SUMMARY

February 06, 2020

2020COA22

No. 19CA0033, Ruiz v. Chappell — Civil Procedure — Amended 

and Supplemental Pleadings — Relation Back of Amendments

Disagreeing with Lavarato v. Branney, 210 P.3d 485 (Colo. 

App. 2009), a division of the court of appeals adopts instead the 

rationale of Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010), 

for determining whether an amended complaint relates back to the 

filing of the original complaint under C.R.C.P. 15(c). The division 

reverses and remands the case for the district court to apply that 

rationale. On remand, the court must determine whether the newly 

named defendant knew or should have known that, if it were not for 

a mistake, the action would have been brought against her, and 

whether she received such notice of the commencement of the 

action that she will not be prejudiced in maintaining a defense on 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
the merits to the action. If those criteria are met, the court must 

reinstate the complaint against the newly named defendant.
COLORADO COURT OF APPEALS 2020COA22

Court of Appeals No. 19CA0033

Larimer County District Court No. 17CV31098

Honorable Gregory M. Lammons, Judge

Marissa Ruiz,

Plaintiff-Appellant,

v.

Rachel L. Chappell,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE 

REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE TERRY

Webb and Tow, JJ., concur

Announced February 6, 2020

Mintz Law Firm, LLC, Robin E. Scully, Lakewood, Colorado, for PlaintiffAppellant

Murphy & Decker, P.C., Daniel P. Murphy, David R. Anderson, Denver, 

Colorado, for Defendant-Appellee
1

¶ 1 In this premises liability suit, plaintiff, Marissa Ruiz, alleged

that she sustained injuries after she slipped and fell on ice on a 

walkway outside a 7-Eleven store. She appeals the district court’s 

order, which granted summary judgment for defendant, Rachel L. 

Chappell, on the basis that the statute of limitations had run on 

Ruiz’s claim. 

¶ 2 Ruiz had originally sued only 7-Eleven, Inc., and spent 

months negotiating with that company. But the record strongly 

suggests that she learned from the company’s motion for summary 

judgment — filed after the statute of limitations had expired — that 

7-Eleven had a franchise agreement with Chappell that made 

Chappell, as franchisee, solely responsible for maintaining the 

walkway outside the store. After the court granted summary 

judgment for 7-Eleven, Ruiz amended her complaint, naming 

Chappell as the sole defendant. In granting Chappell summary 

judgment on the amended complaint as time barred, the district 

court applied the rationale of Lavarato v. Branney, 210 P.3d 485 

(Colo. App. 2009), and ruled that Ruiz’s amended complaint naming 

Chappell did not relate back to the filing of her original complaint

under C.R.C.P. 15(c).
2

¶ 3 We conclude that the court should have instead applied the 

rationale of the United States Supreme Court in Krupski v. Costa 

Crociere S.p.A., 560 U.S. 538 (2010). That case addressed Fed. R. 

Civ. P. 15(c), the pertinent portion of which — though it contains 

slightly different wording — is functionally identical to the 

corresponding part of C.R.C.P. 15(c). Under the Supreme Court’s

rationale, the district court here should have looked at whether the 

proposed new defendant — Chappell — knew or should have known 

that, but for a mistake, the suit would have been brought against 

her. As a result, we reverse and remand for further proceedings.

I. Background

¶ 4 After Ruiz’s negotiations with 7-Eleven broke down, she filed a 

complaint against the company under the Colorado Premises 

Liability Act (PLA). 7-Eleven’s summary judgment motion argued

that it was not a landowner under the PLA because its franchise 

agreement allocated the responsibility for walkway maintenance to 

Chappell. In entering summary judgment, the court reasoned that 

because 7-Eleven did not have possession or control of the 

property, it was not liable under the PLA. Ruiz does not appeal this 

ruling.
3

¶ 5 Ruiz then filed an amended complaint naming Chappell as 

defendant, but Chappell moved to dismiss the action as time 

barred. The court converted Chappell’s motion to dismiss to a 

motion for summary judgment, which it granted, concluding that 

Ruiz’s amended complaint did not relate back to the date of the 

original complaint’s filing. This is the judgment that concerns us 

now.

¶ 6 Relying on Lavarato, the court said that this case does not 

involve “a simple misnomer or misidentification,” and concluded 

that Ruiz had not made a mistake that would allow her amended 

complaint to relate back to her original complaint under C.R.C.P. 

15(c). The court said that it appeared that after she had initiated 

her action against 7-Eleven, Ruiz discovered that another person 

might be liable for her injuries. 

