SUPREME COURT OF ARIZONA

En Banc

SUZANNE TYMAN, ) Arizona Supreme Court 

 ) No. CV-06-0008-PR 

 Plaintiff-Appellant, ) 

 ) Court of Appeals 

 v. ) Division One 

 ) Nos. 1 CA-CV 05-0165 

HINTZ CONCRETE, INC., an Arizona ) 1 CA-CV 05-0352 

corporation; HAINES CONSTRUCTION, ) (Consolidated) 

INC., an Alaska corporation, ) 

 ) Maricopa County 

 Defendants-Appellees. ) Superior Court 

__________________________________) No. CV2004-010551 

 ) 

SUZANNE TYMAN, ) 

 ) 

 Plaintiff-Appellant, ) O P I N I O N

 ) 

 v. ) 

 ) 

NEW SONG UNITED METHODIST CHURCH, ) 

a non-profit Arizona corporation, ) 

 ) 

 Defendant-Appellee. ) 

 ) 

__________________________________) 

Appeal from the Superior Court in Maricopa County 

The Honorable Michael J. O'Melia, Judge

AFFIRMED

________________________________________________________________

Memorandum Decision of the Court of Appeals, Division One

Filed Dec. 8, 2005

VACATED 

________________________________________________________________

YEN PILCH KOMADINA & FLEMING, P.C. Phoenix

 By F. Kenton Komadina

 Robert E. Yen

 Caroline A. Pilch

 Neil Landeen

Attorneys for Suzanne Tyman
2

SKYPECK & SORENSEN Phoenix

 By John H. Ishikawa

Attorneys for Hintz Concrete, Inc.

CHEIFETZ IANNITELLI MARCOLINI, P.C. Phoenix

 By Steven W. Cheifetz

 Matthew Klopp

Attorneys for Haines Construction, Inc.

SWENSON STORER ANDREWS & FRAZELLE, P.C. Phoenix

 By Michael J. Frazelle

 Kimberly J. Sayre

Attorneys for New Song United Methodist Church

________________________________________________________________

H U R W I T Z, Justice 

¶1 This case requires us to interpret Arizona Rule of 

Civil Procedure 15(c), which provides that in certain 

circumstances an amended complaint “relates back to the date of 

the original pleading” for statute of limitations purposes. 

I. 

¶2 On June 4, 2002, Suzanne Tyman tripped and fell at a 

sidewalk construction site. She sustained personal injuries and 

retained counsel to pursue redress. 

¶3 Tyman initially filed a notice of claim against the 

City of Surprise pursuant to A.R.S. § 12-821.01(A) (2001). 

Tyman learned, however, that the City was not responsible for 

the construction site at which she sustained her injuries. Her 

counsel then sent letters of representation to Arizona Public 

Service and Mastec Construction. Tyman later learned that 

neither had any involvement with the construction site. 
3

¶4 On the eve of the expiration of the statute of 

limitations, Tyman still had not identified the parties 

responsible for the construction site. She nevertheless filed a 

complaint in superior court on June 2, 2004, two days before the 

two-year statute of limitations expired. See A.R.S. § 12-542(1) 

(2003) (providing two-year limitations period for personal 

injury claims). The complaint named as defendants Arizona 

Public Service; Mastec Construction; Pinnacle West Capital 

Corporation; Pinnacle West Construction, LLC; Temcon Concrete 

Construction Company; Bob’s Barricades, Inc.; United Rentals 

Highway Technologies, Inc.; and thirty fictitious defendants. 

¶5 After further investigation, Tyman filed an amended 

complaint on August 23, 2004. The amended complaint dropped all 

non-fictitious defendants named in the original complaint and 

instead sought damages against Hintz Concrete, Inc.; Haines 

Construction, Inc.; and New Song United Methodist Church 

(collectively, the “New Defendants”). Tyman served Hintz 

Concrete and New Song with the amended complaint eighty-four 

days after the statute of limitations expired. Haines 

Construction was served seven days later. 

¶6 The New Defendants moved for summary judgment, arguing 

that the statute of limitations barred the amended complaint. 

