Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

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 the failure to name 

plaintiff’s bankruptcy trustee in the lawsuit. Plaintiff filed a motion to amend the 

complaint to substitute the bankruptcy trustee as plaintiff, but the trial court 

dismissed the lawsuit. The Court of Appeals 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 In doing so, we adopt as our own the following unpublished opinion 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 his complaint and granting defendants’ motion 

for summary disposition pursuant to MCR 2.116(C)(5) based on lack 

of standing. We affirm. This appeal is being decided without oral 

argument pursuant to MCR 7.214(E). 

Plaintiff’s complaint alleged that on December 28, 2000, 

defendant Kevin Paperd was operating an automobile that was 

owned by one or more of the remaining defendants when he 

negligently struck plaintiff’s vehicle, causing plaintiff to suffer a 

serious impairment of an important body function and/or serious 

permanent disfigurement. Defendants sought summary disposition 

pursuant to MCR 2.116(C)(5), contending that plaintiff was not the 

real party in interest and lacked standing to sue. Defendants alleged 

that plaintiff had filed a petition for bankruptcy under Chapter 7 of 

the United States Bankruptcy 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 stated that Wendy Turner Lewis, the 

trustee for his bankruptcy estate, had authorized plaintiff’s counsel to 

file a complaint on behalf of the bankruptcy estate, and that counsel, 

through no fault of plaintiff or Lewis, had misidentified the plaintiff. 

The trial court entered an order denying as futile plaintiff’s 

motion to amend and granting defendants’ motion for summary 

disposition, stating: 

“There is no dispute the real party 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 requires. Leave to amend should be 

denied only for particularized reasons, such as undue delay, bad 

faith or dilatory motive on the movant’s part, repeated failure to 

cure deficiencies by amendment previously allowed, undue 

prejudice to the opposing party, or where amendment would be 

futile. Ben [P]Fyke & Sons v Gunter [Co], 390 Mich 649; 213 

NW2d 134 (1973). In [Employers Mut Cas Co v Petroleum 

2 
Equipment, Inc, 190 Mich App 57, 63; 475 NW2d 418 (1991)], the 

court held that ‘Although an amendment generally relates back to 

the date of the original filing if the new claim asserted arises out of 

the conduct, transaction, or occurrence set forth in the original 

pleading, MCR 2.118(D), the relation-back doctrine does not extend 

to the addition of new parties.’ 

“The court is satisfied that because the bankruptcy trustee was 

the real party in interest prior to the filing of the Complaint, this is a 

motion to add a party and is not merely a request to correct a 

misnomer. Thus, the court finds that based on the binding precedent 

in Employers, the amendment would be futile 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 vested with the right of action on a 

given claim, although the beneficial interest may be in another.” 

Blue Cross & Blue Shield of Michigan v Eaton Rapids Comm Hosp, 

221 Mich App 301, 311; 561 NW2d 488 (1997). “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 Richland 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 amendment and its 

relation back. “‘As a general rule, . . . a misnomer of a plaintiff or 

defendant is amendable unless the amendment is such as to effect an 

entire change of parties.’” Parke, Davis & Co v Grand Trunk Ry 

System, 207 Mich 388, 391; 174 NW 145 (1919) (citation omitted). 

The misnomer doctrine applies only to correct inconsequential 

deficiencies or technicalities in the 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 amendment 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 names where their first and middle 

names had been reduced to initials in the original 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 doctrine 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 that an amendment 

relates back to the date of the original pleading only if it “adds a claim or a 

defense”; it does not specify that an amendment to add a new party also relates 

4 
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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 plaintiff 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 relation-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 particular, 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) (stating 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 the orderly disposition of an injured 

party’s cause of action,” post at 1, simply ignores that defendants in their answer 

to plaintiff’s complaint provided plaintiff with notice of the defect that the wrong 

plaintiff had been named 12 days before the period of limitations expired. Justice 

Kelly’s appeal to FR Civ P 15(c) is also inapposite, because the language of the 

federal rule is altogether different from MCR 2.118(D). The current federal rule 

allows for the relation 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 allowed 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 amendment to relate back if the amendment “adds 

a claim or a defense.” (Emphasis added.) Justice Kelly ignores this dispositive 

difference. 

5 
v 

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 appeal 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 amendment of the complaint. Rather, the 

amendment in this case simply involves replacing the wrongly named plaintiff, 

“Buddy Miller,” with the correct name of Buddy Miller’s bankruptcy trustee, 

“Wendy Turner Lewis.” As a result, any caselaw discussing whether the relationback doctrine applies to adding plaintiffs to a suit is immaterial because a new 

plaintiff is not being added. 

The Michigan Court Rules do not address the protocol for addition of 

parties to a suit. This Court has opened an administrative file to consider whether 
we should adopt, or not adopt, a rule amending the Michigan Court Rules to 

govern the addition of a party to a suit. 

