Legal Commentary

The Court heard arguments yesterday in Krupski v. Costa Crociere dealing with relation back of amendments under FRCP 15(c). I am not particularly good at counting noses or predicting based on oral argument, but a couple things jumped out at me.

1) The Justices are not great at the minutiae of civil procedure. Not surprising, I guess, since only one of them has any trial-court experience and that was fifteen years ago. Still, there were a lot of questions that seemed to treat the limitations period as the relevant time frame, rather than the 120-day period that begins from the filing of the complaint--a mistake my 1Ls know not to make.

2) The Court was more focused on the particular, peculiar facts of this case than I might have expected. Neither party was asked what I thought would have been the $64 question--what does "mistake concerning the proper party's identity" mean? There was a lot of talk about mistakes and whether one can make a mistake even having full knowledge (including a Breyer-esque hypo about not listening to your wife when she gives you directions), but nothing tied to the actual language of the rule.

I thought they might get there when the Chief proposed a hypo in which the plaintiff did not know which one of two identifiable, unrelated actors was responsible and sued the wrong one, suggesting (correctly, I believe) that would not be a situation in which relation back would be allowed. Justice Kennedy followed up with the proposition (not an unreasonable one) that Rule 15 is only about clerical errors (calling the right person/entity by the wrong name), not the situation here of picking the wrong person/entity. Otherwise, there would be a mistake in this case (where, after a reasonable inquiry, the plaintiff should have known which corporate name should have been sued) that would be excused, but not in the Chief's hypo (where a reasonable inquiry would not have enabled the plaintiff to know).

3) Defense counsel got the hardest time over why on earth the plaintiff would have knowingly sued the wrong party, other than because she made a "mistake." No one would do something like that deliberately, so there must have been a mistake. This is consistent with some lower courts, which have said that a mistake comes any time a plaintiff fails to sue a potentially liable defendant. The answer is that while this is a mistake, it may not be a mistake "concerning the proper party's identity." But nobody (counsel or bench) made that point, unfortunately--because it is the key to a proper interpretation of the Rule.

4) Defense counsel also got a hard time from Justice Scalia about the relevant time period and whether a defendant could lose knowledge as the 120-day period goes along. The defense argument was that, even if it believed there was a mistake at the outset, the plaintiff's delays in amending (several months passed, beyond the 120-day period) suggested to them that there had been a conscious choice to sue the wrong party and not a mistake. Scalia insisted that defendant's knowledge "within" the period was all that was required, not knowledge "throughout" the period.

Again, I am not good at predicting. But I could see the Court handing down a fairly broad interpretation of "mistake." Either way, this is another area of civ pro that will not be the same as the year before.