The superior court granted the New Defendants’ motions and 

entered judgment. The court of appeals affirmed. Tyman v. 
4

Hintz Concrete, Inc., 1 CA-CV 05-0165 (Ariz. App. Dec. 8, 2005) 

(mem. decision). 

¶7 Tyman petitioned this court for review. We granted 

review because the courts below have interpreted Rule 15(c) 

inconsistently. We have jurisdiction pursuant to Arizona 

Constitution article 6, section 5, clause 3 and A.R.S. § 12-

120.24 (2003). 

II. 

¶8 Rule 15(c) provides, 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 the party to be brought in by 

amendment, plus the period provided by Rule 4(i) for 

service of the summons and complaint, the party to be 

brought in by amendment, (1) 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 (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 the 

party. 

¶9 The purpose of Rule 15(c), like the federal rule upon 

which it is modeled, is “to ameliorate the effect of the statute 

of limitations.” See 6A Charles Alan Wright, Arthur R. Miller & 

Mary Kay Kane, Federal Practice and Procedure § 1497 (2d ed. 

1990) (describing Fed. R. Civ. P. 15(c)). Rule 15(c) permits 
5

this amelioration upon three conditions: (1) the claim in the 

amended pleading must arise “out of the conduct, transaction, or 

occurrence” alleged in the original complaint, Ariz. R. Civ. P. 

15(c); (2) “within the period provided by law for commencing the 

action against the party to be brought in by amendment, plus the 

period provided by Rule 4(i) for service of the summons and 

complaint,” the new defendant must have “received such notice of 

the institution of the action that the party will not be 

prejudiced in maintaining a defense on the merits,” Ariz. R. 

Civ. P. 15(c)(1); and (3) during the same period, the new 

defendant either “knew or should have known that, but for a 

mistake concerning the identity of the proper party,” the new 

defendant would have been named in the original complaint, Ariz. 

R. Civ. P. 15(c)(2). 

A. 

¶10 The first requirement of Rule 15(c) is not at issue 

here. The amended complaint plainly involved the same 

occurrence described in the original complaint. 

¶11 Nor is there any question that the second requirement 

was satisfied. Arizona Rule of Civil Procedure 4(i) allows 

service of a complaint within 120 days of filing. The New 

Defendants were served with the amended complaint, and therefore 

received notice of the claim, fewer than 120 days after the 

original complaint was filed. A defendant brought in through an 
6

amended complaint suffers no prejudice for purposes of Rule 

15(c)(1) if served “within the time that would have been proper 

if [the defendant] had been correctly named in the first place.” 

Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 466, 799 

P.2d 801, 807 (1990). 

B.

¶12 The case before us turns, then, on whether the third 

requirement of Rule 15(c) was satisfied — whether during the 

specified time period, the New Defendants “knew or should have 

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

proper party,” they would have been named in the original 

complaint. The courts below took differing approaches to this 

issue. 

¶13 The superior court’s minute entry granting summary 

judgment concluded, without elaboration, that “there is no 

mistake concerning the identity of the proper party.” The court 

also relied on the fact that the New Defendants “had absolutely 

no notice or knowledge of the claim until” the statute of 

limitations had run. 

¶14 The court of appeals, on the other hand, assumed 

arguendo the existence of a “cognizable mistake under Rule 

15(c).” Tyman, 1 CA-CV 05-0165, ¶ 10. But it nonetheless 

affirmed the judgment below, holding that Tyman presented no 

evidence that the New Defendants “knew or should have known 
7

within the time period specified by Rule 15(c)” that they would 

have been included in the original complaint but for the 

mistake. Id. ¶ 11. The court of appeals stressed that the New 

Defendants did not know of the accident until being served with 

the amended complaint. Id. The court also held that service of 

the amended complaint did not confer on the New Defendants the 

knowledge required under Rule 15(c)(2). Id.

1. 

¶15 The superior court erred in interpreting Rule 15(c) as 

requiring that the New Defendants know of Tyman’s claim before 

expiration of the statute of limitations. Rule 15(c)(2) does 

not require knowledge of a cognizable mistake within the 

original two-year statute of limitations period. Rather, the 

Rule expressly provides for relation back when the defendant 

knew or should have known of the mistake within the statute of 

limitations period “plus the period provided by Rule 4(i) for 

service of the summons and complaint.” Ariz. R. Civ. P. 15(c) 

(emphasis added). 

