State v. Richardson, No. S0979-03 Cncv (Katz, J., Apr. 1, 2004) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

STATE OF VERMONT 

Chittenden County, ss.: 

 

STATE OF VERMONT 

v. 

RICHARDSON 

 

ENTRY 

 Parties may be added through amended pleadings under V.R.C.P. 

15. The grounds for a Rule 15 party addition are limited to where the 

claims against the new party arise out of the same incident or conduct as the 

original pleadings. The added party must also have “received such notice 
of the institution of the action that [he] will not be prejudiced in 

maintaining a defense on the merits.” Rule 15(c)(3)(A). This would appear 

to be the key issue in the present case. The second criteria is that the added 

party must also have actual or constructive notice that “but for” a mistake 

concerning party identity, he would have been a defendant from the start. 

Rule 15(c)(3)(B). 

 Rule 15 is to be interpreted liberally and can suspend the normal 

procedures of a civil action including: statutes of limitation, service of 

process, and discovery. In fact the rule was amended in 1995 just to 

reverse the unforgiving holding in Schiavone v. Fortune, 477 U.S. 21 

(1986), which rejected an amended pleadings because it gave notice to an 

added defendant after the expiration of time. From the facts of the present 

case, the petitioner easily satisfies the element of constructive notice. 

Federal courts have found such notice to come from any number of sources 

including informal awareness of the lawsuit. Swartzwalder v. Hamilton, 56 

F.R.D. 606 (D.C. Pa. 1972) (allowing amendment to name actual owner of 

car where he had not been named but had been at the underlying accident). 

Important to this conclusion are the facts of this case which include “a 

substantial identity of interest between the originally named and the added 

party, the parties having the same agents or attorneys, and the parties 

having the same address.” Wong v. Calvin, 87 F.R.D. 145, 150 (D.C. Fla. 

1980). 

 The more serious concern here is the threat of prejudice to the 

defendant from having to defend against charges halfway through a trial. 

Important considerations are whether the original pleading 

was likely to give fair notice to the added party that a claim 

existed against her for the occurrence described in the 
complaint and whether the added defendant suffers any 

prejudice other than having to defend a lawsuit which she 

hoped was time barred. 

Wong, 87 F.R.D. at 149–50. Adding Bruce Richardson would not prohibit 

him from making an effective defense. The videotaped inspection 

presented thus far shows Bruce Richardson to have been working with his 

wife to protect their interests from the state’s enforcement efforts. Given 

that the parties have a substantial identity of interest and would be offering 

the same defense, which the current defendant has done more than 

adequately, it would seem that there is room to allow the amendment under 

the liberal standard. The amendment seems to be merely an 

acknowledgment of the parties’ situation and the husband’s ownership 

stake and control, and thus his constructive notice and interest in the 

outcome of this trial. 

 The State’s motion to amend is granted. 

 Dated at Burlington, Vermont________________, 20_______. 

 ________________________ 

 Judge