IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH COSTELLO, et al. : CIVIL ACTION

:

v. :

:

NOVARTIS PHARMACEUTICALS :

CORPORATION, et al. : NO. 05-3841

ORDER AND OPINION

JACOB P. HART DATE: November 8, 2005

UNITED STATES MAGISTRATE JUDGE

Defendant Novartis Pharmaceuticals Corporation (“NPC”) has filed a document

captioned Motion for Modification of October 11 Order. As explained below, I will grant this

motion in part and deny it in part, permitting NPC to file within two weeks of the date of this

order a motion challenging the Plaintiffs’ ability to meet the requirements of Fed. R. Civ. Pr.

15(c)(3).

I. Factual and Procedural Background

This case was removed from state court on July 25, 2005. Document No. 1 in the

computerized docket. It was assigned to the Honorable Marvin Katz. Originally, the complaint

named as a defendant Novartis Corporation, but not NPC. Id. On September 13, 2005, Novartis

Corporation filed a motion to dismiss for lack of jurisdiction, in which it argued that it was not

the correct corporate defendant. Documents No. 7 and 8. 

On September 10, 2005, Plaintiffs filed a response to the motion to dismiss, and at the

same time, filed a motion seeking leave to file an amended complaint. Documents Nos. 14, 15

and 16. In their proposed amended complaint, Plaintiffs replaced Novartis Corporation with 

NPC as a defendant. They also added a breach of consortium claim belonging to Mary Costello. 

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Documents No. 15 and 16. Plaintiffs argued in this motion that their amendments should relate

back to the original date the complaint was filed in the federal court, as permitted by Fed. R. Civ.

Pr. 15(c)(3).

Judge Katz ruled on the outstanding motions on October 11, 2005. In relevant part, he

wrote:

It is Ordered that Plaintiffs’ Motion for Leave to File an Amended Complaint is

Granted. Exhibit B to Plaintiffs’ Supporting Memorandum of Law [the proposed

amended complaint] shall be filed by the clerk as Plaintiffs’ Amended Complaint.

Document 17.

On October 25, 2005, this case was referred to the undersigned for all further proceedings

up to and including trial and the entry of judgment, as permitted by 28 U.S.C. § 636(c). 

Document 28. 

On the same day this case was referred to me, NPC filed this motion seeking clarification

of Judge Katz’s October 11, 2005, order. In that order, as set forth above, Judge Katz granted

Plaintiffs’ motion to file an amended complaint, seemingly without exception, but did not

mention the term “relation back.” NPC asks me to declare that there has been no ruling yet on

the “relation back” issue. NPC points out that it never had a chance to reply to Plaintiffs’ motion

to amend their complaint. 

NPC also asks that I defer any ruling on the “relation back” issue until the completion of

fact discovery. It points out that the “relation back” issue might affect its ability to raise a statute

of limitations defense. Specifically, if the claims do not relate back, NPC might be able to obtain

the dismissal of all counts against it by arguing that Plaintiffs’ statute of limitation expired before

October 11, 2005, when the amended complaint was deemed filed. On the other hand, 

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if the claims relate back to July 25, 2005, when the original federal complaint was filed, NPC

would have to show that the statute expired before that earlier date.

NPC explains that it cannot know whether it has a legitimate statute of limitations

defense without discovery. For that reason, it asks that no ruling be made on the issue “until [it]

has had the opportunity to take discovery and file a summary judgment motion on statute of

limitations grounds (if NPC decides that such a motion is warranted).”

II. Legal Standards

The federal rule regarding the relation back of amendments to a pleading reads as

follows:

An amendment of a pleading relates back to the date of the original pleading when

(1) relation back is permitted by the law that provides the statute of limitations

applicable to the action, or 

(2) the claim or defense asserted in the amended pleading arose out of the

conduct, transaction, or occurrence set forth or attempted to be set forth in the

original pleading, or 

(3) the amendment changes the party or the naming of the party against whom a

claim is asserted if the foregoing provision (2) is satisfied and, within the period

provided by Rule 4(m) for service of the summons and complaint, the party to be

brought in by amendment (A) has received such notice of the institution of action

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

(B) 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. Pr. 15(c).

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III. Discussion

The Fed. R. Civ. Pr. 15(c)(3) determination as to whether relation back is proper when a

new party is named in an amended pleading depends on factual findings designed to ensure that

the new party will not be prejudiced. In light of this, it is significant that NPC did not have the

opportunity to respond to Plaintiffs’ motion to amend. For this reason, and because Judge Katz

did not specify in his order whether the amendments were to relate back, I will permit NPC, in its

discretion, to file a motion challenging the application of Rule 15(c)(3) to Plaintiffs’ amended

complaint.

However, I will not defer a ruling on the issue. Clearly, no discovery is needed for NPC

to know whether it received proper notice, and whether it knew or should have known that it

would have been named as a party but for a mistake, as required by Rule 15(c)(3). Moreover, the

answers to these questions have no logical connection to the date Plaintiffs’ statute of limitations

began to run. NPC apparently links the issues only for its own convenience – it does not know

yet whether it is worth its while to challenge the amendment. Finally, NPC has cited no authority

in support of its request for a deferred ruling.

Plaintiffs, however, appropriately sought a ruling as to the “relation back” issue on

October 10, 2005, at the same time that they sought leave to file an amended complaint. They

are entitled to a prompt ruling. I see no reason to keep them in suspense. 

Accordingly, I now enter the following:

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O R D E R

AND NOW, this 8th day of November, 2005, upon consideration of Novartis

Pharmaceuticals Corporation’s Motion for Modification of October 11 Order, filed in this action

as Document No. 31, and Plaintiffs’ response thereto, it is hereby ORDERED that the motion is

GRANTED IN PART AND DENIED IN PART; 

1. The motion is GRANTED to the extent that Novartis Pharmaceuticals Corporation

may, within two weeks of the date of this Order, file a motion challenging the Plaintiffs’ ability

to meet the requirements of Fed. R. Civ. Pr. 15(c)(3) with respect to the filing of their Amended

Complaint. If no such motion is filed, the amendments made in Plaintiffs’ amended complaint

will be deemed to relate back to the date this case was originally filed in federal court; and it is

further ORDERED that

2. The motion is otherwise DENIED.

BY THE COURT:

___________________________________

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

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