1

[Doc. No. 21]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

KEITH BROWNING,

Plaintiff,

v.

SAFMARINE, INC., et al.,

 Defendants.

Civil No. 11-2436 (JHR/JS)

MEMORANDUM OPINION

This matter is before the Court on plaintiff’s “Second 

Motion to Amend Complaint” [Doc. No. 21]. Plaintiff is seeking 

to amend his complaint to substitute Jaco Trader Shipping, Ltd

(“Jaco”) for named defendant Safmarine, Inc. (“Safmarine”). The 

Court received defendants’ response [Doc. No. 23] and the 

parties’ supplemental submissions [Doc. Nos. 34, 36, 37]. The 

Court also heard oral argument. For the reasons to be 

discussed, plaintiff’s motion is GRANTED.

Since the parties are familiar with the facts and 

procedural history of the case, only a brief summary will be set 

forth herein. Plaintiff filed his complaint in New Jersey state 

court on March 10, 2011, and the action was removed to this 

court on April 28, 2011. The named defendants, all represented 

Case 1:11-cv-02436-JHR-JS Document 42 Filed 11/07/12 Page 1 of 12 PageID: 814
2

by the same counsel, are: Safmarine, Inc., Safmarine Container 

Lines, N.V., Maersk Line, A.P. Moller-Maersk A/S and A.P. 

Moller-Maersk Group. The complaint arises out of an accident 

that occurred on March 13, 2008 aboard the vessel Safmarine 

Douala. Complaint ¶10 [Doc. No. 1-2]. Plaintiff alleges that 

at the time of his accident he was a longshoreman employed by 

Delaware River Stevedores. Id. at ¶9. Plaintiff alleges that 

when he filed his complaint he was under the impression that the 

subject vessel was owned by Safmarine. During the course of the 

case defense counsel informed plaintiff that the actual owner 

was Jaco. On July 29, 2011, plaintiff filed his first motion to 

amend his complaint to name Jaco. On October 24, 2011, the 

Court denied the motion on the ground that it was futile. See

October 24, 2011 Order [Doc. No. 16].1 The Court found that 

since plaintiff’s accident occurred on March 13, 2008, and his 

motion to amend was not filed until more than two years later on 

July 29, 2011, the claim against Jaco was barred by the statute 

of limitations. The Court denied plaintiff’s request to “relate 

back” his amended pleading pursuant to Fed. R. Civ. P. 15(c). 

The Court held that although plaintiff argued that notice of the 

filing of the complaint was imputed to Jaco because of its 

identity of interest with the defendants, “plaintiff has not 

supplied evidence of this.” Tr. 18:23-19:1.

 1 The Court’s Oral Opinion denying the motion is contained in the transcript 

of the October 24, 2011 hearing at pp. 16:15-21:5 [Doc. No. 31].

Case 1:11-cv-02436-JHR-JS Document 42 Filed 11/07/12 Page 2 of 12 PageID: 815
3

Subsequent to the Court’s October 24, 2011 Order denying 

plaintiff’s motion to amend, the parties completed fact 

discovery. On May 30, 2012, defendants filed their motion for 

summary judgment. In their motion defendants argued, inter alia, 

that they “did not own or charter the ship [Safmarine Douala].”

Brief in Support of Motion for Summary Judgment at 2 [Doc. No. 

20-1]. They also argued, “none of the defendants . . . had 

anything whatsoever to do with the alleged incident on March 13, 

2008” (id.), and that the owner of the Safmarine Douala was 

“Jaco Trader Shipping Ltd.” Id.

On June 1, 2012, plaintiff filed the instant motion to 

amend. Plaintiff alleges, and defendants do not contest, that 

the facts supporting the motion were learned in discovery taken

after plaintiff’s first motion to amend was denied on October 

24, 2011. Like its first motion to amend, plaintiff’s present 

motion also seeks to add Jaco as a party defendant. Plaintiff 

argues he now presents evidence that supports his contention 

that his amended complaint relates back to the filing of his 

original complaint. Plaintiff argues that because the same law 

firm, Palmer Biezup & Henderson LLP (“Palmer”), represented Jaco 

and the defendants, the firm’s knowledge regarding the filing of 

plaintiff’s complaint should be imputed to Jaco.