¶16 Nor does Rule 15(c)(2) require, as the court of 

appeals suggested, that a new defendant know before the end of 

the original limitations period about the occurrence alleged in 

the complaint. Rule 15(c)(2) only requires knowledge during the 

limitations period plus the period provided for service by Rule 

4(i) of “a mistake concerning the identity of the proper party.” 
8

The Rule does not require that a defendant have knowledge of the 

occurrence underlying the complaint before learning of the 

mistake. 

¶17 The court of appeals also erred in suggesting that 

service of an amended complaint cannot confer the knowledge 

required under Rule 15(c)(2). In some cases, comparison of the 

amended complaint to the original pleading will, or should, give 

a defendant sufficient knowledge of the mistake in identity. 

For example, in Ritchie, the original complaint sought damages 

for injuries caused by a mule ride at the Grand Canyon. The 

defendant was initially identified as Fred Harvey Transportation 

Company “doing business as Grand Canyon Scenic Rides.” 165 

Ariz. at 462, 799 P.2d at 803. After the statute expired, the 

plaintiff learned that Grand Canyon Scenic Rides, a separate 

corporation unaffiliated with the Harvey Corporation, conducted 

the mule ride. She amended the complaint accordingly. Id. 

When served with the amended complaint, the new defendant in 

Ritchie surely knew, or should have known, that its omission 

from the original complaint was caused by a mistake concerning 

identity. Thus in Ritchie there understandably was no dispute 

as to whether the new defendant knew or should have known of the 

plaintiff’s mistake; the case turned entirely on other issues. 

¶18 Were we to adopt the court of appeals’ assumption that 

Tyman made a mistake cognizable under Rule 15(c)(2), the next 
9

question would therefore be whether service of the amended 

complaint gave the New Defendants sufficient knowledge of that 

mistake. But we need not address the knowledge issue today 

because, like the superior court, we conclude that Tyman made no 

“mistake concerning the identity of the proper party” in the 

original complaint. 

C. 

¶19 Although Arizona courts have not interpreted the term 

“mistake” in Rule 15(c), other jurisdictions have given the word 

its ordinary meaning when interpreting similar provisions: “a 

wrong action or statement proceeding from faulty judgment, 

inadequate knowledge, or inattention.” Leonard v. Parry, 219 

F.3d 25, 28 (1st Cir. 2000) (quoting Webster’s Ninth New 

Collegiate Dictionary 760 (1983) and interpreting Fed. R. Civ. 

P. 15(c)); Centuori v. Experian Info. Solutions, Inc., 329 F. 

Supp. 2d 1133, 1138 (D. Ariz. 2004) (same); accord Pan v. Bane, 

141 P.3d 555, 563-64 ¶¶ 24-31 (Okla. 2006) (interpreting Okla. 

Stat. tit. 12, § 2015(C)(3)(b) (2006)); see also Black’s Law 

Dictionary 1022 (8th ed. 2004) (defining mistake as “[a]n error, 

misconception, or misunderstanding; an erroneous belief”). To 

decide whether a Rule 15(c)(2) “mistake” has occurred, the court 

must determine “whether, in a counterfactual error-free world, 

the action would have been brought against the proper party.” 

Leonard, 219 F.3d at 29 (interpreting Fed. R. Civ. P. 15(c)(3)). 
10

Therefore, “what the plaintiff knew (or thought he knew) at the 

time of the original pleading generally is the relevant datum in 

respect to the question of whether a mistake concerning identity 

actually took place.” Id.; accord Centuori, 329 F. Supp. 2d at 

1137-41. 

¶20 In deciding whether the plaintiff has made a mistake, 

we start from the assumption that, “by definition, every mistake 

involves an element of negligence, carelessness, or fault.” 

