Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED APRIL 25, 2007 BUDDY MILLER, II, Plaintiff-Appellant,

v No. 130808 CHAPMAN CONTRACTING, RAMZY KIZY, JR., KEVIN R. PAPERD, and SWEEPMASTER, INC., Defendants-Appellees.

___________________ _______________ BEFORE THE ENTIRE BENCH PER CURIAM. In this case, plaintiff’s attorney erroneously named plaintiff, instead of his bankruptcy trustee, as the plaintiff in this lawsuit. After the period of limitations expired, defendants moved to dismiss the case, pointing out th e failure to name plaintiff’s bankruptcy trustee in the lawsu it. Plaintiff filed a motion to amend the complaint to substitute the bankruptcy trustee as pl aintiff, but the trial court dismissed the lawsuit. The Court of Ap peals affirmed. We likewise affirm. MCR 7.302(G)(1). In doing so, we adopt as our own the following unpublished opinion per curiam of the Court of Appeals, issued February 16, 2006 (Docket No. 256676).Plaintiff appeals as of right from the trial court order denying his motion to amend hi s complaint and granti ng defendants’ motion for summary disposition pursuant to MCR 2.116(C)(5 ) based on lack of standing. We affirm. This app eal is being deci ded without oral argument pursuant to MCR 7.214(E). Plaintiff’s complaint alleged that on December 28, 2000, defendant Kevin Paperd was opera ting an automobile that was owned by one or more of the remaining defendants when he negligently struck plaintiff’s ve hicle, causing plaintiff to suffer a serious impairment of an import ant body function and/or serious permanent disfiguremen t. Defendants sought summary disposition pursuant to MCR 2.116(C)(5), conten ding that plaintiff was not the real party in interest and lacked sta nding to sue. Defendants alleged that plaintiff had filed a petition for bankruptcy und er Chapter 7 of the United States Bankru ptcy Code [11 USC 701 et seq. ] on March 6, 2002, and that all of plaintiff’s rights regarding the December 28, 2000, accident were therefore transferred to the bankruptcy trustee, who was the sole party who could pursue the lawsuit. In response, plaintiff filed a motion for leave to file an amended complaint in order to correct the “misidentification” of the named plaintiff. Plaintiff stat ed that Wendy Turner Lewis, the trustee for his bankruptcy estate, had authorized plaintiff’s counsel to file a complaint on behalf of the ba nkruptcy estate, and that counsel, through no fault of plaintiff or Lewis, had misidentified the plaintiff. The trial court entered an orde r denying as futile plaintiff’s motion to amend and granting d efendants’ motion for summary disposition, stating: “There is no dispute the real part y in interest is the bankruptcy trustee, not Plaintiff. Thus, the issue is whether Plaintiff should be granted leave to amend to add the bankruptcy trustee. “Under MCR 2.118(A)(2), leave to amend pleadings should be freely given when justice so re quires. Leave to amend should be denied only for particularized reas ons, such as undue delay, bad faith or dilatory motive on the movant’s part, repeated failure to cure deficiencies by amendmen t previously a llowed, undue prejudice to the opposing party, or where amendm ent would be futile. Ben [P]Fyke & Sons v Gunter [ Co ], 390 Mich 649; 213 NW2d 134 (1973). In [ Employers Mut Cas Co v Petroleum

2Equipment, Inc , 190 Mich App 57, 63; 475 NW2d 418 (1991)], the court held that ‘Althou gh an amendment genera lly relates back to the date of the original filing if the new claim asserted arises out of the conduct, transacti on, or occurrence set fo rth in the original pleading, MCR 2.118(D), the relati on-back doctrine does not extend to the addition of new parties.’ “The court is satisfied that b ecause the bankruptcy trustee was the real party in interest prior to the filing of th e Complaint, this is a motion to add a party and is not merely a request to correct a misnomer. Thus, the court finds th at based on the binding precedent in Employers , the amendment would be fu tile as the addition of the new party cannot relate back to the original Complaint.” MCR 2.201(B) provides that, generally, “[a]n action must be prosecuted in the name of the real party in interest . . . .” “A real party in interest is one who is ve sted with the right of action on a given claim, although th e beneficial interest may be in another.” Blue Cross & Blue Shi eld of Michigan v Ea ton Rapids Comm Hosp , 221 Mich App 301, 31 1; 561 NW2d 488 (199 7). “This standing doctrine recognizes that litigation should be begun only by a party having an interest that will assure sincere and vigorous advocacy.” [City of] Kalamazoo v Ri chland Twp , 221 Mich App 531, 534; 562 NW2d 237 (1997). It is undisputed that the bankruptcy trustee is the real party in interest and that she should have been named as the plaintiff. 1 MCR 2.118(A)(2) provides that leave to amend a pleading “shall be freely given when justice so requires.” But “leave to amend a complaint may be denied for particularized reasons, such as . . . where amendment would be futile.” Hakari v Ski Brule, Inc , 230 Mich App 352, 355; 584 NW2d 345 (1998). MCR 2.118(D) provides: “An amendment that adds a claim or a defense relates back to the date of the original pleading if 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.” However, “[t]he relation- back doctrine does not apply to the addition of new parties.” Cowles v Bank West , 263 Mich App 213, 229; 687