II. Preservation and Standard of Review

¶ 7 Ruiz preserved the argument she now raises on appeal when 

she contended in the district court that, as applied to these facts, 

Lavarato could no longer be considered persuasive authority in light 

of the Supreme Court’s Krupski decision. 
4

¶ 8 Summary judgment is a drastic remedy and should only be 

granted when the pleadings and supporting documentation 

demonstrate that no genuine issue as to any material fact exists 

and the moving party is entitled to judgment as a matter of law. 

West Elk Ranch, L.L.C. v. United States, 65 P.3d 479, 481 (Colo. 

2002). We review the grant of summary judgment de novo. Id. The 

nonmoving party receives the benefit of all favorable inferences from 

the undisputed facts, and all doubts as to the existence of a triable 

issue of fact are resolved against the moving party. Id.

III. Analysis

A. We Adopt Krupski’s Rationale

¶ 9 Three requirements must be met for a claim in an amended 

complaint against a new party to relate back to the filing of the 

original complaint under C.R.C.P. 15(c): (1) the claim must have 

arisen out of the same conduct, transaction, or occurrence set forth 

in the original complaint; (2) the party to be brought in by 

amendment received such notice of the institution of the action that 

she will not be prejudiced in maintaining her defense on the merits;

and (3) the party to be brought in by amendment knew or should 

have known that, but for a mistake concerning the identity of the 
5

proper party, the action would have been brought against her. 

C.R.C.P. 15(c); see also Lavarato, 210 P.3d at 488. 

¶ 10 Our Colorado Rule 15(c) is consistent with Fed. R. Civ. P. 

15(c). Because our rule has substantially similar language to the 

federal rule, we consider federal cases interpreting the mistake-inidentity portion of the federal rule as persuasive in interpreting the 

corresponding part of our rule. See Lavarato, 210 P.3d at 488-89. 

¶ 11 We view the Supreme Court’s unanimous Krupski decision as 

well reasoned and influential in interpreting our own Rule 15(c). 

There, plaintiff Krupski filed a negligence complaint against Costa 

Cruise Lines for injuries she suffered on a cruise ship. Krupski, 

560 U.S. at 543. After the statute of limitations had run, Krupski 

was made aware that Costa Crociere was the proper defendant, and 

she amended the complaint to add that entity as a party. Id. at 

543-44. 

¶ 12 The Supreme Court reversed the summary judgment that had 

been entered against Krupski, reasoning that the relevant question 

under Fed. R. Civ. P. 15(c) is whether the proper entity knew or 

should have known that it would have been named as a defendant 

but for an error. Id. at 548. 
6

¶ 13 Therefore, the district court here had to determine whether 

Chappell knew or should have known that, absent some mistake, 

the action would have been brought against her. Id. at 548-49. 

¶ 14 As Krupski instructs, the district court should have first 

determined whether Ruiz made a deliberate choice to sue 7-Eleven 

rather than Chappell, while fully understanding the respective roles 

of the two. “[M]aking a deliberate choice to sue one party instead of 

another while fully understanding the factual and legal differences 

between the two parties is the antithesis of making a mistake 

concerning the proper party’s identity.” Id. at 549. If she did make 

such a deliberate choice, then judgment would have been properly 

entered against Ruiz. 

¶ 15 But if Ruiz did not make such a deliberate choice, then the 

court had to determine whether Chappell knew or should have 

known that, if it were not for a mistake, Ruiz’s action would have 

been brought against Chappell. And if the court were to find that 

Chappell did know, or should have known, that she would have 

been sued but for a mistake, then the court must determine 

whether Chappell received such notice of the commencement of the 
7

action that she will not be prejudiced in maintaining a defense on 

the merits of the action. See C.R.C.P. 15(c)(2).

¶ 16 We reject Chappell’s contention that because Ruiz did not 

know Chappell’s identity when she filed her original complaint, 

Krupski does not apply to her case and she is precluded from 

claiming that she made a “mistake” regarding the proper 

defendant’s identity. 

¶ 17 The Krupski Court addressed the issue of a plaintiff’s 

knowledge. The trial court in Krupski had concluded that because 

the plaintiff either knew or should have known of the proper party’s 

identity, she had made a deliberate choice instead of a mistake in 

not naming Costa Crociere as a party. 560 U.S. at 548. The 

Supreme Court rejected that notion, stating that by focusing on the 

plaintiff’s knowledge, the court “chose the wrong starting point.” Id. 

Instead, the focus is on whether the proposed new defendant knew 

or should have known that, “but for an error,” the suit would have 

been brought against the new defendant. Id. The Court further 

explained that “[i]nformation in the plaintiff’s possession is relevant 

only if it bears on the defendant’s understanding of whether the 
8

plaintiff made a mistake regarding the proper party’s identity.” Id.

(Emphasis added.)

