in the original complaint (they do) and the "new" party, within the prescribed service time, has notice of the action so as not to be prejudiced in his defense and "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party."
Rule 15(c) was added to change the result in Schiavone v. Fortune, 477 U.S. 21, 91 L. Ed. 2d 18, 106 S. Ct. 2379 (1986). As the Advisory Committee Notes make clear, the rule change allows correction of a formal defect such as a misnomer or misidentification. That may be the result of a misspelling and, indeed, "Koletsos" was corrected without objection. He knew he was in the lawsuit, whether his name was spelled correctly or not. Baney is a closer call. Plaintiffs say that "Barnes" was really Baney. The question is whether Baney so understood that and knew he was in the lawsuit from the start. The record is unclear on that, and we defer ruling on the motion as it relates to him until that is clarified. Sepot and Duffy/Murray were not, however, misnamed. They were not named at all, and they cannot be added after the limitation period has run. Naming the City of Wood Dale doesn't toll the statute against all its police officers, although, for example, if plaintiffs had named the Wood Dale Police Department as a defendant, then that could be corrected to name the proper governmental entity. Does suing "unknown police officers" change anything? We think not, because that would carry the concept of misnomer too far. Those officers were not mistakenly named; they were, rather, unknown (although it appears that at least one plaintiff knew of Sepot right from the start). See Davis v. Frapolly, 742 F. Supp. 971, 973 (N.D. Ill. 1990). We do not believe that naming "unknown police officers" can extend the limitations period by 120 days. Fed.R.Civ.P. 15(c)(3) Advisory Committee Notes on 1991 Amendment.
The motion is granted with respect to defendants Sepot and Duffy/Murray. It is continued with respect to defendant Baney.
JAMES B. MORAN
Chief Judge, U.S. District Court
April 7, 1993
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