3___________________ _______________ ____________ _________

___________________ _______________ _____________________ NW2d 603 (2004)[ aff’d in part, vacated in part, and remanded 476 Mich 1 (2006)]; see also Employers Mutual, supra at 63. Plaintiff contends, nevertheless, that the requested amendment would do no more than correct a misnomer and that the Employers Mutual rule therefore does not bar the am endment and its relation back. “‘As a general rule, . . . a misnomer of a plaintiff or defendant is amendable unless the am endment is such as to effect an entire change of parties.’” Parke, Davis & Co v Grand Trunk Ry System , 207 Mich 388, 391; 174 NW 1 45 (1919) (citation omitted). The misnomer doctrine applies onl y to correct in consequential deficiencies or technicalities in th e naming of parties, for example, “‘[w]here the right corporation has been sued by the wrong name, and service has been made upon the right party, although by a wrong name . . . .’” Wells v Detroit News, Inc , 360 Mich 634, 641; 104 NW2d 767 (1960), quoting Daly v Blair , 183 Mich 351, 353; 150 NW 134 (1914); see also Detroit Independent Sprinkler Co v Plywood Products Corp , 311 Mich 226, 232; 18 NW2d 387 (1945) (allowing an amendmen t to correct the designation of the named plaintiff from “corporation” to “partnership”)[,] and Stever v Brown , 119 Mich 196; 77 NW 704 (1899) (holding that an amendment to substitute the plaintiffs’ full na mes where their first and middle names had been reduced to initials in the orig inal complaint would have been permissible). Where, as here, the plaintiff seeks to substitute or add a wholly new and different party to the proceedings, the misnomer doctri ne is inapplicable. See Voigt Brewery Co v Pacifico , 139 Mich 284, 286; 102 NW 739 (1905); Rheaume v Vandenberg , 232 Mich App 417, 423 n 2; 591 NW2d 331 (1998).

1 See 11 USC 541; 11 USC 323;[ In re Cottrell ], 876 F2d 540 (CA 6, 1989)

.
Moreover, this Court adds that MCR 2. 118(D) specifies th at an amendment relates back to the date of the original plead ing only if it “adds a claim or a defense”; it does not specify that an amendment to ad d a new party also relates

4_____________ ____________ back to the date of the original pleading. 1 Consequently, the Court of Appeals correctly affirmed the judgment of the trial court that the amendment to substitute plaintiff’s bankruptcy trustee as plain tiff after the expiration of the period of limitations would be futile. Therefore, the decision of the Court of Appeals is affirmed. Clifford W. Taylor Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

1 Justice Kelly contends that, because MCR 2.118(D) does not specifically forbid an amendment to add a new party to relate back, this Court may rely on the “purpose” and “basic policy” of the rel ation-back rule and the statute of limitations. This overlooks, however, that the “purpose” and “basic policy” of a court rule, as with other expressions of the law, are normally communicated by their language. In particul ar, it has been long understood that the expression of specific exceptions to the application of a law, as here, implies that there are no other exceptions. See Hoerstman General Contracting, Inc v Hahn , 474 Mich 66, 74 n 8; 711 NW2d 340 (2006) (s tating the interpretative rule expressio unius est exclusio alterius , i.e., “the expression of one thing is the exclusion of another”). Moreover, Justice Kelly’s assertion that this Court is “allow[ing] gamesmanship to take precedence over th e orderly disposition of an injured party’s cause of action,” post at 1, simply ignores that defendants in their answer to plaintiff’s complaint provi ded plaintiff with notice of the defect th at the wrong plaintiff had been named 12 days before the period of li mitations expired. Justice Kelly’s appeal to FR Civ P 15(c) is also inapposite, because th e language of the federal rule is altogether different from MC R 2.118(D). The current federal rule allows for the relatio n back of amendments to add a party “against whom a claim is asserted,” whereas MCR 2. 118(D) does not. Although Justice Kelly also cites the 1937 version of FR Civ P 15(c), that version allowe d an amendment to relate back “[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence” in the original pleading. In contrast, MCR 2.118(D) only allows an amendmen t to relate back if the amendment “ adds a claim or a defense.” (Emphasis added. ) Justice Kelly ignores this dispositive difference.