 Elizabeth A. Weaver 

2
 
v 

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 the dismissal of this suit on the basis 

of a contrived legal technicality. It has misread MCR 2.118. In extinguishing the 

valid claim, it has allowed gamesmanship to take precedence over the orderly 

disposition of an injured party’s cause of action. The result is sad. I respectfully 

dissent and would reverse the lower courts’ judgments, allow trustee Wendy 

Turner Lewis to be substituted as the party plaintiff, and enable the case to 

proceed to trial. 

FACTS 

Plaintiff Buddy Miller, II, was injured when the automobile 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, plaintiff filed a voluntary petition for personal 
bankruptcy under Chapter 7 of the Bankruptcy Code. 11 USC 701 et seq. Lewis 

was appointed trustee of plaintiff’s estate and all of plaintiff’s rights regarding the 

accident were transferred to her. Lewis retained an attorney to bring suit to 

recover the damages that plaintiff sustained 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 attorney has taken full responsibility for the 

error. 

On December 16, 2003, fewer than two weeks before 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 was the real party in interest. After the 

limitations period expired, defendants filed a motion for summary disposition. In 

response, plaintiff Miller sought to amend 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 judgment in an unpublished 

2
 
_________________________ 

opinion per curiam, issued February 16, 2006 (Docket No. 256676). The majority 

has adopted the opinion as its own. 

ANALYSIS 

It is undisputed that it would be futile to allow the substitution of Lewis for 

Miller unless the amendment related back to the date of the filing of the complaint. 

Thus, the issue that controls the resolution of this case is whether relation back 

applies to an amendment that substitutes a party plaintiff. A majority of this Court 

has decided that it does not. This is an erroneous decision, one that allows a 

miscarriage of justice to go uncorrected.1

 As Justice Hugo Black of the United 

States Supreme Court has observed, the “‘principal function of procedural rules 

should be to serve as useful guides to help, not hinder, persons who have a legal 

right to bring their problems before the courts.’” Schiavone v Fortune, 477 US 21, 

27; 106 S Ct 2379; 91 L Ed 2d 18 (1986), quoting order adopting revised rules of 

the Supreme Court, 346 US 945, 946 (1954). 

1

 The Michigan Court Rules provide at MCR 1.105 that the “rules are to be 

construed to secure the just . . . determination of every action and to avoid the 

consequences of error that does not affect the substantial rights of the parties.” 

The result reached in this 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 plaintiff before the limitations period ran. 

Yet, defendants waited until after the period of limitations had expired to bring 

their motion for summary disposition. Although this proved an effective strategy, 

it illuminates what is wrong with the majority’s decision. By allowing defendants 

to prevail with a statute of limitations defense, this Court has elevated the skill 

level of defendant’s counsel over the pursuit of justice. 

3
 
 

MCR 2.118 

MCR 2.118 is the court rule that deals with amendments of pleadings. In 

relevant part, it provides: 

(A) Amendments. 

* * * 

(2) Except as provided in subrule (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 freely given when justice so requires. 

The court rules make no mention of whether 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 permit a substitution of parties 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 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. 

But MCR 2.118(D) applies only to amendments that add a claim or defense. The 

amendment in this case does neither. The original complaint asserted a claim 

arising from Buddy Miller’s automobile accident. Had the substitution that 

plaintiff requested been allowed, the complaint would have continued to assert the 

same claim, no other. Not only would no claim or defense have been added, no 

party would have been added. Before the amendment, there was one party 

plaintiff. After the substitution, there still would have been only one party 

plaintiff. Simply, Lewis would have 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. Rather, it is silent with respect to whether 

relation back can apply to added 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, “‘While due diligence is 

required in pleadings of the plaintiff in the description of the parties, and pleadings 

still serve a necessary purpose, nevertheless, where no one has been misled in any 

manner by a misnomer, the amendment should be permitted.’”3 Id., quoting 

Fildew v Stockard, 256 Mich 494, 498; 239 NW 868 (1932). Accordingly, the 

majority’s claim that relation back is not allowed because the rules do not 

specifically allow it is unpersuasive and inconsistent with precedent. 

Because the court rules are silent with respect to whether a substitution of 

parties relates back, it is appropriate to identify what best effectuates the principle 

underlying the relation-back doctrine. The purpose of relation 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 limitations has been met. 6 Michigan Law & 

2

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

3

 The majority finds that relation back is proper when the amendment 

corrects a misnomer, as in Wells, but not when the amendment substitutes a party, 

as it does here. However, when no one has been misled and the opposing party 

has full notice, the distinction is indefensible. 

