mid-South as a defendant "relates back" to the date of the original pleading under Rule 15(c).

 DISCUSSION

 When faced with a defendant's motion to dismiss, the court must "take as true all facts alleged and make all reasonable inferences in the light most favorable to the plaintiff." Ramirez v. Commonwealth Edison, No. 87 C 9015 (N.D. Ill. June 4, 1990) (LEXIS, Genfed library, Dist file) (citing Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir. 1976)). The facts clearly indicate that plaintiff did not amend the complaint to add Mid-South as a defendant within the limitations period. However, an amendment to change the party against whom a claim is asserted may relate back to the date of the original pleading under some limited circumstances. Fed. R. Civ. P. 15(c). *fn1"

 The four prerequisites to relate back under Rule 15(c) are:

 (1) The amended claim must arise out of the same occurrence as in the original pleading;

 (2) The party to be substituted has received notice so as not to be prejudiced in its defense against the claim;

 (3) The party to be substituted knew or should have known that, but for a mistake, the suit would have been brought against him/her; and

 (4) The second and third requirements must have been fulfilled within the prescribed limitations period.

 Schiavone v. Fortune, 477 U.S. 21, 29, 91 L. Ed. 2d 18, 106 S. Ct. 2379 (1986).

 The Supreme Court held in Schiavone that "the linchpin [to Rule 15(c)] is notice, and notice within the limitations period." 477 U.S. at 31. Notice is necessary to avoid prejudice to new defendants. Case law provides that "prejudice" as used in the third requirement is "prima facially established where the added party is deprived of the defense of the statute of limitations." Norton v. International Harvester Co., 627 F.2d 18, 20 (7th Cir. 1980). "However, if the party had notice -- either formal or informal -- within the limitations period . . . then relation back would not be prejudicial." Id. at 20-21. Notice must be actual, not constructive. Garcia v. Peter Carlton Enterprises, Ltd., 717 F. Supp. 1321, 1324 (N.D. ...


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