Case 1:11-cv-02436-JHR-JS Document 42 Filed 11/07/12 Page 3 of 12 PageID: 816
4

DISCUSSION

The parties agree that unless the proposed amended 

complaint relates back the amendment naming Jaco is futile 

because it is barred by the statute of limitations. Plaintiff 

acknowledges that his sole basis for arguing the amended 

complaint relates back is Rule 15(c).2

 In relevant part Rule 

15(c) reads as follows:

(1) An amendment to a pleading relates back to the 

date of the original pleading when: 

(A) the law that provides the applicable statute of 

limitations allows relation back;

(B) the amendment asserts a claim or defense that 

arose out of the conduct, transaction, or occurrence 

set out — or attempted to be set out in the original 

pleading; or

(C) the amendment changes the party or the naming of 

the party against whom a claim is asserted, if Rule 

15(c)(1)(B) is satisfied and if, within the period 

provided by Rule 4(m) for serving the summons and

complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will 

not be prejudiced in defending on the merits; and

(ii) knew, or should have known that the action would 

have been brought against it, but for a mistake 

concerning the proper party’s identity.

 2 Defendants argue Rule 15(c)(1)(C) relation back is unavailable 

because plaintiff’s motion seeks to add Jaco, rather than to 

substitute Jaco for an existing party defendant. Defendants’ 

Opposition Brief at 2 [Doc. No. 23] (citing Jordan v. Tapper, 143 

F.R.D. 567, 573-74 (D.N.J. 1992)). However, the Third Circuit 

construes Rule 15(c) to permit the addition or substitution of a 

defendant. See Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004). 

In any event, the argument is moot because plaintiff clarified his 

intent to substitute Jaco for Safmarine.

Case 1:11-cv-02436-JHR-JS Document 42 Filed 11/07/12 Page 4 of 12 PageID: 817
5

Pursuant to Rule 15(c)(1)(C) relation back is available if 

a proposed defendant received actual or constructive notice of 

the action within 120 days of the filing of a complaint. Id.

(citing Fed. R. Civ. P. 4(m)). The Rule also requires that the 

proposed defendant have actual or constructive knowledge that he 

or she would have been named but for a mistake on the part of 

the plaintiff.3

As to the notice that a proposed defendant must receive 

within 120 days of the filing of the complaint, the notice is 

sufficient when a party has a reasonable expectation of being 

named a defendant after learning about the litigation through 

some informal means. Singletary v. Pa. Dep’t of Corr., 266 F.3d 

186, 195 (3d Cir. 2001). However, “the notice received must be 

more than notice of the event that gave rise to the cause of 

action; it must be notice that the plaintiff has instituted the 

action.” Id.

The Third Circuit permits an inference of timely notice by 

way of the “shared attorney” method or an “identity of interest” 

method. See Ward v. Taylor, 250 F.R.D. 165, 168 (D. Del. 2008) 

(citing Singletary, 266 F.3d at 196-200). “[T]he relevant 

inquiry under [the shared attorney] method is whether notice of 

the institution of this action can be imputed to [the defendant 

 3

Defendants do not dispute that the proposed amendment meets the 

threshold requirement of “assert[ing] a claim or defense that arose 

out of the conduct, transaction, or occurrence set out” in the first 

amended complaint. See Rule 15(c)(1(B).

Case 1:11-cv-02436-JHR-JS Document 42 Filed 11/07/12 Page 5 of 12 PageID: 818
6

sought to be named] within the relevant 120 day period . . . by 

virtue of representation [he] shared with a defendant originally 

named in the lawsuit.” Garvin v. City of Philadelphia, 354 F.3d 

215, 223 (3d Cir. 2003)(alterations in original)(quoting 

Singletary, 266 F.3d at 196). The “identity of interest” 

method, on the other hand, “requires the plaintiff to 

demonstrate that the circumstances surrounding the filing of the 

lawsuit permit the inference the notice was actually received by 

the parties sought to be added as defendants during the relevant 

time period.” Miller v. Hassinger, 173 Fed. Appx. 948, 956 (3d 

Cir. 2006) (per curiam) (citing Singletary, 266 F.3d at 197-200; 

Garvin, 354 F.3d at 227).