5
 
 

 

_________________________ 

Practice, Civil Procedure, § 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 claim must still be pleaded before the statute 

runs, thereby giving defendant notice within the statutory 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 NW2d 136 (1965), quoting Honigman 

& Hawkins, 1 Michigan Court 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 the general principle underlying the relationback doctrine. Moreover, it does not transcend the purpose of the statute of 

limitations, which is to “‘prevent[] surprises through the revival of claims that 

have been allowed to slumber until evidence has been lost, memories have faded, 

and witnesses have disappeared.’”4 Cowles v Bank West, 476 Mich 1, 21; 719 

NW2d 94 (2006),5

 quoting American Pipe & Constr Co v Utah, 414 US 538, 554; 

94 S Ct 756; 38 L Ed 2d 713 (1974) (further citation omitted). 

4

 The majority offers no reason other than its reading of MCR 2.118(D) for 

its decision that relation back does not apply to amendments that substitute parties. 

5

 The majority cites the Court of Appeals decision in Cowles for the 

proposition that relation back does not apply 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 majority found that the amendment did not 

add new parties. Second, this case involves substituting one party 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 interest. None of the 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 limitations statute intending that it be used 

as it has been here. 

FEDERAL RULE OF CIVIL PROCEDURE 15 

When MCR 2.118 was first adopted, it was modeled after Federal Rule of 

Civil Procedure 15.6

 As this Court noted, “‘Sub-rule 118.4 is intended to 

introduce a more liberal and workable test, borrowed from the Federal Rules.’” 

LaBar, supra at 405, quoting 1 Honigman & Hawkins, Michigan Court Rules 

Annotated, p 416. The current version of MCR 2.118(D) closely resembles 

Federal Rule 15(c).7

 Significantly, neither the current 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 allowing relation back of 

6

 The predecessor of MCR 2.118 was adopted in 1963 as GCR 1963, 118. 

7

 Federal Rule 15(c), promulgated 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 forth in the original pleading, the 

amendment relates back to the date of the original pleading. 

7
 
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amendments changing parties.8

 In 1966, Federal Rule 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 recognized the validity of permitting 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 amendment to correct a misnomer or 

misdescription of a defendant) 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 forth in the original pleading, the 

amendment relates back to the date of the original pleading. An 

amendment changing the party against whom a claim is asserted 

relates back if the foregoing provision is satisfied and, within the 

period provided by law for commencing the action against him, the 

party to be brought in by amendment (1) has received such notice of 

the institution of the action that he will not be prejudiced in 

maintaining his defense on the merits, and (2) knew or should have 

known that, but for a mistake concerning the identity of the proper 

party, the action would have been brought against him. [Emphasis 

added.] 

8
 
 

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The amendment did not mention relation back 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 such 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 analogy to amendments changing 

plaintiffs. [Id.] 

While committee notes do not bind this Court, they do serve as an instructive aid 

to interpretation. Shields v Reddo, 432 Mich 761, 778; 443 NW2d 145 (1989). 

The foregoing committee notes and federal caselaw support construing MCR 

2.118(D) to allow relation 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 substituting plaintiffs. Unlike MCR 2.118(D), 

Federal Rule 15(c)10 specifically addresses and allows relation back when a party 

defendant is substituted. It provides, in part: 

(c) Relation Back of Amendments. 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 

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 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 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. 

In 1992, the United States Bankruptcy Court for the Southern District of 

California applied Rule 15(c) to allow the complaint to be amended to change the 

named party plaintiff in Arthur v Schurek, 139 BR 512 (1992). There, a trustee 

had filed a fraudulent conveyance 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 complaint, which changed the name of the 

plaintiff to “Ralph O. Boldt, Trustee.” Id. The defendants moved to dismiss the 

amended complaint, asserting that it instituted 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, noting that “[t]he relation back of 

amendments changing plaintiffs 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 institution of the action 

that the [defendant] will not be prejudiced in maintaining a defense on the 

merits.’” Id. at 515. The original complaint in Arthur notified the defendants of 

10
 
 

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the institution of the fraudulent conveyance action. Also, the defendants alleged 

no prejudice. 

Hence, the bankruptcy court found, by analogizing with rule 15(c), that the 

amendment substituting the trustee relates back to the date 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 

CONCLUSION 

I would reverse the lower courts’ judgments, allow the substitution of 

trustee Lewis as the party plaintiff, and remand 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 allowed in this case because it is consistent with 

the general principle underlying the relation-back doctrine: defendants had full 

notice of the proper party plaintiff within the statutory 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 applying relation back to an amendment that changes 

the named plaintiff are Advanced Magnetics, 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). 

11
 
of 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 421; 89 L Ed 465 (1945). 

Trustee Lewis has a valid claim. The majority should not read words into 

MCR 2.118 in such a manner as to deny Lewis her day in court. 

 Marilyn Kelly 

Michael F. Cavanagh 

12