### No.14831 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

CHARLOTTE VINCENT, Plaintiff and Appellant,

-vsJOHN ROBERT EDWARDS et al., Defendants and Respondents.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: ForAppellant: McDonough, Cox and Simonton, Glendive,Montana For Respondents: Douglas 

### Y. Freeman,Hardin, Montana Ronald Lodders,Billings, Montana Charles Cashmore,Billings, Montana



### flf;T

,, :ir;? 

### Filed: -. 

### Submitted on briefs: September 12, 1979

### Mr. Justice Gene B. Daly delivered the Opinion of the Court.

his 

### is an appeal from the judgment in a personal injury action from the District Court, Thirteenth Judicial ~istrict, Yellowstone County. Plaintiff Charlotte Vincent appeals from the District Court order granting summary judgment in favor of the defendants, Schultz & 

### Meyer ConstructionCompany,Empire Sand & 

### Gravel Company, Inc., and Jimmy D. Arndt. Plaintiff brought this cause to recover for injuries suffered in an automobile accident on the night of July 3, 1974. She was a passenger in an automobilewhich struck a
cow lying on Interstate 94which was then under construction. The cow had been struck by two other automobiles immediately before plaintiff's collision. The original complaint alleges the accident resulting in plaintiff's injurieswas caused by the negligence of the operators of the two other automobiles and the construction companiesworking on Interstate 94. The original complaint

was filed on June 28, 1977. At that time, plaintiff positively knew the identity of only two defendants, John Robert Edwards and George Mike Edwards. Consequently, the driver of the second car, Jimmy D. Arndt, and the two construction companies, Schultz & 

### Meyer Construction Company and ~mpire Sand & 

### Gravel Company, Inc., were designated by fictitious names pursuant to section 25-5-103, MCA. Respondent Arndt

was designated as "John Doe" and the two construction companies were designated as "A.B.C. Construction company" in the original complaint. Later,plaintiff moved to amend the original complaint upon discovering the true identities of the fictitiouslynamed defendants. The motion was granted on September 25, 1978, and plaintiff filed an amended complaint. The three fictitiously named defendants

### were each served with a summons on or after September 25, 1978. Prior to such service, they had no notice of either the accident

or the institution of any prior action on behalf of plaintiff. There 

### is no dispute that the true names of the two construction companies could have been obtained from information easily accessible upon mere inquiry. The three fictitiously named defendants moved for summary judgment on the grounds that the three-year statute of limitationson plaintiff's claim had run on July 3, 1977, under section 27-2-204(1), MCA. The motion was granted, and judgment was entered against plaintiff on April 

### 30, 1979. Plaintiff appeals from thisjudgment. This appeal raises an issue of firstimpression inthis jurisdiction: whether ornot the "relation back" limitations of Rule 15(c),M.R.Civ.P., apply to an amendment of a complaintmade toidentify defendants originally named fictitiously pursuant to section 25-5-103, MCA, and made after the statuteof limitations has run. This appeal involves two Montana statutes and their interpretation and relationship toeach other. Plaintiffappellantrelies on the fictitiousname statute, section 25- 5-103, MCA, which provides: "Suing a party a fictitiousname. When the plaintiEf isignorant of the name of the defendant, such defendant may be designated inany pleading or proceeding by any name; and when his true name isdiscovered, the pleadings or proceedings may be amended accordingly." The second statute relevant to this appeal is Rule 15(c), M.R.Civ.P., regarding the relation back of amendments to pleadings, which provides inpertinent part:"Relationback 

### -- of amendments. Whenever the claim or defense asserted inthe amended pleading arose outof the conduct, transaction, or occurrence 

### set forthor attempted tobe 

### set forth inthe originalpleading, the amendment relatesback 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 tobe brought in by amendment 

### (1)has received such notice of the institution of the action that he 

### willnot be prejudiced inmaintaining 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 actionwould have been brought against him." In her brief appellant argues thatRule 15(c),M.R.Civ.P., and the fictitiousname statute speak todifferent circumstances. She contends that section 25-5-103 