Plaintiff is only pursuing the shared attorney method of 

relation back. Relevant facts related to this issue are set 

forth in the affidavits of Kevin G. O’Donovan, Esquire, and 

Richard Q. Whelan, Esquire, partners with the Palmer law firm. 

See Doc. No. 34. According to Mr. O’Donovan’s affidavit, on 

March 13, 2008, the same date of plaintiff’s accident, he was 

retained by Jaco to investigate the incident. See O’Donovan 

Affidavit ¶1. Mr. O’Donovan further alleges that on March 24, 

2011, after the statute of limitations expired, he was 

instructed to “close the file” which was done on March 25, 2011. 

Id. ¶2. Approximately two weeks later Mr. Whelan was retained 

to represent the defendants in the case. See Whelan Affidavit 

Case 1:11-cv-02436-JHR-JS Document 42 Filed 11/07/12 Page 6 of 12 PageID: 819
7

¶2. The shared attorney method assumes that where an originally 

named party and a party later sought to be added share 

representation within 120 days of the filing of a complaint, the 

shared attorney will likely inform the latter party of the 

likelihood that he may be joined in the action. See Singletary, 

266 F.3d at 196. The facts of record clearly demonstrate that 

the Palmer law firm had knowledge of this lawsuit within 120 

days after the case was first filed in state court on March 10, 

2011. This is evident by the fact that the firm was retained to 

represent defendants on April 7, 2011. Thus, since the Palmer 

firm represented Jaco when it gained this knowledge, the 

knowledge is imputed to Jaco. As defendants argue, “[t]he 

premise of the shared-representation method is that the lawyer 

can be expected to advise the co-client (the putative defendant) 

that the lawsuit has been filed and that the co-client is likely 

to be brought into the lawsuit once the plaintiff realizes that 

he has mistakenly sued the wrong party.” Defendants’ Response to 

Plaintiff’s Supplemental Brief in Support of Second Motion to 

Amend Complaint at 2 (“Defs.’ Supp. Brief”)[Doc. No. 37]. Even 

though Palmer closed its Jaco file on March 25, 2011, it can be 

reasonably expected that promptly after the firm was retained to 

represent defendants, the firm is likely to have notified Jaco 

that plaintiff’s complaint was filed. Given the allegations in 

plaintiff’s complaint, it is also reasonable to expect that

Case 1:11-cv-02436-JHR-JS Document 42 Filed 11/07/12 Page 7 of 12 PageID: 820
8

defense counsel advised Jaco that it would soon be named a 

defendant after plaintiff realized his mistake in failing to 

name it. This is especially true since defense counsel knew or 

should have known that it was possible that plaintiff’s 

complaint was filed within the applicable statute of 

limitations, but was not served until after the statute of 

limitations expired on March 13, 2011. Further, defense counsel 

knew or should have known that although the statute of 

limitations had already run on March 25, 2011 when Mr. O’Donovan 

closed his file, this did not necessarily mean that plaintiff’s 

complaint was not filed before the statute of limitations ran.

Defendants argue the knowledge of the Palmer law firm 

should not be imputed to Jaco because the firm did not represent 

Jaco after March 25, 2011. This argument is premised on the 

Palmer firm’s belief that it did not represent Jaco after it 

“closed its file.” The Court disagrees. Defense counsel avers 

it represented Jaco from March 13, 2008 to March 24, 2011 for 

the purpose of investigating plaintiff’s accident. O’Donovan 

Affidavit ¶2. Counsel further avers it closed its file on March 

25, 2011. Id. ¶3. However, although Mr. O’Donovan avers “[t]he 

file was closed effective March 25, 2011” (id.), he provides no 

information as to when or how he notified Jaco of the 

termination of the attorney-client relationship. “Once an 

attorney undertakes to represent a client, he cannot withdraw 

Case 1:11-cv-02436-JHR-JS Document 42 Filed 11/07/12 Page 8 of 12 PageID: 821
9

from employment without properly advising his client of his 

intention to do so.” In re Schwartz, 99 N.J. 510, 519 (1985); 