¶ 18 We are persuaded by the Court’s reasoning in Krupski because

the language of Rule 15(c) focuses the inquiry on the proposed new

defendant’s knowledge, not the plaintiff’s knowledge. We therefore 

conclude that Ruiz’s lack of knowledge of the proper defendant’s 

identity would not preclude a finding of mistake that might allow 

her claim to proceed. 

B. “John Doe” Cases

¶ 19 In discussing knowledge of the proper party’s identity, 

Chappell cites a number of so-called “John Doe” cases, in which the 

plaintiff lacked knowledge of the name of the intended defendant, 

naming him as a party in the complaint under a fictitious name 

such as “John Doe.” In those cases, the majority of the federal 

circuit courts, including the Tenth Circuit, have held that where a 

plaintiff lacked knowledge of the intended defendant’s identity and 

failed to name him as a party in the complaint, naming him instead 

as “John Doe,” the plaintiff did not make a “mistake concerning the 

proper party’s identity” within the meaning of Fed. R. Civ. P. 15(c). 

See Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004); see also 
9

Heglund v. Aitkin County, 871 F.3d 572 (8th Cir. 2017); Smith v. 

City of Akron, 476 F. App’x 67, 69 (6th Cir. 2012); Wayne v. Jarvis, 

197 F.3d 1098, 1103 (11th Cir. 1999), overruled in part on other 

grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en 

banc); Jacobsen v. Osborne, 133 F.3d 315, 320-21 (5th Cir. 1998); 

Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 468-70 (2d Cir. 

1995), modified, 74 F.3d 1366 (2d Cir. 1996); Worthington v. Wilson, 

8 F.3d 1253, 1256-57 (7th Cir. 1993). But see Varlack v. SWC 

Caribbean, Inc., 550 F.2d 171, 175 (3d Cir. 1977) (concluding that 

the plaintiff could amend the complaint to name a defendant who 

was initially unnamed where the defendant testified that he knew 

that the complaint referred to him).

¶ 20 But those cases are inapposite to our facts. In the “John Doe”

cases, the plaintiffs did not know the proper defendant’s identity 

and intentionally failed to give the defendant’s true name in the 

complaint. The intentional misnaming of a party is by definition 

not a “mistake.” See Ceara v. Deacon, 916 F.3d 208, 213 (2d Cir. 

2019) (distinguishing Krupski — where the plaintiff made a mistake 

because she misunderstood crucial facts regarding the two 

companies’ identities — from “John Doe” cases where the plaintiff is 
10

unaware of the defendant’s true identity); Heglund, 871 F.3d at 

579-80 (highlighting that a “mistake” involves inadvertence or an 

unintentional error through lack of understanding, whereas “John 

Doe” cases involve an intentional misidentification). 

¶ 21 The “John Doe” cases, therefore, do not affect our ruling.

C. Lavarato

¶ 22 The district court was, of course, bound to apply Lavarato.

See C.A.R. 35(e). In adopting the Krupski Court’s rationale, rather 

than Lavarato’s, we do not intend to criticize the ultimate holding of 

the division in that case. The facts of Lavarato are distinguishable 

from those in this case. 

¶ 23 In Lavarato, the plaintiff filed a professional negligence 

complaint naming a doctor — Dr. Mann — as the sole defendant. 

210 P.3d at 487. After the statute of limitations had expired, the 

plaintiff amended his complaint to add a second doctor as a 

defendant — Dr. Branney — for separate conduct than that alleged 

against Dr. Mann. Id. The plaintiff said that he was unaware that 

he had a claim against Dr. Branney until after he had filed the 

original complaint. Id. at 489. 
11

¶ 24 On appeal, the division affirmed the district court’s dismissal 

of the plaintiff’s action, concluding that the amended complaint did 

not relate back to the original complaint because the plaintiff failed 

to meet the mistake requirement. Id. The division relied on federal 

case law interpreting Fed. R. Civ. P. 15(c) in holding that a plaintiff’s 

ignorance or misunderstanding about who is liable for her injury is 

not a “mistake” as to the defendant’s identity. Id. 

¶ 25 The division reasoned that the rule generally permits relation 

back in order to correct a misnomer where the proper party is 

already before the court and the effect is to merely correct the name 

under which the party is sued, and thus, the rule is meant to allow 

changes only where they result from an error such as misnomer or 

misidentification. Id. The division noted that “[a] plaintiff is 

responsible for determining who is liable for her injury and for 

doing so before the statute of limitations expires.” Id. And the 

division concluded that, because Dr. Branney had no reason to 

believe that the plaintiff did anything other than make a deliberate 

choice to sue one potential defendant, but not others, he could not 

have known that but for a mistake in identity, the action was 
12

intended to be brought against him. The plaintiff thus could not 

meet the tests of Rule 15(c). 

