UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN W. RENNIE, Husband; RUTH F.

RENNIE; CHARLES M. CROCKER,

Plaintiffs-Appellants,

v.

OMNIFLIGHT HELICOPTERS,

INCORPORATED,

Defendant-Appellee,

and

No. 97-1524

SCHWEIZER AIRCRAFT CORPORATION;

TEXTRON LYCOMING, a division of

AVCO Corporation; EXXON COMPANY,

USA, a division of Exxon

Corporation; QUALITRON AERO

SERVICES, INCORPORATED, d/b/a Avitat

Iah/Qualitron; OMNIFLIGHT AIRWAYS,

INCORPORATED,

Defendants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CA-96-450-WMN, CA-96-451-WMN)

Argued: March 4, 1998

Decided: October 23, 1998

Before LUTTIG and MICHAEL, Circuit Judges, and HILTON,

Chief United States District Judge for the

Eastern District of Virginia, sitting by designation.

_________________________________________________________________
Affirmed by unpublished opinion. Chief Judge Hilton wrote the opinion, in which Judge Luttig joined. Judge Michael wrote a dissenting

opinion.

_________________________________________________________________

COUNSEL

ARGUED: Noah Hy Kushlefsky, KREINDLER & KREINDLER,

New York, New York, for Appellants. David Lee Rutland, WHARTON, LEVIN, EHRMANTRAUT, KLEIN & NASH, Annapolis,

Maryland, for Appellee. ON BRIEF: Marc S. Moller, David L. Fiol,

KREINDLER & KREINDLER, New York, New York; Henry L. Belsky, SCHLACHMAN, BELSKY & WEINER, P.A., Baltimore,

Maryland, for Appellants. James T. Wharton, WHARTON, LEVIN,

EHRMANTRAUT, KLEIN & NASH, Annapolis, Maryland, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

HILTON, Chief District Judge:

This case is before the Court on the District Court's Order dismissing the Omniflight defendants on the grounds that the Amended Complaint was not timely filed. Finding no error, we affirm.

On October 18, 1992, Plaintiffs, John Rennie and Charles Crocker,

Baltimore City Police Officers acting in the line of duty, were seriously injured when the engine failed in the helicopter in which they

were flying. On October 6, 1995, within three years of the crash,

Plaintiffs sued Helicopter Transport Services, Inc. ("HTS") in the Circuit Court for the City of Baltimore for negligent maintenance of the

helicopter. Plaintiffs also sued the manufacturer of the helicopter.

 2
At the time of the crash, Omniflight Helicopters, Inc.

("Omniflight"), had an agreement with the Baltimore City Police

Department to maintain and service the police helicopters. Omniflight

maintained a facility at Hanger 6, Martin State Airport in Baltimore.

At the time the lawsuit was filed, HTS was operating out of that facility.

The Plaintiffs filed their Complaint in state court and identified

HTS as "Helicopter Transport Services, Inc. formerly known as

Omniflight Helicopters, Inc. and Omniflight Airways, Inc." On

November 13, 1995, process was served on HTS in Maryland, and

was served on HTS on December 4, 1995, at Omniflight's offices in

Dallas, Texas.

In response to the earlier service in Maryland, HTS filed a motion

to dismiss on the ground that it did not exist at the time of the accident. HTS argues that it could not be held liable as a successor corporation because it was a separate and distinct corporation. Omniflight

continued to exist after HTS took over some of Omniflight's contracts, including the contract with the City of Baltimore. Plaintiffs

agreed to dismiss the claim against HTS.

On January 29, 1996, Plaintiffs filed amended complaints and

explicitly included Omniflight as a party to the lawsuits. The helicopter manufacturers removed the cases to federal court and the cases

were consolidated. Omniflight then moved to dismiss the complaint

on the grounds that it was untimely under the Maryland three year

statute of limitations.

On April 9, 1997, the United States District Court for the District

of Maryland dismissed the Omniflight defendants from the case on

the basis that the amended complaint was barred by the statute of limitations.

The rule which governs resolution of this case is Fed.R.Civ.P.

