Legal Commentary

The Supreme Court decided Krupski v. Costa Crociere on Monday; I was traveling with my daughter earlier this week, so this is my first chance to write about the case (which I discussed after argument).

A unanimous Court (through Justice Sotomayor, with Justice Scalia concurring in part and concurring in the judgment) held that relation back under FRCP 15(c) should have been allowed where the plaintiff sued the cruise line rather than the similarly named (and related) ship owner/carrier, which was the properly liable party under the terms of the ticket. The relevant consideration is whether the to-be-added defendant knew or should have known that it was a target of the action and would have been sued but for the plaintiff's mistake concerning the proper party's identity; it does not matter what the plaintiff knew of the existence of the to-be-added defendant at the time of filing the original complaint. Whether there has been a mistake concerning the proper party's identity may be determined, in part, by what the plaintiff knew about different parties and their conduct in the underlying events. But the plaintiff's knowledge should not be the central inquiry.

Some thoughts after the jump.

1) The Court adopted a very broad understanding of "mistake concerning the proper party's identity," which is a good thing. It now covers a situation in which a plaintiff knows of the existence of a potential defendant but does not sue that defendant initially because she may "nonetheless harbor a misunderstanding about his status or role in the events giving rise to the claim at issue, and she may mistakenly choose to sue a different defendant based on that misimpression." A mistake occurs when the plaintiff "misunderstood crucial facts regarding" different defendants' (or potential defendants') identities. Only if the plaintiff's failure to name a particular defendant was based on a "fully informed decision" not to pursue a particular person will relation back be denied. In addition, the Court suggested a mistake has occurred when it is impossible to identify any reasonable strategy behind suing the named defendant and not the to-be-added defendant; in other words, if there is no reason for the plaintiff not to sue some party, her failure to sue that party must have been a mistake.

Justice Sotomayor gave some examples. A plaintiff may know that A exists, but erroneously believe that A has the status of B. Or a plaintiff may know what A does, but misunderstand the roles that A and B played in the underlying conduct, transaction, or occurrence. That was basically the case here. Krupski, the complaint made clear, intended to sue "the company that 'owned, operated, managed, supervised and controlled' the ship on which she was injured," but she erred about which related and similar Costa entity (Costa Cruise, rather than Costa Crociere) met that description.

Just how broad mistake now is remains to be seen, of course. At oral argument, the Chief posed the following hypo: Plaintiff is pushed from behind by either A or B, not sure which. If plaintiff sues A, then finds out that it actually was B who pushed her, is that a mistake? Prior to Krupski, I (and many courts) would have said no. This was a mistake, but not a mistake concerning the proper party's identity, which the Advisory Committee suggested focused on situations of misnomer or misidentification. That is, situations where the plaintiff sued the correct person/entity but called it by the wrong name. Krupski suggests that it now includes the situation of confusion between two distinct persons/entities as to which is properly liable.

The real work in a case such as this will be done not by the mistake prong, but by the notice/prejudice elements of the rule; if there is no connection whatsoever between A and B, B will not have received the necessary notice to allow relation back. On the other hand, there likely will be sufficient notice where (as here) the confusion is between related and/or similarly named entities (say, parent-subsidiary or employer-employee), at least where the complaint makes clear which actor in the real-world drama the plaintiff intended to sue.

This broad reading also should affect the case in which the plaintiff adds a new defendant who is liable in addition to the defendant named (as opposed to replacing the named defendant). In other words, Plaintiff sues only B, then learns through discovery about A's existence or that A also may be liable for her injuries. Under the Court's approach, it seems pretty clear that the Plaintiff has made a mistake here for relation back purposes (again, subject to notice requirements).

2) Many civ pro professors hoped the Court might give some guidance in this case on handling Doe defendants (an increasingly common issue in, for example, § 1983/Bivens actions against law enforcement and in internet-based cases), but the Court said nothing. The prevailing view had been that relation back was not allowed for Doe (and, it should follow, pseudonymous) defendants because the plaintiff did not make a "mistake" in suing Doe; she sued Doe because she did not know the defendant's identity, but lack of knowledge is not a mistake.

It is not clear that Krupski changes anything about that. Lower courts still can insist that lack of knowledge is not a mistake. On the other hand, some courts could reasonably take a hint from the Court's broad understanding of mistake. Notably, at one point Justice Sotomayor quoted Webster's for a definition of mistake as "a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention." (emphasis mine). So one might argue (as I have) that there is a mistake concerning identity when the plaintiff sues a person as Doe or a pseudonym (a wrong action in terms of pleading) because she had inadequate knowledge of the defendant's actual identity.

Indeed, the point of the Court's broad interpretation of mistake seems to be to de-emphasize that prong of Rule 15 and to let the notice/prejudice elements do the heavy lifting. In other words, if the plaintiff sued B when she should have sued A, she made a mistake and relation back should be allowed, so long as A had sufficient notice. There is no reason not to follow a similar approach in Doe/pseudonym cases--especially when (as in § 1983/Bivens cases) there probably will be a close relationship between the government entity/supervisor defendants and Doe, such that Doe likely will learn of the lawsuit and his place in it.

3) Justice Scalia continued to be persnickety about his textualism, declining to join those portions of the majority that looked to the Advisory Committee notes, which Scalia likened to verboten legislative history. Jon Siegel and Mike Dorf both take Scalia to task for treating the Advisory Committee notes as ordinary legislative history. The Committee Notes, much like the Comments of the UCC Commissioners or the Sentencing Commission, always have been viewed (including by Scalia, at least at times) as having a closer connection to the text, because, unlike ordinary legislative history which looks to Committee reports and individual legislators' statements, they are the words of the entire body that drafted the Rule. It remains to be seen whether this has long-term implications for how the Court deals with the various federal procedural rules. The new summary judgment rule, likely to take effect on December 1 of this year, could provide a test case, since much of the new rule's meaning and application will depend on the Advisory Committee Notes.