Leonard, 219 F.3d at 29; accord Centuori, 329 F. Supp. 2d at 

1138. Thus, Rule 15(c) “encompasses both mistakes that were 

easily avoidable and those that were serendipitous.” Leonard, 

219 F.3d at 29. 

¶21 Not every omission of a defendant from an original 

pleading is a mistake cognizable under Rule 15(c)(2). Because 

Rule 15(c)(2) requires a mistake concerning the identity of the 

proper party, it plainly does not cover a “deliberate decision 

not to sue a party whose identity plaintiff knew from the 

outset.” Leonard, 219 F.3d at 29 (quoting Wells v. HBO & Co., 

813 F. Supp. 1561, 1567 (N.D. Ga. 1992)); accord Centuori, 329 

F. Supp. 2d at 1139-40. For the same reason, “a mistake of law 

by counsel regarding whom to name in a lawsuit” is not a Rule 

15(c)(2) mistake. O’Keefe v. Grenke, 170 Ariz. 460, 465, 825 

P.2d 985, 990 (App. 1992); accord Leonard, 219 F.3d at 31. 

Neither is there a Rule 15(c) mistake when “defendants [are] 
11

added because of a new legal theory” or “to replace fictitious 

defendants.” Servs. Holding Co. v. Transam. Occidental Life 

Ins. Co., 180 Ariz. 198, 209, 883 P.2d 435, 446 (App. 1994). 

Lack of knowledge as to the appropriate defendant — as opposed 

to a mistaken belief that a defendant is liable — does not 

constitute a Rule 15(c)(2) mistake. 

¶22 Thus, the superior court typically must determine, 

through reference to the original complaint, analysis of 

affidavits or other evidence submitted by the parties, and by 

applying common sense, whether the new defendant truly was 

omitted because of a “mistake concerning the identity of the 

proper party.” It is the plaintiff’s burden to establish the 

requisite mistake. Leonard, 219 F.3d at 28; see also Levinson 

v. Jarrett ex rel. County of Maricopa, 207 Ariz. 472, 476 ¶ 13, 

88 P.3d 186, 190 (App. 2004) (discussing the plaintiff’s failure 

to prove a mistake). 

¶23 In the case at hand, the superior court correctly 

determined that Tyman had not discharged her burden of 

demonstrating mistake. Indeed, the affidavits of her counsel, 

confirmed by counsel’s statements at oral argument, make plain 

that no mistake concerning the identity of the proper parties 

was made in this case. When the initial complaint was filed, 

plaintiff did not know or think she knew that the original 

defendants were liable for her injuries. Rather, she believed 
12

that the original defendants were not liable, and she was simply 

unaware of who was. Just as naming a “John Doe” defendant in 

the initial complaint is not a Rule 15(c)(2) mistake, it is not 

a mistake to name placeholder defendants while the plaintiff 

attempts to identify the appropriate parties. See Garrett v. 

Fleming, 362 F.3d 692, 696 (10th Cir. 2004); Baskin v. City of 

Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998); Servs. Holding 

Co., 180 Ariz. at 209, 883 P.2d at 446. 

D.

¶24 Tyman argues that because her counsel acted with 

reasonable diligence during the limitations period and could not 

discover the responsible parties, Rule 15(c)(2) relation back 

should be allowed despite the absence of a cognizable mistake. 

But this argument conflates the “discovery” rule for tolling the 

statute of limitations — under which the statute does not begin 

to run until a plaintiff could reasonably have discovered the 

identity of a responsible defendant, see Walk v. Ring, 202 Ariz. 

310, 315-16 ¶¶ 20-23, 44 P.3d 990, 995-96 (2002) — with the 

mistake requirement of Rule 15(c)(2). Rule 15(c)(2) requires a 

mistaken belief at the time of filing that a defendant is 

appropriately named, as well as subsequent discovery that there 

was a mistake in identification. Rule 15(c)(2) is not satisfied 
13

when the plaintiff simply has no knowledge of the identity of 

the appropriate defendant when filing the original complaint.1

 

E. 

¶25 Tyman also suggests, citing Ritchie and the 

Supplemental State Bar Committee Note to Rule 15(c)(2), that 

relation back is allowed without regard to mistake whenever a 

new party is served within 120 days of the expiration of the 

statute of limitations. Although certain language in Ritchie

and the Note provide superficial support to this argument, it 

fails. 

