United States District Court, D. Alaska
CHARLES J. PERKINS, Plaintiff,
v.
STARS AND STRIPES REALTY, INC. & TIFFANY ALLEN, Defendants. STARS AND STRIPES REALTY, INC., Third-Party Plaintiff,
v.
VENDOR RESOURCE MANAGEMENT VRM on behalf of The Secretary of the United States Department of Veterans Affairs and WESLEY “BRENT” PRICE, Third-Party Defendants.
ORDER RE PENDING MOTIONS
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE.
Plaintiff
Charles J. Perkins initiated this action in Alaska state
court seeking personal injury damages arising from an
incident that occurred on February 24, 2014. The Complaint
alleges that Mr. Perkins fell through an open crawl space
access panel in a home that had been repossessed by the
Veteran Affairs Administration.[1]
Now
pending before the Court are two motions: (1) Stars and
Stripes' Motion for Ruling of Law at Docket
16;[2]
and (2) Vendor Resource Management's (VRM) Motion to
Dismiss or, in Alternative, for Partial Summary Judgment at
Docket 36.[3] Plaintiff filed oppositions to both
motions (Docket 32 and Docket 44), to which the movants
replied (Docket 41 and Docket 48). Oral argument was not
requested and was not necessary to the Court's
determination.
I.
VRM's Motion to Dismiss
VRM
seeks dismissal of Plaintiff's personal injury claims
against it on the ground that Plaintiff failed to sue VRM
before Alaska's two-year statute of limitations for tort
claims expired.[4]
Plaintiff
sustained his injury on February 24, 2014. The statute of
limitations thus expired on February 24, 2016.
Plaintiff's initial complaint was filed on January 30,
2015 and asserted claims against Stars & Stripes Realty,
Inc. (“Stars and Stripes”), the listing realtor
and selling agent of the property.[5] On September 17, 2015-230
days later- Stars and Stripes filed a third-party complaint
for allocation of fault against VRM, the entity retained by
the Department of Veterans Affairs to conduct property
preservation work in anticipation of the home's
sale.[6] But Stars and Stripes dismissed its
third-party complaint on April 8, 2016, after determining
that its agreement with VRM required Stars and Stripes to
defend and indemnify VRM from claims arising out of the
listing of the subject property.[7]
At the
time of that dismissal, the statute of limitations had lapsed
and Plaintiff had asserted no claims directly against VRM.
But on July 29, 2016, Plaintiff moved to amend its complaint
to add VRM as a defendant.[8] The state court granted that order,
[9] and
on August 28, 2016, the First Amended Civil Complaint was
filed.[10] VRM then removed the case to the
district court on the basis of 28 U.S.C. § 1442(a)(1)
and 28 U.S.C. § 1331.[11]
It is
undisputed that Plaintiff did not assert any direct claims
against VRM until after the expiration of the two-year
statute of limitations.[12] Plaintiff and VRM both recognize that
Plaintiff's claims against VRM can proceed only if they
“relate back” to the filing of the initial
complaint.[13]
Alaska
Rule of Civil Procedure 15(c)[14] provides:
Whenever the claim or defense asserted in the amended
pleading 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
Rule 4(j) for service of the summons and complaint, that
party (1) has received such notice of the institution of the
action that the party will not be prejudiced in maintaining a
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 the party.
This
rule thus sets out a four-part test for whether the
relation-back doctrine applies to an amended complaint
changing or adding a new defendant.[15] First, the amended
complaint must have arisen from the same “conduct,
transaction, or occurrence” as set forth in the initial
complaint. This element is not contested. Second, the new
party must have “received such notice of the
institution of the action that the party will not be
prejudiced.” Third, the new party must have known, 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.” Fourth, and most important
for purposes of this motion, the second and third
requirements must have been fulfilled “within the
period provided by Rule 4(j) for service of the summons and
complaint.” Here, VRM unquestionably was given notice
of the action before expiration of the statute of limitations
period when it was named as a third-party defendant. But the
relevant inquiry is not whether VRM had notice within the
period of limitations; Rule 15(c) provides that notice must
be “within the period provided by Rule 4(j) for service
of the summons of the complaint.” Alaska Civil Rule
4(j) provides that service must be made within 120 days of
filing of the complaint or within another period established
by the court for good cause shown.[16]
The
state court did not extend the deadline for service; both of
the then-named defendants were served within the 120-day
period.[17] VRM received notice of the action on or
about September 21, 2015, when Stars and Stripes served it
with the third-party complaint-230 days after Plaintiff filed
his complaint.[18] Because this notice was outside the
period prescribed by Rule 15(c), under the terms of that rule
Plaintiff cannot rely on the relation-back doctrine to
resuscitate any claims against VRM.
