argues that the Second Amended Complaint does not relate back to the Complaint and that the statute of limitations bars this action. The Plan's arguments are not persuasive.
The Complaint is a standard form made available by the Court's pro se office. The printed allegations of the Complaint state that the action is brought pursuant to the ADEA. Davis himself completed several parts of the Complaint; Davis named the Union as defendant, and he noted among the alleged facts his receipt of $ 84 per month in pension benefits instead of $ 600 to $ 700. Compl. P 9.
With the Amended Complaint, Davis named the Plan as defendant and provided a clearer explanation for the basis of his suit: "[the Plan] is paying me a pension of $ 84 a month, when I should be getting much more money, because I have worked in a union job since 1944 and the pension plan started in 1951." Am. Compl. P 1(c). The Amended Complaint also changed the grounds for suit from ADEA to ERISA. Am. Compl. P 1(d). The Second Amended Complaint, the first filed by Davis with the assistance of counsel, added significantly to the allegations but essentially asserted the same underlying claim for increased pension benefits.
Whether this action is timely as to the Plan depends upon whether the Second Amended Complaint is deemed to relate back to the Complaint under Fed. R. Civ. P. 15(c).
Relation back is dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for the mistake concerning identity, the action would have been brought against it; (4) the second and third requirements must have been fulfilled within the prescribed limitations period.
Schiavone v. Fortune, 477 U.S. 21, 29, 106 S. Ct. 2379, 2384, 91 L. Ed. 2d 18 (1986).
As to the first factor, the Plan contends that because the Complaint alleged age discrimination and the Amended Complaint alleged violations of ERISA, the two claims did not arise out of the same conduct. Clearly, the Complaint does not set out how the Plan allegedly miscalculated Davis' pension benefits in the same detail subsequently alleged in the Second Amended Complaint. Nevertheless, Davis has continuously alleged the same underlying transaction or occurrence -- a deficiency in his pension benefits. Because Davis asserts the same basic claim in both the Complaint and the Amended Complaint, I find that the first factor of the Schiavone test is met. See Villante v. Dep't of Corrections of City of New York, 786 F.2d 516, 520 (2d Cir. 1986) (pro se complaints to be construed liberally).
The second Schiavone factor, in combination with the fourth factor, requires that the Plan have received notice of the institution of suit against the Union prior to May 4, 1990. Official service of the Complaint upon the Union occurred at the latest on April 24, 1990.
Davis asserts that the Plan also received notice of the Complaint prior to May 4, 1990 on the basis of three facts: (1) the Trustees included six representatives of the Union (Davis Aff. ex. 6 at 3 (Summary Plan Description)); (2) the Plan and the Union had offices in the same building; and (3) the Plan and the Union were represented by the same law firm ("PCKH&K").
Several courts have held under similar circumstances that notice to counsel constitutes notice to a defendant for purposes of Rule 15(c). See, e.g., Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1447 (9th Cir. 1990); Barkins v. Int'l Inns, Inc., 825 F.2d 905 (5th Cir. 1987) (and cases cited therein). The Second Circuit has held that the sharing of counsel can constitute proper notice upon "some showing that the attorney(s) knew that the additional defendants would be added to the existing suit." Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989); see Hodge v. Ruperto, 739 F. Supp. 873, 881 (S.D.N.Y. 1990) (counsel should have known that additional defendants would be added); Lagana v. Toyofuki Kaiun, K.K., 124 F.R.D. 555 (S.D.N.Y. 1989).
The circumstances surrounding the Complaint establish that the Plan received either actual or constructive notice of the institution of this lawsuit prior to May 4, 1990. PCKH&K filed the Union's answer to the Complaint. Among the affirmative defenses included in the answer, the Union asserted that Davis failed to state a claim upon which relief could be granted and that the Union was not a proper party pursuant to Fed. R. Civ. P. 10(a). Viewing the Complaint's allegations regarding Davis' pension benefits together with the Union's answer, it is inconceivable that PCKH&K did not recognize that the Plan was implicated in this lawsuit. A reasonable inquiry, as demanded by Fed. R. Civ. P. 11, into the allegations of the Complaint would have forced PCKH&K to draw the conclusion that Davis in fact sought to state a claim against the Plan.
Clearly, PCKH&K then had a duty to inform the Plan of the suit.
Taking into account (1) the fact that PCKH&K in all likelihood notified the Plan of the lawsuit, (2) the fact that the Union and the Plan shared an office building, and (3) the fact that the Trustees included six representatives of the Union, it is very likely that the Plan received actual notice of the Complaint. On this point, it is also noteworthy that PCKH&K and any member of the Trustees (including the six representatives of the Union) were designated agents for the service of legal process on the Plan. Davis Aff. ex. 6 at 3 (Summary Plan Description).
However, even if there were no actual notice, constructive notice surely existed because PCKH&K should have known, and appears to have in fact known, that the Plan would be added as a defendant.
See Gleason, supra. Next, regarding the requirement of the second Schiavone factor that the Plan have received sufficient notice in order that it not be prejudiced, the record discloses no prejudice inflicted upon the Plan.
Finally, for the same reasons as stated above, I find that the third Schiavone factor is met because the Plan knew or should have known that, but for Davis' mistake in the Complaint, this lawsuit would have initially been brought by Davis against the Plan.
This lawsuit illustrates the numerous pitfalls into which even a diligent pro se plaintiff can fall. The law of statutes of limitations nevertheless permits Davis to go forward. Accordingly, the Plan's motion to dismiss is denied.
Dated: New York, New York
December 22, 1992
Loretta A. Preska, U.S.D.J.