5v S T A T E O F M I C H I G A N SUPREME COURT

BUDDY MILLER, II, Plaintiff-Appellant,
No. 130808 CHAPMAN CONTRACTING, RAMZY KIZY, JR., KEVIN R. PAPERD, and SWEEPMASTER, INC., Defendants-Appellees.

WEAVER, J. ( dissenting ). I would deny leave to app eal in this case because to do otherwise would create an injustice. I believe that the bankruptcy trustee in this case is not a “new party” in the sense of “another party” being added by am endment of the compla int. Rather, the amendment in this case si mply involves replacing the wrongly named plaintiff, “Buddy Miller,” with the correct name of Buddy Miller’s bankruptcy trustee, “Wendy Turner Lewis.” As a result, an y caselaw discussing whether the relation

back doctrine applies to a dding plaintiffs to a suit is immaterial because a new plaintiff is not being added. The Michigan Court Rule s do not address the pr otocol for addition of parties to a suit. This Cour t has opened an administrativ e file to consider whetherwe should adopt, or not adopt, a rule amending the Michigan Court Rules to govern the addition of a p arty to a suit. Elizabeth A. Weaver

2v S T A T E O F M I C H I G A N SUPREME COURT

BUDDY MILLER, II, Plaintiff-Appellant,
No. 130808 CHAPMAN CONTRACTING, RAMZY KIZY, JR., KEVIN R. PAPERD, and SWEEPMASTER, INC., Defendants-Appellees.

KELLY, J. ( dissenting ). A majority of the Court has affirmed th e dismissal of this suit on the basis of a contrived legal technicality. It has misread MCR 2.11 8. In extinguishing the valid claim, it has allowed gamesmanship to take precedence over the orderly disposition of an injured part y’s cause of action. The re sult is sad. I respectfully dissent and would reverse the lower co urts’ judgments, allow trustee Wendy Turner Lewis to be substituted as the pa rty plaintiff, and enable the case to proceed to trial.
F ACTS Plaintiff Buddy Miller, II, was injure d when the automob ile in which he was traveling was struck by another driven by defendant Kevin R. Paperd. The vehicle that Paperd was operating was owned by one or more of the other defendants. On March 6, 2002, plainti ff filed a voluntary petition for personalbankruptcy under Chapter 7 of the Bankruptcy Code. 11 USC 701 et seq . Lewis was appointed trustee of plai ntiff’s estate and all of pl aintiff’s rights regarding the accident were transferred to her. Lewis retained an attorney to bring suit to recover the damages that plaintiff sustai ned from the accident. On October 22, 2003, a lawsuit was filed. Service of the lawsuit on defendants was timely. However, the complaint identified Miller as the party plaintiff. Trustee Lewis should have been the named plaintiff. In an affidavit, Lewis’s a ttorney has taken full responsibility for the

error. On December 16, 2003, few er than two weeks befo re the statutory period of limitations expired, defendants answered the complaint. They specifically raised as an affirmative defense that plaintiff Miller lacked standing to bring suit against defendants because trustee Lewis wa s the real party in in terest. After the limitations period expired, defendants file d a motion for summary disposition. In response, plaintiff Miller sought to amen d the complaint to substitute trustee Lewis as the party plaintiff. The circuit court denied the motion to amend and granted defendants’ motion for summary disposition. The court found that it would be futile to allow the complaint to be amended, because the limitations period had run. It ruled that the needed amendment would not relate back to the date of the filing of the complaint. The Court of Appeals affirmed the judg ment in an unpublished