¶ 26 Lavarato distinguished its holding from our supreme court’s 

decision in Dillingham v. Greeley Publishing Co., 701 P.2d 27 (Colo. 

1985). In Dillingham, the plaintiff had filed a complaint against a 

corporation that had since been dissolved, intending to sue the 

owner of a newspaper. Id. at 31. When the plaintiff discovered that 

the named corporation had sold the newspaper, he moved to amend 

his complaint to substitute the correct corporate defendant. Id. 

The supreme court concluded that the plaintiff had shown a 

mistake as to the identity of the corporation and held that the 

district court should have granted the plaintiff’s motion to amend. 

Id. 

¶ 27 Lavarato noted that, unlike in Lavarato’s case, Dillingham 

“involved the substitution of the correctly named defendant for a 

misnamed defendant, and not the proposed addition of a 

defendant.” Lavarato, 210 P.3d at 489-90.

¶ 28 The Lavarato division said:

Here, Mr. Lavarato asserts only that he 

was unaware that he had a claim against Dr. 

Branney until after he filed the original 
13

complaint. He did not misname Dr. Branney 

or mistake his identity in the original 

complaint.

Furthermore, neither the original complaint 

nor the amended complaint gave Dr. Branney 

any reason to believe that, but for a mistake in 

identity, he would have been named as a 

defendant. The complaint plainly asserted a 

basis for a claim against Dr. Mann, as does the 

amended complaint. And, the complaint 

identified other doctors involved in the 

diagnosis and treatment of Mr. Lavarato’s 

condition. There was no reason for Dr. 

Branney to have believed that Mr. Lavarato did 

anything other than make a deliberate choice 

to sue one potential defendant, but not others, 

in initially suing only Dr. Mann. For this 

reason as well, the third requirement of Rule 

15(c) is not met.

Id. at 489.

¶ 29 Unlike this case, Lavarato involved a plaintiff who, only after 

the expiration of the statute of limitations, discovered that he had 

failed to name a second defendant against whom he also wanted to 

assert a claim, based on different actions and responsibilities than 

those of the doctor whom he had originally sued. 

¶ 30 Ruiz’s pleadings, however, show that she intended to bring her 

claim against the party responsible for maintaining the safety of the 

walkway outside the store, and appears to have initially believed 
14

that party was 7-Eleven. These circumstances make this case

similar to Dillingham, where the plaintiff substituted defendants. 

See Dillingham, 701 P.2d at 31.

¶ 31 Lavarato is also different from Krupski in that the Lavarato

division said that Dr. Branney had no reason to know that he would 

be named a defendant but for the plaintiff’s mistake. 210 P.3d at 

489. We therefore see no fundamental disagreement between our 

holding and Lavarato’s. 

¶ 32 But we disagree with Lavarato’s statement that a plaintiff’s 

“ignorance or misunderstanding about who is liable for her injury is 

not a ‘mistake’ as to the defendant’s identity.” 210 P.3d at 489. 

This statement is inconsistent with Krupski, see 560 U.S. at 548 

(focus is on the proposed new defendant’s knowledge, not on the 

plaintiff’s knowledge), and we are persuaded instead by the 

Supreme Court’s analysis on this point. See Warne v. Hall, 2016 

CO 50, ¶ 17 (recognizing benefit in interpreting similar state and 

federal procedural rules in a similar way).

IV. Conclusion

¶ 33 The judgment is reversed, and the case is remanded to the 

district court for further proceedings. On remand, the court must 
15

first determine whether Ruiz made a deliberate choice to sue 7-

Eleven rather than Chappell, while fully understanding the 

respective roles of the two; if that is the case, then that is the 

“antithesis of making a mistake concerning the proper party’s 

identity,” Krupski, 560 U.S. at 549, and the court must re-enter 

summary judgment for Chappell.

¶ 34 If that is not the case, then the court must determine whether, 

within the period provided by law for commencing the action under 

C.R.C.P. 4(m):

• Chappell knew or should have known that, if it were not 

for a mistake, Ruiz’s action would have been brought 

against Chappell, see C.R.C.P. 15(c)(2); and

• Chappell received such notice of the commencement of 

the action that she will not be prejudiced in maintaining 

a defense on the merits to the action, see C.R.C.P.

15(c)(1).

If the court determines that Chappell had such knowledge and will 

not be prejudiced by Ruiz’s delay, the court must reinstate Ruiz’s 

complaint against Chappell. If there are disputed issues of material 

facts on these matters, the court must allow limited discovery and a 
16

hearing on these issues before deciding whether to reinstate the 

complaint.

JUDGE WEBB and JUDGE TOW concur.