15(c) which provides the circumstances under which an amended

pleading will be found to relate back to the date of the initial pleading.

The first requirement is that the claim in the amended pleading arise

out of the same transaction or occurrence as the original claim.

Fed.R.Civ.P. 15(c)(2). As both the original and amended complaints

 3
arise out of the same accident, this requirement is not in dispute in

this appeal.

In the case of an amendment which changes the party or the naming of a party, Rule 15 imposes further constraints. It requires that the

party brought in by amendment has received such notice of the claim

within 120 days of filing of the initial complaint, that the party will

not be prejudiced in maintaining a defense on the merits, and that the

party "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." Fed.R.Civ.P. 15(c)(3).

The fact that the process was addressed to HTS "formerly known

as Omniflight" was sufficient to place Omniflight on notice that it

might be named as a defendant in the lawsuit. Omniflight did not

argue that it would be prejudiced in maintaining a defense on the merits. Therefore, the Rule 15 requirement that must be examined more

closely is whether Omniflight should have known that, but for a mistake concerning the identity of the proper party, the action would have

been brought against them. See Fed.R.Civ.P. 15(c)(3).

Plaintiffs contend that Omniflight knew that it, not HTS, was the

company with the maintenance contract with the City of Baltimore.

However, Plaintiffs knew that Omniflight was the party that contracted to maintain the helicopters. The fact that Plaintiffs thought that

HTS was successor in interest to Omniflight does not satisfy the

requirements of Rule 15. Therefore, the naming of HTS in the original complaint was a misjoinder, not merely a misnomer. See

Archuleta v. Duffy's, Inc., 471 F.2d 33, 35 (10th Cir. 1973).

This Court in Western Contracting Corp. v. Bechtel Corp., 885

F.2d 1196 (4th Cir. 1989), looked at the issue of relation back under

Rule 15 and quoted from Wood v. Worachek. 618 F.2d 1225, 1230

(7th Cir. 1980). This Court found that an amendment is permitted to

relate back only where an error was made concerning the identity of

the proper party and where that party is chargeable with knowledge

of the mistake. This Court, however, does not permit relation back

where there is a lack of knowledge of the proper party.

The Seventh Circuit in Wood found that an amendment with relation back is permitted in order to correct a misnomer of a defendant

 4
if the proper defendant is already before the court and the effect is to

correct the name under which he is sued. However, a new defendant

cannot be substituted or added by amendment after the statute of limitations has run. Rule 15(c)(3) permits an amendment to relate back

only where there has been an error made concerning the identity of

the proper party, and where that party is not chargeable with knowledge of the mistake. Rule 15(c)(3) does not permit relation back

where there is a lack of knowledge of the proper party. In the absence

of a mistake in the identification of the proper party, it is irrelevant

for the purpose of Rule 15(c)(3) whether or not the purported substitute party knew or should have known that the action would have

been brought against him.

There is relation back where a plaintiff has misnamed the party the

plaintiff actually intended to sue who is already part of the lawsuit,

but not where the plaintiff was simply wrong about who the plaintiff

wanted to sue. In this case, Plaintiffs made an actual mistake as to the

party they wanted to sue. Plaintiffs intended to sue HTS because they

believed HTS was the corporate successor to the party which was

responsible for maintenance of the Baltimore City Police helicopters

at the time of the 1992 crash. However, Plaintiffs were wrong as to

who was the proper party. The remedy provided by Rule 15 does not

cover this mistake.

The trial court was correct in ruling that Plaintiffs did not make a

mistake concerning the identity of Omniflight within the contemplation of Fed.R.Civ.P. 15(c) because Plaintiffs were aware that Omniflight was the corporation that performed the allegedly negligent

repairs. Therefore, the district court correctly held that this was not a

case of misnomer and the case did not meet the standards for relation

back under Rule 15. Accordingly, the judgment of the district court

is

AFFIRMED.