### isconcerned with defendants whose names or identities areoriginally unknown and are 

### later discovered and no change of parties is involved. Rule 15(c),she argues, 

### is concerned with a situationwhere a plaintiff has either misnamed the proper defendant or has mistakenly named the wrong defendant, and therefore wishes tomake an amendment "changing the party." She argues that the requirements of Rule 15(c),which admittedly have not been satisfied here, do not apply to amendments substitutingnamed defendants for fictitiousdefendants after the statute of limitationshas expired. Thus, appellantcontends, amendments identifying and substituting named defendants relate back to the filingof the original complaint naming fictitiousdefendants, and the statute of limitations is tolled. The only purpose of the fictitious

name statute

### is to toll the statuteof limitations ina situation such 

### as thatwhich confronted appellant in the present case. Finally, appellantdenies that there is any requirement for a plaintiff utilizing the fictitiousname statute to exercise reasonable diligence todetermine thetrue name of the defendant, or inthe alternative, if there 

### is such a requirement, the defendantmust demonstrate prejudice, which has not been done in this case. Respondents urge that the statute of limitations had

run outbefore any of the respondents 

### were named 

### as parties defendant, and that the 

### trial court therefore properly granted summary judgment. They argue that the amended complaint does not relateback to the filing of the original complaint for two reasons: 

### (1)Rule 15(c),M.R.Civ.P., 

### is applicable and 

### itsrequirements have not been 

### met; and (2) theplaintiff did not exercisereasonable diligence to determine the true names of the fictitiously named defendants. Because we hold that an amendment to a complaint substituting named defendants for fictitiously named defendants fallswithin the scope of Rule 15(c),

### it isnot necessary for us toconsider the second issue raised on appeal. Atthe outset 

### it isworthy of note thatwhile Montana's fictitiousname statute, section 25-5-103, MCA, permits amendment of the pleadings upon discovery of the defendants' true names, the statute

### is silent as to the relation back of the amendment and the statute of limitations. Both of these issues, the relation back of amendments and the statuteof limitations, are specifically addressed inRule 15(c),but



### are not mentioned insection 25-5-103, the fictitious name statute. Nevertheless, appellant contends that despite the absence of any language in section 25-5-103 tolling the statuteof limitations orproviding for the relation back of

an amendment, the only purpose of a fictitiousname statute is to toll the statuteof limitations and the amended complaintmust therefore relateback tothe filing of the original complaint, citingAnnot., 85A.L.R.3d 130, 134, insupport of her position. Werefuse toread such a rule into section 25-5-103 by implication, sinceRule 15(c)expressly deals with thematter. It is clear that the more specific provisions of Rule 15(c),M.R.Civ.P., arecontrolling in the present case. This rule provides: 

# ".

.

# . An amendment changing the party against whom a 

### claim

### is asserted relates back 

### --- if the foregoing provision 

### is satisfied [same transaction or occurrence]and, within the period provided 

### by 

### -- lawfor commencing 

## the action against him, the party tobe brought inby amendment (1)has received such notice of the institution of the action thathe 

### willnot be prejudiced inmaintaining 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 actionwould have been brought against him." (Emphasis and bracketed material supplied.) Appellant apparently acknowledges that the requirements of Rule 15

### (c)have not been 

### metinthis case in thatneither respondent Jimmy D. Arndt nor respondents Schultz & Meyer Construction Company and Empire Sand & Gravel Company, Inc., had any notice orknowledge of the institution of the action against them until after the three-year statuteof limitations had expired. Laforest v. Texaco, Inc. (1978), Mont. 

## , 585 P.2d 1318, 1321, 35 St.Rep. 1580. Appellant seeks toavoid the consequences of this factunder Rule 15

### (c)by attempting to

### limitthe application of Rule 15(c) to situationswhere a plaintiff has either misnamed the proper defendant or has mistakenly named the wrong person as
a party defendant, and by attempting todistinguish the circumstances covered by the fictitiousname statute, where the identitiesof defendants whose names 

### were originally unknown are later discovered. We agree with the respondents that this 

### isa distinctionwithout a difference.As 

### far asrespondents areconcerned, these amendments

were 

### amendments "changing the party against whom a claim is 

### asserted," since the firsttime respondents had any notice

orknowledge that they 

### werebeing sued was when they were served with the amended complaints. From their standpoint, respondents 

### were completely new parties brought into the action for the first

### timeafter the statuteof limitations had run. Rule 15(c)is

### designed toprovide protection for individuals in the position of respondents, who had no notice or knowledge of the lawsuituntilmore than a year after the statuteof limitationshad run. In Laforest v. Texaco, Inc. (1978) -