2_____________ ____________ opinion per curiam, issued February 16, 200 6 (Docket No. 256676 ). The majority has adopted the opinion as its own.
A NALYSIS It is undisputed that it would be futile to allow the subs titution of Lewis for Miller unless the amendment related back to th e date of the filing of the complaint. Thus, the issue that controls the resolutio n of this case is whether relation back applies to an amendment that substitutes a pa rty plaintiff. A majo rity of this Court has decided that it does not. This is an erroneous decision, one that allows a miscarriage of jus tice to go uncorrected. 1 As Justice Hugo Black of the United States Supreme Court has obs erved, the “‘principal func tion of procedural rules should be to serve as usefu l guides to help, not hinder, persons who have a legal right to bring their proble ms before the courts.’” Schiavone v Fortune , 477 US 21, 27; 106 S Ct 2379; 91 L Ed 2d 18 (1986), quoting ord er adopting revised rules of the Supreme Court, 346 US 945, 946 (1954).

1 The Michigan Court Rule s provide at MCR 1.105 th at the “rules are to be construed to secure the just . . . determ ination of every action and to avoid the consequences of error that does not affect th e substantial rights of the parties.” The result reached in th is case is anything but just. In their answer, defendants stated that the trustee, not Miller, was the real party in interest. This is proof that they had full notice of the proper party pl aintiff before the limitations period ran. Yet, defendants waited until after the period of limitations had expired to bring their motion for summary disposition. Alt hough this proved an effective strategy, it illuminates what is wrong with the majo rity’s decision. By allowing defendants to prevail with a statute of limitations de fense, this Court has elevated the skill level of defendant’s counsel over the pursuit of justice.

3MCR 2.118 MCR 2.118 is the court rule that deals with amendmen ts of pleadings. In relevant part, it provides: (A) Amendments.
* * * (2) Except as provided in subr ule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freel y given when justice so requires. The court rules make no mention of wh ether a substitution of parties relates back to the date the original complaint was filed. The majority’s chief reliance for its finding that the court rules do not perm it a substitution of par ties to relate back is MCR 2.118(D). It reads: Relation Back of Amendments. An amendment that adds a claim or a defense relates back to th e date of the original pleading if the claim or defense asserted in the amended pleadi ng arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading. But MCR 2.118(D) applie s only to amendments that add a claim or defense. The amendment in this case does neither. Th e original complain t asserted a claim arising from Buddy Miller’s automobile accident. Had the substitution that plaintiff requested been allo wed, the complaint would have continued to assert the same claim, no other. No t only would no claim or d efense have been added, no party would have be en added. Before the ame ndment, there was one party plaintiff. After the substitution, th ere still would have be en only one party plaintiff. Simply, Lewis would ha ve been substituted for Miller.

4_____________ ____________ Contrary to the majority’s statement, MCR 2.118(D) does not limit relation back only to new claims or defenses. Ra ther, it is silent with respect to whether relation back can apply to a dded or substituted parties. Although admittedly in a different context, this Court has previously allowed relation back where the amendment changed the named party. In the case of Wells v Detroit News, Inc , 2 the Court remarked, “‘Wh ile due diligence is required in pleadings of the plaintiff in th e description of the parties, and pleadings still serve a necessary purpo se, nevertheless, where no on e has been misled in any manner by a misnomer, the amendm ent should be permitted.’” 3 Id., quoting Fildew v Stockard , 256 Mich 494, 498; 239 NW 868 (1932). Accordingly, the majority’s claim that rel ation back is not allowe d because the rules do not specifically allow it is unpersuasive and inconsistent with precedent. Because the court rules are silent with respect to wheth er a substitution of parties relates back, it is appropriate to id entify what best effec tuates the principle underlying the relation-back do ctrine. The purpose of re lation back is to deprive defendants of the opportunity to defeat a valid claim by using a legal technicality when the rationale for the statute of limita tions has been met. 6 Michigan Law &

2 360 Mich 634, 641; 104 NW2d 767 (1960).

3 The majority finds that relation back is proper wh en the amendment corrects a misnomer, as in Wells , but not when the amendm ent substitutes a party, as it does here. However, when no one has been misl ed and the opposing party has full notice, the distinction is indefensible.