MICHAEL, Circuit Judge, dissenting:

I dissent. The allegations of the complaints are directed at the company that was responsible for the maintenance of the helicopter at the

time of the crash, and, on their face, they unmistakably reveal that the

 5
plaintiffs believed that this company had simply changed its name

from Omniflight to HTS. Omniflight received notice of the complaints within the 120-day period allotted by Rule 4(m); indeed, it

received actual service of process. Moreover, it could not have helped

but know that HTS's naming was a mistake, that the mistake resulted

from the plaintiffs' belief that Omniflight had renamed itself, and that

the plaintiffs would surely have brought the case against Omniflight

had they not been mistaken. Under these circumstances, Rule 15(c)(3)

commands that the amendment of the complaints relate back to the

date the suit was originally filed.

I.

The Federal Rules reject the approach that pleading is a

game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose

of pleading is to facilitate a proper decision on the merits.

Conley v. Gibson, 355 U.S. 41, 48 (1957). To this end, Rule 8(f) commands that "[a]ll pleadings shall be so construed as to do substantial

justice."

We need not even resort to Rule 8(f) here, inasmuch as the cause

for and character of the plaintiffs' mistake is plain for all to see. The

majority quotes from the caption of the complaints, which defined the

defendant as HTS, "formerly known as" Omniflight. In my view, this

caption alone reveals a belief that HTS was simply a renamed Omniflight. But there is much more in the body of the complaints to the

same effect. I quote from the Rennie complaint (emphasis added):

 2. Helicopter Transport Services, Inc., and its predecessor companies Omniflight Helicopters, Inc. and Omniflight

Airways, Inc., is a Delaware corporation which has offices

and does business in the State of Maryland ....

* * *

 8. Helicopter Transport Services, Inc., and/or its predecessor companies Omniflight Airways, Inc. and Omni-

 6
flight Helicopters, Inc., ... negligently [serviced the

helicopter]; and Omniflight Helicopters, Inc. was otherwise

negligent.

* * *

 33. The subject engine and subject helicopter were

being maintained and serviced by defendant Helicopter

Transport Services, Inc., when it was known as Omniflight

Helicopters, Inc. and Omniflight Airways, Inc. under a service contract between Helicopter Transport Services and

Baltimore Police Department ....

The Crocker complaint contains identical assertions. Any reasonable reader of the complaints would understand that the plaintiffs did

not choose to sue HTS instead of Omniflight on account of some legal

judgment about their relative liability. Had they, I would agree that

Rule 15(c)(3) would not permit relation back. See Rendall-Speranza

v. Nassim, 107 F.3d 913, 918 (D.C. Cir. 1997) ("Nothing in the Rule

or in the Notes indicates that the provision applies to a plaintiff who

was fully aware of a potential defendant's identity but not of its

responsibility for the harm alleged."). Instead, the plaintiffs believed

that by suing HTS they were suing the same entity that had once been

Omniflight. They were wrong, of course, and the nature of their mistake is the key to this case. To my mind, the mistake can only be one

of identity. "Identity" is, among other things, "[t]he quality or condition of being the same as something else."1 The plaintiffs thought that

HTS was the same as Omniflight, but it was not; they therefore made

a mistake about "identity."

II.

The majority asserts that "[t]here is relation back where a plaintiff

has misnamed the party the plaintiff actually intended to sue who is

already part of the lawsuit, but not where the plaintiff was simply

wrong about who the plaintiff wanted to sue." Ante at 5. The first half

of the sentence is an understatement that is true as far as it goes. The

_________________________________________________________________

1 Webster's II New Riverside University Dictionary 607 (1988).

 7
second half is an overstatement that may or may not be true depending on the result of the analysis actually called for by the Rule.

Rule 15(c)(3) will never come into play unless the plaintiff was

"simply wrong" about the party or the name of the party it wished to

sue. The issue is not whether the plaintiff was "simply wrong," but

why. If the error was one of the defendant's identity, the Rule may

permit relation back. Otherwise, it does not.

