[Drug and Device Law] Mississippi Plaintiff Defeated By Improper Construction of "Amend As A Matter Of Course" Rule
We spent the past weekend in Cleveland, visiting a dear law school friend of whom we see much too little. Cleveland deserves more press as a travel destination. It boasts beautiful architecture, (including spectacular bridges, like the Detroit-Superior Bridge over the Cuyahoga River), reasonable prices, and the Cleveland Clinic. It is also home to the world-class Cleveland Symphony and the renowned Cleveland Museum of Art. But (not surprisingly, for regular readers of our posts) our most memorable afternoon was spent in that mecca of popular culture, the Rock and Roll Hall of Fame. We had to be dragged away from the continuous loop of induction ceremony highlights. We gleefully donned headphones and entered a simulated recording booth, where we “laid down the harmony track” over a melody line sung by a popular artist. We stared at Elvis’s army uniform and the sheet of paper on which Neil Young first jotted the lyrics for “Heart of Gold.” But we were most captivated by a room-size exhibit devoted to one of our personal idols, Graham Nash, a two-time Hall inductee (with the Hollies and with Crosby, Stills and Nash), onetime Joni Mitchell cohabitant, and author of a song in serious contention to be our all-time favorite, the folk-y classic “Teach Your Children.” (In a minute, we will find a way to tie this, however tenuously, to something legal. We make no such attempt with this link to a lovely moment from the 2007 American Idol finale, on which Nash sat on a stool with an acoustic guitar and performed this song with an Idol finalist.)
Nash is an intelligent, socially-conscious man of diverse talents that include painting and photography. Among the tidbits revealed in the headphone-accessible interview clips interspersed throughout the exhibit was the fact that he is also a serious collector of memorabilia. He seeks to acquire items that capture the seminal moments of significant political and musical events. (For example, his collection includes a piece of the fence that rings the grassy knoll in Dallas.) In today’s case (see – we told you!), a minor cautionary tale from the Mississippi Supreme Court, the seminal moment in the demise of the plaintiff’s case occurred 120 days after she filed her First Amended Complaint. While rock-and-rollers can often flout the rules, it’s always a good idea for lawyers to follow them, as this case demonstrates.
In Meeks v. Hologic, Inc., 2015 Miss. LEXIS 610 (Dec. 17, 2015), plaintiff initially sued a physician and a medical center for injuries she had allegedly sustained two years earlier during outpatient gynecologic surgery. Both defendants answered the Complaint. Two years and 363 days after she discovered her injuries (this becomes important, because Mississippi has a three-year statute of limitations), with leave of court pursuant to the Mississippi rules, plaintiff filed her First Amended Complaint (“FAC”) adding Hologic, manufacturer of a device used in her surgery, as a defendant, and adding warranty claims against all defendants. Plaintiff served the doctor and the medical center with the FAC, but never served the FAC upon Hologic. Neither the doctor nor the medical center answered the FAC. (This was also important in the plaintiff’s mind, but it wasn’t really.)
A month later, plaintiff filed a Second Amended Complaint (“SAC”) without seeking leave of court or permission of the defendants. Plaintiff served all three named defendants with the SAC. The doctor and the medical center answered the SAC. After unsuccessfully removing the case to federal court, Hologic filed a motion to dismiss plaintiff’s claims against it. The trial court granted the motion, holding that: 1) the SAC should be struck because it was filed without leave of court, in violation of Mississippi rules; and 2) plaintiff’s claims against Hologic were barred by Mississippi’s three-year statute of limitations. Plaintiff appealed, whereupon ensued a battle over the correct interpretation of Mississippi R. Civ. P. 15(a).
Rule 15(a) provides that “a party may amend a pleading as a matter of course before a responsive pleading is served” but otherwise must obtain leave of court or written consent of adverse parties. Plaintiff argued that her right to amend her complaint without leave or consent started over each time she filed a new complaint. Thus, although the doctor and the medical center had filed answers to the original complaint, they hadn’t answered the FAC, so, she argued, she could file the SAC without leave or consent. The court disagreed, holding that, “while no defendant had responded to the new claims in the FAC, [plaintiff] no longer had a right to amend as a matter of course after responsive pleadings were filed to the original complaint, and leave of court or permission from all defendants . . . was required to file the SAC.” Meeks, 2015 Miss. LEXIS 610 at *9. The court concluded that the SAC was improperly filed and must be dismissed, emphasizing that any other result would give plaintiff “a rubber stamp to repeatedly amend her complaint, therefore giving her an unfair advantage.” Id. at *13.
The court next turned to the trial court’s conclusion that the FAC was also improper because it was barred by Mississippi's three-year statute of limitations. The court noted that the FAC was filed two days before the three-year anniversary of plaintiff’s discovery of her injuries, tolling the statute of limitations. However, the court explained, “[w]hile the filing of a complaint tolls the statute of limitations, if service is not made upon the defendant within 120 days . . . , the limitations period begins running at the end of the 120 days.” Id. at *15 (citation omitted). Because plaintiff never served Hologic with the FAC, the statute resumed running at the end of the 120-day period. Only two days were left in the statutory period, and it expired with Hologic still unserved. Despite plaintiff’s arguments to the contrary, the court held that this reality was not altered by plaintiff’s service of the SAC on Hologic within the 120-day service window for the FAC. Since the SAC was filed in violation of the Mississippi rules, it was a nullity, and service of it was irrelevant.
Plaintiff next argued that the statute of limitations wasn’t implicated because Hologic received a copy of the FAC within the 120-day period, as was evident when it attached the copy to its Notice of Removal. The court emphasized, “Regardless of whether Hologic received a copy of the FAC . . . , [plaintiff] didn’t serve the FAC upon Hologic. Proper service is required to toll the statute of limitations.” Id.
Finally, plaintiff argued that the FAC related back to the date of the filing of her original complaint. The court explained that, under Miss. R. Civ. P. 15(c), a claim relates back to the original pleading when it arises out of the conduct set forth in the original pleading. However, when the amendment adds a new defendant, it only relates back if it is served upon the new defendant within 120 days of the filing of the original complaint. Plaintiff never served the FAC upon Hologic, and therefore obviously didn’t effect such service within 120 days of the filing of the original complaint. That didn’t end the inquiry, however. The court explained that “courts also inquire into whether the opposing party had been put on [timely] notice regarding the claim or defense raised by the amended pleadings.” Id. at *18 (citation omitted). In this case, Hologic wasn’t put on such notice until “314 days from the filing of the original complaint, well after the 120-day time period required by Rule 15(c). Id. Thus, there was no “relation back,” and plaintiff’s claims against Hologic were time-barred.
Simple stuff. Read the rules. Know how they have been construed and applied. And, while you’re at it, Teach Your Children Well.
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Posted By Rachel B. Weil to Drug and Device Law at 1/14/2016 04:15:00 PM --
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