UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DENISE DESANCTIS,

Plaintiff-Appellant,

v. No. 95-2403

MYRTLE HASTINGS,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Edward S. Northrop, Senior District Judge.

(CA-95-73-N)

Submitted: December 31, 1996

Decided: January 13, 1997

Before HALL, ERVIN, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joseph F. Schanno, MCINTOSH & SCHANNO, P.A., Berlin, Maryland, for Appellant.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Denise DeSanctis appeals the district court's order denying her

motion to reconsider the court's denial of her motion to amend her

complaint. Finding no abuse of discretion, we affirm.

DeSanctis, a Virginia resident, filed a civil action on January 10,

1995, against Myrtle Hastings, a Maryland resident, alleging diversity

jurisdiction and seeking damages of $150,000. DeSanctis claimed that

she and Hastings were involved in an automobile accident on January

13, 1992, and that Hastings was negligent. DeSanctis obtained a summons on January 11, 1995, and attempted to serve Hastings. DeSanctis discovered, however, that Hastings had died on January 3, 1994.

DeSanctis filed a motion to amend her complaint under Rules 17 and

25 of the Federal Rules of Civil Procedure to substitute Hastings'

estate as defendant and to then require service on the estate's

representatives--Hastings' two children.

The district court denied the motion to amend and dismissed the

complaint. DeSanctis filed a motion to reconsider the court's dismissal, contending that she should have been permitted to amend her

complaint and substitute the estate for Hastings under Fed. R. Civ. P.

15(c). The district court denied DeSanctis' motion for reconsideration, finding that she provided no evidence establishing she was a

creditor or interested person or that Hastings' personal representatives

were obligated to notify her of Hastings' death. This appeal followed.

On appeal, DeSanctis challenges the district court's denial of her

motion for reconsideration. We construe the motion as filed under

Fed. R. Civ. P. 59(e), because it was filed within ten days of the entry

of the underlying judgment. See Fed. R. Civ. P. 59(e). We review the

denial of a Rule 59(e) motion for an abuse of discretion. Collison v.

International Chem. Workers Union, 34 F.3d 233, 236 (4th Cir.

1994).

We find no abuse of discretion in this case. DeSanctis correctly

notes that federal courts apply state substantive law and federal proce-

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dural law--including Fed. R. Civ. P. 15(c)--in diversity cases. See

Hottle v. Beech Aircraft Corp., 47 F.3d 106, 109 (4th Cir. 1995);

Davis v. Piper Aircraft Corp., 615 F.2d 606, 611-12 (4th Cir. 1980).

Rule 15(c) provides that

[a]n amendment of a pleading relates back to the date of the

original pleading when . . . the amendment changes the

party or the naming of the party against whom a claim is

asserted if [the claim or defense arose out of the conduct,

transaction, or occurrence set forth in the original pleading]

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 the 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. P. 15(c)(3).

It is undisputed that the case against the estate arose out of the

same occurrence as the case against Hastings. DeSanctis fails to meet

the requirements of Rule 15(c), however, in that the personal representatives of Hastings' estate she seeks to substitute for Hastings did

not receive notice or possess knowledge of the action within the time

for service--120 days after filing of the complaint--as evidenced by

the district court's order to show cause why the case should not be

dismissed for failure to serve. Without service, the estate's representatives could not have been aware of the suit within 120 days of the filing of the complaint.* By the express terms of Rule 15(c), therefore,

the amendment for which DeSanctis moves cannot relate back to the

filing of the complaint, and the action against the estate cannot

thereby be brought within the statute of limitations. The statute of

limitations expired three days after DeSanctis filed the complaint.

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*Although the district court denied the motion to amend because the

estate did not have notice of the action within the limitations period, the

standard before the 1991 amendment to Rule 15(c), we find the error

harmless.

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Because the district court properly denied DeSanctis' motion to

amend her complaint, the court did not abuse its discretion in denying

her motion for reconsideration.

DeSanctis, however, urges this Court not to bar her from relief in

federal court where she could obtain relief in state court under

Greentree v. Fertitta, 659 A.2d 1325 (Md. 1995)--a case decided one

day after the district court denied her motion for reconsideration.

Because Rule 15(c) of the Federal Rules of Civil Procedure controls,

we reject this argument. See Hottle, 47 F.3d at 109; Davis, 615 F.2d

at 611-12.

Accordingly, we affirm the district court's order denying DeSanctis' Rule 59(e) motion. We grant DeSanctis' motion to waive oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the

decisional process.

AFFIRMED

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