I labeled the first half of the majority's proposition of law an

understatement because it implies that Rule 15(c)(3) corrects only

classic misnomers, e.g., if the plaintiffs here had sued Omniflight only

to find that it had indeed changed its name to HTS. The Rule is far

broader than that. If its notice requirements are satisfied, it permits

relation back where "the amendment changes the party or the naming

of the party against whom a claim is asserted[.]" (emphasis added).

Of course, where the mistake is simply a misnomer, the notice

requirements will usually be satisfied. However, for more substantial

misidentifications, notice may be problematic. Nevertheless, the issue

is always notice to the party intended to be sued, Schiavone v.

Fortune, 477 U.S. 21, 31 (1986), and not whether the amendment

adds the party or simply corrects its name.

III.

Omniflight also asserts that the plaintiffs' investigation of the

proper entity to sue was unduly cursory, and any reasonable investigation would have revealed that it continued to exist and had not

changed its name to HTS. Rule 15(c)(3) could well have been written

to permit amendments to relate back or not depending on the plaintiff's diligence or negligence. It was not so written. "The linchpin [of

the Rule] is notice," Schiavone at 31, and the adequacy of notice is

defined from the defendant's perspective. The defendant must know,

within the time allotted for service of process, enough about the case

so as not to be prejudiced in its defense, and it must or should know

that "but for a mistake concerning the identity of the proper party, the

action would have been brought against [it]." Fed. R. Civ. P. 15(c)(3).

Omniflight surely knew that much here, however avoidable might

have been the mistake concerning its identity. It should therefore be

required to defend the suit on the merits, not because the plaintiffs'

 8
mistake was excusable, but rather because the mistake was of no

consequence given the function of the pleading. The complaint

apprised Omniflight that it was the intended defendant; the complaint

thus served its purpose.

A suit at law is not a children's game, but a serious effort

on the part of adult human beings to administer justice; and

the purpose of process is to bring parties into court. If it

names them in such terms that every intelligent person

understands what is meant, as is the case here, it has fulfilled its purpose; and courts should not put themselves in

the position of failing to recognize what is apparent to

everyone else.

United States v. A. H. Fischer Lumber Co., 162 F.2d 872, 873 (4th

Cir. 1947).

We should be especially mindful of avoiding the"`sporting theory

of justice'"2 we criticized in the above passage where Rule 15(c)(3)

is applied to corporations. The corporate form is easy to use and easy

to abuse. Like natural persons, corporations come into and go out of

existence. Unlike natural persons, corporations can also merge and

split. They can buy, sell, own, and even consume one another. They

can be renamed or reincarnated. A given business may consist of one

or dozens of individual corporations depending on its owners' strategies and whims, and its structure may not be readily apparent to the

public or even to its own employees.

Here, the record reveals that HTS's current Chief Operating Officer

and Executive Vice-President, Michael Aslaksen, was in charge of the

Aviation Services Division of Omniflight when it operated out of the

Baltimore hangar and was also the person to whom notices were sent

on behalf of a partnership that briefly held title to Omniflight's Maryland assets. My point is not to suggest anything improper about

HTS's acquisition of those assets, but rather to illustrate that even

after the most complex metamorphoses of those legal abstractions we

_________________________________________________________________

2 Schiavone, 477 U.S. 32-33 (Stevens, J. dissenting) (quoting Roscoe

Pound, The Causes of Popular Dissatisfaction with the Administration of

Justice, 29 A.B.A. Rep. 395, 404-405 (1906)).

 9
call corporations, the human faces one encounters at a place of business can remain very much the same. There may be no remarkable

difference between today and 1992 at the Baltimore hangar except the

name on the wall.

IV.

Omniflight has dodged this lawsuit for no just reason. It was fully

and timely apprised of the plaintiffs' claims and of its alleged liability

for them. It surely knew that HTS had been sued because of confusion

with, rather than in distinction to, Omniflight. It surely knew that,

absent the plaintiffs' confusion, it, and not HTS, would have been

named the defendant.

The purpose of the Federal Rules of Civil Procedure is to make

procedure the servant of justice. This purpose is not served by today's

decision.

I would reverse the judgment of the district court.

 10