### Mont. 

## , 585 P.2d 1318, 1321, 35 

### St.Rep. 1580, the originalcomplaint erroneously named the wrong persons asdefendants, and theproper defendant, Texaco, had

no notice orknowledge of the lawsuit until it 

### was served with an amended complaint after the statuteof limitations had run. Although the fictitiousname statutewas not involved inLaforest, this Court discussed the reasoning underlying Rule 15(c)in thatcase, quoting from Munetz v. Eaton Yale & 

### Towne, Inc. (E.D. Pa. 

### 1973), 57 F.R.D. 

### 476,

"'If plaintiff had inmind initially the proper entityorperson and actually had served that intended person orentity, then it is

### clear that the amendment would be permitted even though the statuteof limitationshad run as totheperson somisnamed in the process and complaint, because the person or 

### entitywould already be in court, would have had adequate notice of the pendency of the action, and, therefore, there would be 

### no prejudice to the person or entity by allowing the amendment. However, when the effectof the amendment is

### tobring before the Court for the firsttime

### a completely different person or entitywhich had notpreviously had notice of the suitand such amendment, assuming it 

### would relateback, occurs after the applicablestatuteof limitations has run, then the new person or entitywould be prejudiced and the amendment 

### isnot allowed

# . . . "'The addition or substitutionof parties who had no notice of the original action 

### isnot allowed. Substitutionof a completely new defendant creates a new cause of action. Permitting such procedure would undermine the policy upon which the statuteof limitations isbased.' (Citationsomitted.)

### " This 

### same rationale has been followed incases from other jurisdictions considering both a fictitious name statute similar or identical toMontana'

### s 

### - and Rule 15(c): "As an initialmatter, because from the viewpoint of the party sought tobe added belatedly, 

### it can make no differencewhether he was originally designated asJohn Doe and not served, or originally neither named nor served because another person was erroneously thought tobe the correct defendant, 

### we hold thatboth situations 

### are encompassed by 

### S 81A-115(c)'s reference to 'changing the party against whom a 

### claim is asserted.'" Sims v. American Casualty Company (1974), 131Ga.App. 461, 206 S.E.2d 121, 134, aff'd., 232 Ga. 787, 209 S.E.2d 61. See also Gould v. Tibshraeny (1973), 21Ariz.App. 146, 517 P.2d 104, 106. The policy behind our statuteof limitations has been stated and given effectby theMontana Court in Cassidy v. Finley (1977), 

### -Mont. 

### - 

## , 568 P.2d 142, 

### 144,

"This Court has often stated one of the objects of a true statute of limitations is toprevent potential plaintiffs from sitting on their rights, and to suppress staleclaims after the facts concerning them have become obscured by lapse of 

### time, defective memory, or deathor removal of witnesses." Appellant argues that the only purpose of a fictitious

name statute is to toll the statuteof limitations so that the amendment substituting the defendants' true names for the fictitiousdefendants 

### willrelate back to the filing of the original complaint. This argument ignores the requirements of Rule 15(c)and the policies expressed incases

### construing that rule. Furthermore,other purposes and applicationsof the fictitious name statute can be readily found in cases involving unknown heirs, in quiet title actions and other actions, and in discovery procedures.. Appellant relies largely on Annot., 85A.L.R.3d 130, and cases cited therein, for the proposition that an amendment substituting the true name of a defendant designated by a fictitious name in the original complaint relates back to the filing of the original complaint for the purpose of tolling the statute of limitations. Two of the cases,while considering a fictitious name statute or a court rule allowing designation of unknown defendants by a fictitious name,
were decided before the adoption of Rule 15(c) or its equivalent in their respective jurisdictions. Therefore,Maddux

v. Gardner (1945), 239 Mo.App. 289, 192 S.W.2d 14, and Wall Funeral Home, Inc. v. Stafford (1969), 3 N.C.App. 578, 165 S.E.2d 532, cannot be considered as authority for appellant's proposition thatRule 15(c) is inapplicable or for the proposition that the amendments relate back to toll the statute of limitations in the present case, since there was
no Rule 15(c) or equivalent to consider when those cases
were decided. By the same token, Sousa v. Casey (1973),111 R.I. 623, 306 A.2d 186, and Farrellv. Votator ~ivision of Chemetron Corp. (1973), 62N.J. 