Plaintiff
asks the Court to consider the unique facts of this case to
avoid this consequence.[19] Plaintiff stresses that VRM had
actual notice of the action when it was named as a
third-party defendant within the limitations period. Thus,
Plaintiff maintains, it would be unfair to rely on the
technicality of the service period so as to preclude the
relation back to Plaintiff's initial complaint. Rather,
Plaintiff asserts that Rule 15(c) should be interpreted
expansively so as to permit his claim against VRM to proceed.
But the
equities in this case cut both ways. As Wright & Miller
explains in its discussion of the related federal rule,
whether the relation-back doctrine should apply turns on
“what the prospective defendant reasonably should have
understood about the plaintiff's intent in filing the
original complaint against the first defendant.” A
court should also consider how “the plaintiff's
postfiling conduct informs the prospective defendant's
understanding of whether the plaintiff initially made a
mistake concerning the proper party's
identity.”[20] Although VRM had notice of
Plaintiff's action within the period of limitations, VRM
did not have notice during that time that Plaintiff intended
to seek recovery from VRM, but for some mistake. Instead,
Plaintiff did not seek to add VRM as a direct defendant until
almost a year after VRM had been added as a third-party
defendant. This long period of inaction would reasonably
communicate to VRM that Plaintiff did not intend to pursue
any claims against VRM directly.
In
Boerger v. Commerce Insurance, a case raising
analogous issues under the federal rules, the plaintiff sued
his insurance agents following a fire. He contended that the
agents had been negligent in failing to procure adequate
insurance and sought the difference between the full loss and
the insured loss. The agents brought a third-party action
against the insurer within the two-year statute of
limitations for commercial liability, but outside the period
for service of the original complaint. Plaintiff then, and
outside the period of limitations, sought to add the insurer
as a direct defendant.[21] The district court denied leave to
amend, concluding that the insurer “was not on notice
of its potential involvement as a direct defendant
within the 120-day time period.”[22]
In this
case, just as in Boerger, Plaintiff was well aware
of the third-party defendant's identity and role in
underlying events within the statute of limitations, yet
failed to bring any direct claims against VRM during that
period. Plaintiff was aware of VRM's potential liability
since at least September 14, 2015, the date Stars and Stripes
joined VRM as a third-party defendant for the purpose of
allocation of fault.[23] Even if Plaintiff did not learn of
VRM's identity until that time, he had from September 14,
2015 until February 23, 2016 to add VRM as a direct
defendant.[24] And, at the same time, Plaintiff cannot
show that on or before either May 30, 2015 (when the 120-day
service period lapsed), or February 23, 2016 (when the
statute of limitations lapsed), VRM “knew or should
have known that, but for a mistake concerning the identity of
the proper party, the action would have been brought against
[VRM].” Therefore, the claims Plaintiff seeks to bring
against VRM do not relate back to the date of his initial
complaint, even if Rule 15(c) is read as expansively as
proposed by Plaintiff.[25]
Plaintiff
also argues that there is an identity of interests between
Stars and Stripes and VRM such that the timely assertions of
claims against Stars and Stripes should be imputed to VRM.
But Plaintiff fails to show that there was a sufficient nexus
between VRM and Stars and Stripes, two separate entities who
contracted for the provision of licensed services, to
establish the required “identity of
interest.”[26] And even assuming notice to Stars and
Stripes could be imputed to VRM, Plaintiff has not shown that
the failure to initially identify VRM as a defendant was due
to a mistake.[27] Plaintiff contends he did not initially
name VRM as a defendant because “it was unclear who
actually owned” the property.[28] But Plaintiff was put on
notice of the VA's purported ownership of the property no
later than the filing of the third-party complaint in
September 2015, [29] and if there was any question as to
ownership, Plaintiff could also have examined the relevant
land records.
But
more importantly, Plaintiff never sued any other party as an
owner: in his initial complaint, Plaintiff recognized Stars
and Stripes as “the Alaskan Listing Realtor, ”
not as the owner.[30] Ms. Allen, the other named defendant,
was identified in the initial complaint as “the
girlfriend of Mr. Leslie Price, who had contracted . . . to
purchase” the property.[31]If anything, in the initial
complaint Plaintiff ascribed ownership either to Mr. Price
(who had the house under contract) or the Department of
Veterans Affairs.[32] But Plaintiff, for whatever reason,
named neither Mr. Price nor the VA as a defendant in the
initial complaint. Plaintiff cannot claim a mistake as to the
identity of the proper owner of the property when Plaintiff
never sought-until the late amendment-to sue any potential
owner. A tactical decision to omit a possible class of
defendant “bars the application of the relation-back
doctrine.”[33] Plaintiff has not demonstrated that he
made a mistake as to the true owner of the property;
Plaintiff never sought to sue the owner of the property until
after the statute of limitations had expired.
Because
Plaintiff did not bring his direct claims against VRM within
the applicable two-year statute of limitations period, and
because Plaintiff cannot rely on the relation-back doctrine,
Plaintiff's claims against VRM must be dismissed as
time-barred.
II.
Notice of ...