¶26 Ritchie did not concern the “mistake” requirement of 

Rule 15(c)(2). Rather, Ritchie addressed language in a prior 

version of the Rule that required that the added defendant 

obtain the notice required by the Rule “within the period 

provided by law for commencing the action against him.” 165 

Ariz. at 463, 799 P.2d at 804. We interpreted the phrase to 

mean the limitations period plus any additional time given by 

 

1

 A plaintiff’s diligence in discovering the identity of a 

defendant may be relevant to the trial court’s exercise of 

discretion in considering a motion to amend a complaint pursuant 

to Arizona Rule of Civil Procedure 15(a)(1). See generally 6A 

Wright, Miller & Kane, supra, § 1498 (discussing Fed. R. Civ. P. 

15(a)). In this case, however, Tyman filed the amended 

complaint before a responsive pleading or motion for summary 

judgment was filed; the amendment was thus filed as of right and 

required no leave of the court. See Ariz. R. Civ. P. 15(a)(1). 
14

the Rules of Civil Procedure to serve the complaint.2 Id. at 

465-68, 799 P.2d at 806-09.3 Ritchie did not deal with the 

Rule’s express requirement of a mistake, let alone abrogate it. 

¶27 Nor does the Supplemental State Bar Committee Note to 

Rule 15(c), which simply explains the holding in Ritchie, 

achieve that result indirectly. This is made plain by the 1996 

amendment to Rule 15(c), which codified the holding in Ritchie 

while retaining the “mistake” language in Rule 15(c)(2).4 If 

Ritchie had done away with the mistake requirement, there would 

 

2

 When Ritchie was decided, Arizona Rule of Civil Procedure 

6(f) gave the plaintiff one year to serve a complaint after it 

was filed. 165 Ariz. at 466, 799 P.2d at 807. 

3

 In so holding, we declined to follow Schiavone v. Fortune, 

477 U.S. 21 (1986), which interpreted Federal Rule 15(c) as 

requiring that added defendants receive notice of a claim before

the statute of limitations expired. Id. at 465-68, 799 P.2d at 

806-09. 

4

 Before 1996, Arizona Rule 15(c) required that an added 

defendant receive notice of the plaintiff’s claim “within the 

period provided by law for commencing the action against the 

party to be brought in by amendment.” Ariz. R. Civ. P. 15(c), 

16 A.R.S. Ann. (Supp. 1996). Rule 15(c) was amended in 1996 and 

now requires that the notice and knowledge be imparted within 

the limitations period “plus the period provided by Rule 4(i) 

for service of the summons and complaint.” Ariz. R. Civ. P. 

15(c). 

Federal Rule 15(c) was similarly amended in 1991 to address 

the Schiavone holding, and now requires that the knowledge and 

notice required under Rule 15(c) be imparted to the new 

defendant “within the period provided by Rule 4(m) for service 

of the summons and complaint.” See Fed. R. Civ. P. 15 advisory 

committee’s note, 1991 amend. 
15

have been no reason to retain the word “mistake” in the 1996 

amendment. 

¶28 We therefore conclude that the mistake requirement 

survived Ritchie. Levinson, 207 Ariz. at 475 ¶ 12, 88 P.3d at 

189 (“The plain language of [Rule 15(c)(2)] still requires [a 

mistake]; Ritchie did not change it.”). And, because Tyman 

cannot establish the requisite mistake in this case, the 

superior court correctly rejected her relation-back argument. 

III. 

¶29 For the reasons above, we conclude that Tyman’s 

amended complaint does not relate back to the date of the 

original complaint. The superior court therefore correctly 

concluded that the statute of limitations barred the amended 

complaint against the New Defendants. The judgment of the 

superior court is affirmed; the memorandum decision of the court 

of appeals is vacated. 

 __________________________________ 

 Andrew D. Hurwitz, Justice 

CONCURRING: 

_______________________________________ 

Ruth V. McGregor, Chief Justice 

_______________________________________ 

Rebecca White Berch, Vice Chief Justice 
16

_______________________________________ 

Michael D. Ryan, Justice 

_______________________________________ 

W. Scott Bales, Justice