### 111, 299 A.2d 394, also failed to address the questionpresented here concerning the effect of Rule 15(c) on fictitiouslynamed defendants. While those jurisdictionshad adopted Rule 15(c) or its equivalent at the time the cases were decided, the decisions made no mention 

### of 

### the rule. Thus, although Rule 15(c) was in force, those cases were decided solely on the basis of a fictitious name statute or court rule, and the effect of Rule 15(c) was not considered.

### Appellant points out thatMontana's fictitious name statute, section 25-5-103,MCA, was adopted verbatim from the California statute, and argues that the California cases construing that statute support her contentions. This argument ignores the fact that California has no Rule 15(c)

nor any equivalent procedural rule that speaks to the relation back of amendments. See West's Annotated California Code of Civil Procedure, sections 473, 474. Therefore, Mayberry v. Coca Cola Bottling Co. (1966), 244 Cal.App.2d 350, 53 Cal.Rptr. 317, and other California cases are distinguishable since they did not consider the issue involved in the present case. On the other hand, the federal cases cited by respondents were decided under Rule 15(c) alone, as there is no federal fictitious name statute, and the federal courts have not adopted a court rule allowing the designation of unknown defendants by fictitious names. Craig v. United States (9th Cir. 1969)r 413 F.2d 854; Stephens v. Balkamp, Inc. (E.D. Tenn. 1975), 70 F.R.D. 49. This is true even in a diversity suitwhere state law provides for a fictitiousname statute,

on the grounds that such a statute isprocedural rather than substantive, and is therefore inapplicable in a federal diversity action under Erie Railroad Co. 

### v. Tompkins (1938), 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. See Williams v. Avis Transport (D. Nev. 1972), 57 F.R.D. 53. The only cases considering both a fictitious name statute and Rule 15(c) have held that an amendment to a complaint substituting named defendants for fictitious defendants will relate back to the filing of the original complaint and toll the statute of limitations only if the requirements of ~ule 15(c)are satisfied. Gould v. Tibshraeny (1973), 21 ~riz.App-

### 146, 517 P.2d 104, is squarely on point with the present case. In Gould the plaintiff named fictitious defendants pursuant to a fictitious name statute nearly identical to Montana's, then subsequently filed an amended complaint substituting Tibshraeny for one of the "Doe"defendants after the statute of limitations had run. The court rejected the same argument presented here by appellant,holding that the amended complaint did not relate back to the filing of the original complaint to toll the statute of limitationswhere the requirements of Rule 15(c) had not been met: "It is fundamental that the purpose of the statute of limitations is to provide a cutoff point in time for stale claims. Rule 15(c) carries out this sound policy by requiring notice of the institution of the action within the time limitations set by the statute of limitations before an amendment adding new parties will relate back to the date of the original pleading." Gould, 517 P.2d at 106. TheArizona Court relied on an earlier Arizona decision which is also on point. See Hartford Insurance Group v. Beck (1970), 12Ariz.App. 532, 472 P.2d 955. Cases considering both a fictitiousname statute and Rule 15(c) have also been decided in Georgiawith the same result. In Sims

v. American Casualty Company (1974), 131 Ga-App. 461, 206 S.E.2d 121, 134-136, aff'd., 232 Ga. 787, 209 S.E.2d 61, the plaintiff amended her complaint to substitute several named defendants for those fictitiouslynamed in her original complaint after the statute of limitations had run. Summary judgment for the defendantwas affirmed, against the plaintiff's contentions that the amendment related back to the filing of the original complaintunder the fictitious name statute. As in the present case, the requirements of Rule 15(c) had not been satisfied because the defendants did not have notice or knowledge of the action within the period oflimitations. See alsoBrer Rabbit Mobile Home Sales, Inc.

v. Perry (1974), 132 Ga.App. 128, 207 S.E.2d 578, and Annot., 85A.L.R.3d 130, 146-148, S7(a). In summary a plaintiff may utilize the fictitiousname statute and may amend 

### a complaint to substitute the true

name of the defendant when discovered. If the amendment

occurs after the statuteof limitations has run, however, the real or intended defendant must have eitherbeen served

orotherwise received notice of the institution of the action under the conditions provided inRule 15(c). Affirmed.

We concur: 

# %'..UE$%&~, Chief Justice 

# y-ibvL L- ,b,h7 Justices