5_____________ ____________ Practice, Civil Procedu re, § 37, pp 69-70; Smith v Henry Ford Hosp, 219 Mich App 555, 558; 557 NW2d 154 (1996). Relation back “‘satisfies the basic policy of the statute of limitations, because the transactional base of the clai m must still be plead ed before th e statute runs, thereby giving d efendant notice within the statut ory period that he must be prepared to defend against all claims for relief arising out of that transaction.’” LaBar v Cooper , 376 Mich 401, 406; 137 NW 2d 136 (1965), quoting Honigman & Hawkins, 1 Michigan Cour t Rules Annotated, p 416. In this case, allowing the amendment to relate back to the date of the filing of the complaint is consistent with th e general principle underlying the relation

back doctrine. Moreover, it does not t ranscend the purpose of the statute of limitations, which is to “‘pre vent[] surprises through th e revival of claims that have been allowed to slumb er until evidence has been lo st, memories have faded, and witnesses have disappeared.’” 4 Cowles v Bank West , 476 Mich 1, 21; 719 NW2d 94 (2006), 5 quoting American Pipe & Co nstr Co v Utah , 414 US 538, 554; 94 S Ct 756; 38 L Ed 2d 713 (19 74) (further citation omitted).

4 The majority offers no reason other th an its reading of MCR 2.118(D) for its decision that relation back does not appl y to amendments that substitute parties.

5 The majority cites the C ourt of Appeals decision in Cowles for the proposition that relation back does not appl y to the addition of new parties. The holding in Cowles is inappropriate for a number of reasons. First, the statement was dictum since the Court of Appeals ma jority found that th e amendment did not add new parties. Second, this case involv es substituting one part y for another, not adding new parties.

6_____________ ____________ It is uncontested that defendants had notice of the claim and knew that trustee Lewis was the real party in int erest. None of th e facts concerning the accident and no part of the legal basis of the claim would change as a result of the amendment. Because defendants had notice and were not misled, it is illogical to conclude that the Legislature wrote the limi tations statute intending that it be used as it has been here.
F EDERAL R ULE OF C IVIL P ROCEDURE 15 When MCR 2.118 was first adopted, it was modeled after Federal Rule of Civil Procedure 15. 6 As this Court noted, “‘S ub-rule 118.4 is intended to introduce a more liberal and workable test, borrowed fr om the Federal Rules.’”
LaBar , supra at 405, quoting 1 Ho nigman & Hawkins, Michigan Court Rules Annotated, p 416. The current version of MCR 2.11 8(D) closely resembles Federal Rule 15(c). 7 Significantly, neither the cu rrent version of MCR 2.118(D) nor the 1937 version of Federal Rule 15(c) specifically addresses relation back of amendments that substitute parties. Despite this omission, federal courts have interpreted the 1937 version of Federal Rule 15(c) as a llowing relation back of

6 The predecessor of M CR 2.118 was adopted in 1963 as GCR 1963, 118.

7 Federal Rule 15(c), prom ulgated in 1937, stated: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set fort h in the original pleading, the amendment relates back to the da te of the original pleading.

7_____________ ____________ amendments changing parties. 8 In 1966, Federal Ru le 15(c) was amended to address amendments of pleadings that change or rename party defendants. 9 The advisory committee notes to the 1966 amendments indicate that the new provision formally recogni zed the validity of permitti ng amendments to change parties to relate back. Rule 15(c) is amplified to state more clearly when an amendment of a pleading changing the party against whom a claim is asserted (including an amen dment to correct a misnomer or misdescription of a defe ndant) shall “relate back” to the date of the original pleading. [Advisory Committee Notes to FR Civ P 15(c).]

8 See Russell v New Amsterdam Cas Co , 303 F2d 674, 680-681 (CA 8, 1962); Jackson v Duke , 259 F2d 3, 6-7 (CA 5, 1958); American Fidelity & Cas Co v All American Bus Lines, Inc , 190 F2d 234, 236- 237 (CA 10, 1951).

9 Federal Rule 15(c), as amended in 1966, provided in relevant part: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set fort h in the original pleading, the amendment relates back to the da te of the original pleading. An amendment changing the party agai nst whom a claim is asserted relates back if the foregoing provisi on is satisfied and, within the period provided by law for commen cing the action against him, the party to be brought in by amendm ent (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the mer its, and (2) knew or should have known that, but for a mi stake concerning the id entity of the proper party, the action would have been brought against him. [Emphasis added.]

