United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROBERT M. LEVY, Magistrate Judge.
This case is before me on consent of the parties, pursuant to 28 U.S.C. § 646(c). (See Consent to Jurisdiction by U.S. Magistrate Judge, dated Sept. 30. 2014.) Plaintiffs now move for leave to amend the complaint to correct the names of defendants. Specifically, they seek to change two of defendants' names from "Sandals Regency" and "Sandals La Toc Golf Resort & Spa" to "Latoc Holding Limited" and "Ciceron Management Limited." Defendants oppose the motion. I heard oral argument on December 9, 2014 and issued a ruling on the record, which is memorialized here.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiffs commenced this personal injury action in February 2011, based on a motor vehicle accident that occurred on October 16, 2010 at the Sandals Regency La Toc Golf Resort and Spa in St. Lucia. (See Complaint, dated Feb. 23, 2011 ("Compl.").) Plaintiffs Marisa Ann Perez and Alan Guarino allege that, as they were walking on the resort grounds, a shuttle bus operated by defendant Frederick Prospere, a Sandals employee, hit Ms. Perez. Ms. Perez claims to have sustained a complicated fracture to her right leg and ankle, resulting in five operations. She also claims to have been diagnosed with Reflex Sympathetic Dystrophy (a/k/a Complex Regional Pain Syndrome).
In their complaint, plaintiffs named as defendants Sandals Resorts International, Ltd., Sandals Regency, Sandals La Toc Golf Resort & Spa, and Frederick Prospere. (See Compl.) An Answer was filed and served on behalf of all defendants, stating that Sandals Regency and Sandals La Toc Golf Resort & Spa were "improperly named." (See Answer, dated Mar. 23, 2011.) Defendants also asserted as their Fourteenth Affirmative Defense that "Defendants do not own or operate the hotel where the incident is alleged to have occurred" and as a Fifteenth Affirmative Defense that "[s]ervice of process has not been properly effected on all defendants." (Id.) Nonetheless, Day Pitney LLP appeared on behalf of all defendants, participated in numerous court conferences and mediation, and engaged in discovery, including depositions taken in St. Lucia.
Plaintiffs now seek to amend the complaint to correct the names of two of the defendants. They admit that they "neglected to seek to correct the misnomer earlier, " but they blame defendants' "course of conduct" and "failure to move for a dismissal, " and they argue that the amendment will not prejudice defendants, delay the trial, or create a need for additional discovery. (See Pls.' Motion to Amend/Correct/Supplement the Complaint, dated Sept. 29, 2014 ("Pls.' Mem.").)
Defendants argue that they made plaintiffs aware of defendants' identities in Interrogatory Responses served on June 23, 2011. At a conference on July 11, 2011, the court entered an order setting September 15, 2011 as the deadline for amending the pleadings. Defendants contend that plaintiffs should have moved to amend the pleadings at that time, and that their failure to do so prejudices the mis-named defendants, who claim they are not subject to personal jurisdiction in this court. According to defendants, Latoc Holding Limited and Ciceron Management Limited are located in St. Lucia; they contend that they never moved to dismiss for lack of personal jurisdiction because they were never properly named as defendants or served with the complaint. (See Defs.' Mem. of Law in Opp. to Pls.' Motion for Leave to Amend the Complaint, dated Oct. 9, 2014.)
Plaintiffs respond that defendants "waived and forfeited their opportunity to raise the defense of personal jurisdiction and improper service" by participating in the litigation, failing to object or claim improper service earlier, and not informing plaintiffs of defendants' correct names in discovery. (See Pls.' Mem. of Law in Reply and Further Support of Pls.' Motion to Amend the Pleadings, dated Oct. 15, 2014.) They state that they fully expected defendants' counsel to stipulate to the name correction, and they contend that defendants cannot be prejudiced, since they had full notice of the incident and their interests have been fully represented in this case. (Id.)
The "misnomer" rule operates in cases where a plaintiff has actually sued and served the correct party but has mistakenly used the wrong name of the defendant in the original caption. Flynn v. Best Buy Auto Sales, 218 F.R.D. 94, 97 (E.D. Pa. 2003) (citing Munetz v. Eaton Yale and Towne, Inc., 57 F.R.D. 476, 479 (E.D. Pa. 1973)). See also Circuito Cerrado Inc. v. La Camisa Negra Rest. & Bar Corp., No. 09 CV 5181, 2011 WL 1131113, at *2 (E.D.N.Y. Mar. 7, 2011) ("Where there is notice and no discernible prejudice, amendment has been allowed to correct the name of a sued party while a suit is pending or even after judgment.") (citing cases). The basic test under the misnomer rule is "whether it would be reasonable to conclude that plaintiff had in mind the proper entity or person, merely made a mistake as to the name, and actually served the entity or person intended; or whether the plaintiff actually meant to serve and sue a different person." Id. (emphasis added).
Moreover, in order for the amended complaint to relate back under FED. R. CIV. P. 15(c), the newly named parties must have "[known] or should have known that, but for a mistake concerning identity of the proper party, the action would have been brought against the party." FED. R. CIV. P. 15(c). See also Graves v. Gen. Ins. Corp., 412 F.2d 583, 584 (10th Cir. 1969) ("Corrections of misnomers are permitted under Rule 15(c)... [where] the plaintiff actually sued and served the correct party, the party he intended to sue, but mistakenly used the wrong name of defendant. The defendant, in these cases, of course, had notice of the suit within the statutory period and was not prejudiced by a technical change in the style of the action."). "The addition or substitution of parties who had no notice of the original action is not allowed." Id. at 585. In other words, "the misnomer provision applies only when the right defendant has been sued by the wrong name, not when the wrong defendant has been sued." Arendt v. Vetta Sports, Inc., 99 F.3d 231, 234 (7th Cir. 1996).
Defendants raise two objections to plaintiffs' motion to amend: (1) service of process, and (2) personal jurisdiction. I will address each in turn.
1. Service of the Original Complaint
On March 2, 2011, plaintiffs' counsel sent a copy of the pleadings to Day Pitney LLP with a Notice of Lawsuit and Request for Waiver of Service and Form for Waiver of Service of ...