## Facts

- On August 9, 2008, Dustin Erwin attended a bachelor party at the Foxy Lady nightclub in Brockton, Massachusetts.
- After Erwin became intoxicated, nightclub staff asked him to leave; while leaving, he became involved in a physical altercation with a security guard.
- Erwin alleged that events moved into the parking lot and then a nearby Walgreens lot, where Officer Christopher McDermott (an off-duty Brockton police officer working a paid security detail) chased him and used mace.
- Erwin further alleged that Officer Darvin Anderson intentionally struck him with a police cruiser and ordered his police dog (Gomo) to attack, causing injuries that required hospitalization.
- Erwin was arrested for resisting arrest and assault and battery on a police officer, but he was later acquitted in state court.
- On July 26, 2011, Erwin filed a federal civil-rights action arising out of the incident, naming multiple defendants, including “The Foxy Lady, Inc.” (also referred to as “The Foxy Lady Corporation”) as the owner/operator of the nightclub.
- Erwin named that corporation based on corporate records and internet research indicating that the Foxy Lady corporate entity operated clubs in Massachusetts and that Thomas Tsoumas ran Foxy Lady locations, including Brockton.
- Attorney David Berman appeared for The Foxy Lady, Inc. and initially moved to dismiss, arguing that the club was not vicariously liable because McDermott’s conduct could not be imputed to the nightclub; the motion did not assert that the named Foxy Lady entity was the wrong owner.
- Discovery proceeded. In January 2012, The Foxy Lady, Inc. moved for summary judgment and, for the first time, asserted that Frank’s of Brockton, Inc. was the true owner of the Brockton Foxy Lady nightclub and the real party in interest.
- Erwin then moved to amend his complaint to substitute Frank’s of Brockton, Inc. for the previously named Foxy Lady entity and to dismiss the misnamed entity without prejudice.
- Frank’s (represented by the same counsel) opposed the amendment, arguing it was filed after the statute of limitations had run as to Frank’s and after the scheduling-order deadline for amendments.

## Issues

1. Whether Erwin’s proposed amendment substituting Frank’s of Brockton, Inc. for “The Foxy Lady, Inc.” relates back under Federal Rule of Civil Procedure 15(c)(1)(C), despite the expiration of the statute of limitations.
2. Whether the court should deny leave to amend because the motion was filed after the scheduling-order deadline for amendments.

## Decision

- The court granted Erwin’s motion for leave to amend to substitute Frank’s of Brockton, Inc. as the proper nightclub-owner defendant.
- The court held the amendment related back to the date of the original complaint under Rule 15(c)(1)(C).
- The court found the amendment concerned the same occurrence described in the original pleading and changed only the identity of the nightclub-owner defendant.
- The court concluded Frank’s had timely notice of the action and would not be prejudiced in defending on the merits, including because the same attorney represented the originally named Foxy Lady entity and then represented Frank’s.
- The court determined Erwin’s naming of the wrong corporate entity was a “mistake concerning the proper party’s identity” because the complaint showed he meant to sue the owner of the Brockton Foxy Lady but misidentified the corporate owner.
- Because Rule 15(c) relation back applied, the statute-of-limitations objection did not bar the substitution.
- The court declined to deny amendment solely based on the expired scheduling-order deadline, given how and when the ownership information was raised and the lack of unfair prejudice to Frank’s.

## Legal Principles

- Under Rule 15(a)(2), courts should freely give leave to amend when justice so requires; denial is generally reserved for undue delay, bad faith, repeated failure to cure deficiencies, undue prejudice, or futility.
- Under Rule 15(c)(1)(C), an amendment changing the party against whom a claim is asserted relates back when:
  - the amendment arises out of the conduct, transaction, or occurrence set out in the original pleading;
  - within the Rule 4(m) service period, the party to be added received notice of the action so it will not be prejudiced in defending on the merits; and
  - within that period, the party to be added knew or should have known that the action would have been brought against it but for a mistake concerning the proper party’s identity.
- A plaintiff’s misidentification of the correct corporate owner can qualify as a Rule 15(c) “mistake” where the complaint targets the owner/operator of a business, but the plaintiff names the wrong affiliated entity.
- Notice and knowledge under Rule 15(c) may be inferred where the newly added defendant shares counsel or a close relationship with the originally named defendant, supporting the conclusion that the correct entity understood it was omitted by error rather than by choice.
- When the Rule 15(c) requirements are met, relation back prevents a limitations bar that would otherwise apply to the newly named defendant.
- A scheduling-order amendment deadline does not require denial of leave to amend where the correct-party information emerges through the opposing party’s later position in the litigation and the amendment does not cause unfair prejudice.

## Conclusion

In *Erwin v. McDermott*, the District of Massachusetts allowed Erwin to amend his complaint to replace the misidentified Foxy Lady corporate defendant with Frank’s of Brockton, Inc., the asserted true owner of the nightclub, holding that the substitution related back under Rule 15(c) because it arose from the same incident, the correct entity had timely notice and would not be prejudiced, and the initial misnaming was a correctable identity mistake; the court therefore rejected statute-of-limitations and scheduling-deadline objections to the amendment.


Erwin v. McDermott, 284 F.R.D. 40 (2012)