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

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STATE OF VERMONT

Chittenden County, ss. :

STATE OF VERMONT

v.

RICHARDSON

ENTRY

Parties may be added through amended pleadings und er V.R.C.P. 15. The grounds for a Rule 15 party addition are li mited 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 noticeof 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 secon d 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 def endant from the start. Rule 15(c)(3)(B).

Rule 15 is to be interpreted liberally and can sus pend the normal procedures of a civil action including: statutes of limitation, service of process, and discovery. In fact the rule was amend ed in 1995 just to reverse the unforgiving holding in Schiavone v. Fo rtune , 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 o f constructive notice.

Federal courts have found such notice to come from any number of sources including informal awareness of the lawsuit. Swart zwalder v. Hamilton , 56 F.R.D. 606 (D.C. Pa. 1972) (allowing amendment to n ame 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 origin ally named and the added party, the parties having the same agents or attorn eys, 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 pre judice to the defendant from having to defend against charges hal fway through a trial.

Important considerations are whether the original p leading was likely to give fair notice to the added party t hat a claim existed against her for the occurrence described in thecomplaint and whether the added defendant suffers a ny prejudice other than having to defend a lawsuit whi ch she hoped was time barred.

Wong , 87 F.R.D. at 149–50. Adding Bruce Richardson wou ld not prohibit him from making an effective defense. The videotap ed inspection presented thus far shows Bruce Richardson to have b een working with his wife to protect their interests from the state’s en forcement efforts. Given that the parties have a substantial identity of int erest and would be offering the same defense, which the current defendant has d one more than adequately, it would seem that there is room to all ow the amendment under

the liberal standard. The amendment seems to be me rely an acknowledgment of the parties’ situation and the hu sband’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__

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________________________ Judge