8_____________ ____________ The amendment did not mention relation ba ck when the change involves a party plaintiff. However, the advisory committee notes reveal that the omission of plaintiffs from 15(c) does not preclude relation back in su ch circumstances. The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15(c) since the problem is generally easier. Again the chief consideration of policy is that of the statute of limitations, and the attitude taken in revised Rule 15(c) toward change of defendants extends by an alogy to amendments changing plaintiffs. [ Id .] While committee notes do not bind this Cour t, they do serve as an instructive aid to interpretation. Shields v Reddo , 432 Mich 761, 778; 443 NW2d 145 (1989). The foregoing committee not es and federal caselaw su pport construing MCR 2.118(D) to allow relati on back of amendments involving plaintiffs. In its current form, Federal Rule 15(c) continues to support the use of the relation back rule for amendments subs tituting plaintiffs. Unlike MCR 2.118(D), Federal Rule 15(c) 10 specifically addresses and allo ws relation back when a party defendant is substituted. It provides, in part: (c) Relation Back of Amendm ents. 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 ass erted in the amended pleading arose out of the conduct, transac tion, or occurrence set forth or attempted to be set forth in the original pleading, or

10 The federal rule was amended to its current form in 1991.

9(3) the amendment changes the party or the naming of the party against whom a claim is assert ed if the foregoing provision (2) is satisfied and, within the period prov ided by Rule 4( m) for service of the summons and complaint, th e party to be brought in by amendment (A) has received such no tice of the institution of the action that the party will not be p rejudiced in maintaining a defense on the merits, and (B) knew or shou ld have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. In 1992, the United States Bankruptcy Court for the South ern District of California applied Rule 15(c) to allow the complaint to be ame nded to change the named party plaintiff in Arthur v Schurek , 139 BR 512 (1992). There, a trustee had filed a fraudulent conveya nce claim only days before the statutory period of limitations was to expire. Id. at 513-514. In his haste to file, counsel denominated the plaintiff as “James D. Arthur on behalf of Ralph O. Boldt, Trustee.” Id. at 514. The trustee later filed an amended comp laint, which changed the name of the plaintiff to “Ralph O. Boldt, Trustee.” Id. The defendants moved to dismiss the amended complaint, asserting that it ins tituted a new and separate claim belonging to the trustee, which was filed after the expiration of the limitations period. Id. The Arthur court denied the motion, noti ng that “[t]he relation back of amendments changing plai ntiffs is not expressly treated in revised Rule 15(c) . . . .” Id. at 515 n 5. However, by analogy, the court found the test to be “whether ‘the [defendant] has received such notice of the ins titution of the action that the [defendant] will no t be prejudiced in main taining a defense on the merits.’” Id. at 515. The orig inal complaint in Arthur notified the defendants of

10_____________ ____________ the institution of the fraudulent conveyan ce action. Also, th e defendants alleged no prejudice. Hence, the bankruptcy court found, by an alogizing with rule 15(c), that the amendment substituting the trus tee relates back to the da te of the filing of the original complaint. Arthur , 139 BR at 515-516. In Arthur , the defendant was not misled and had full notice of the identity of the real party in interest. The decision illustrates that, under those circumstances , no reason exists to refuse to apply relation back to an amendment that substitutes the named party plaintiff. 11
C ONCLUSION I would reverse the lower courts’ ju dgments, allow the substitution of trustee Lewis as the party plaintiff, and rem and the case for trial. The majority’s reliance on MCR 2.118(D) is ill-founded because that rule does not address the substitution of a party. Relation back should be a llowed in this case because it is consistent with the general principle underl ying the relation-back doct rine: defendants had full notice of the proper party pl aintiff within the statutor y period of limitations and were not misled by counsel’s error in naming Miller. As Justice Black, speaking for the United States Supreme Court, stated “[t]here is no reason to apply a statute

11 Other federal cases appl ying relation back to an amendment that changes the named plaintiff are Advanced Magnetic s, Inc v Bayfront Partners, Inc , 106 F3d 11, 18-21 (CA 2, 1997); SMS Fin, Ltd Liability Co v ABCO Homes, Inc , 167 F3d 235, 244-245 (CA 5, 1999); and Plubell v Merck & Co , 434 F3d 1070, 1071

- 74 (CA 8, 2006).

11of limitations when, as here, [defendants have] had notice from the beginning that [plaintiff] was trying to enforce a claim against [them].” Tiller v Atlantic Coast L
R Co , 323 US 574, 581; 65 S Ct 42 1; 89 L Ed 465 (1945). Trustee Lewis has a valid claim. The majority should not read words into MCR 2.118 in such a ma nner as to deny Lewis her day in court. Marilyn Kelly Michael F. Cavanagh

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