see also R.P.C. 1.16(d) (requiring that a lawyer give 

“reasonable notice” to a client upon termination of 

representation). Defense counsel has not adequately shown that 

it terminated its representation of Jaco as of April 7, 2011 or

soon afterwards. The Court does not accept the argument that 

when Mr. O’Donovan closed his file he automatically and 

instantaneously stopped representing Jaco. For the purpose of 

plaintiff’s motion, the Court finds there was at least an 

implied attorney-client relationship between counsel and Jaco on 

or about April 7, 2011, and for a reasonable time period 

thereafter. See Schwartz, 99 N.J. at 517 (“[T]he fiduciary 

obligation of a lawyer applies to persons who, although not 

strictly clients, he believes or has reason to believe rely on 

him.”); see also Bell v. Cumberland County, C.A. 09-6485 

(JHR/JS), 2012 WL 1900570, at *9 (D.N.J. May 23, 2012) (citing 

the plaintiff’s reasonable belief in the attorney’s continued 

representation); Robinson v. Hornell Brewing Co., C.A. No. 11-

2183 (NLH/JS), 2012 WL 71730, at *2 (D.N.J. Jan. 10 

2012)(citations omitted)(“[T]he attorney-client relationship can 

be created in the absence of an express agreement and may be 

Case 1:11-cv-02436-JHR-JS Document 42 Filed 11/07/12 Page 9 of 12 PageID: 822
10

inferred from the conduct of the attorney and client or by 

surrounding circumstances.”).4

Plaintiff has shown that Jaco and defendants were 

represented by the same law firm within 120 days of the 

institution of this action, and that the firm had knowledge of 

the filing of this lawsuit within 120 days after it was filed. 

Accordingly, the Court finds that plaintiff may use the “shared 

attorney” method to impute notice of the action to Jaco pursuant 

to Rule 15(c)(1)(C). The Court also finds that Jaco will not be 

prejudiced by defending itself on the merits.5

Defendants rely on Singletary and Garvin in their 

opposition. In both cases, however, the court denied relation 

back because the shared attorney did not represent the proposed 

additional defendants within 120 days of the institution of the 

action as required by Rule 15(c)(1)(C). Singletary, 266 F.3d at

197; Garvin, 354 F.3d at 223-24.

 4

It is not insignificant that only approximately two weeks after the 

Palmer firm closed its Jaco file, it was hired to represent defendants 

in this litigation. Although it may be reasonable to hold that after 

an extended period of time an attorney-client relationship ceases 

after a law firm closes its file, this did not occur here. In this 

case the Palmer firm learned of this lawsuit only two weeks after it 

closed its Jaco file.

5 Jaco will not be prejudiced by its joinder because there is no 

contention that any relevant evidence or witnesses have been lost. 

Further, Jaco’s law firm (Palmer) has been defending the case from its 

outset and is obviously familiar with all relevant facts and issues. 

The Court rejects defendants’ argument that to date it has not been 

defending the case “on the merits.” This is evidenced by the fact, 

inter alia, that defendants conducted a defense medical examination of 

plaintiff. 

Case 1:11-cv-02436-JHR-JS Document 42 Filed 11/07/12 Page 10 of 12 PageID: 823
11

Having found Rule 15(c)(1)(C)’s notice provision satisfied 

as to Jaco, the Court must determine whether Jaco “knew or 

should have known that the action would have been brought 

against it, but for a mistake concerning the proper party’s 

identity.” See Rule 15(c)(1)(C)(ii); Krupski v. Costa Crociere

S.p.A., 130 S. Ct. 2485, 2493 (2010). “[The Rule] asks what the

prospective defendant knew or should have known during the Rule 

4(m) period, not what the plaintiff knew or should have known at 

the time of filing [his or] her original complaint.” Krupski,

130 S. Ct. at 2493. “Information in the plaintiff’s possession 

is relevant only if it bears on the defendant’s understanding of 

whether the plaintiff made a mistake regarding the proper 

party’s identity.” Id. at 2493-94; see also Arthur v. Maersk, 

Inc., 434 F.3d 196, 208 (3d Cir. 2006) (“A ‘mistake’ is no less 

a ‘mistake’ when it flows from lack of knowledge as opposed to 

inaccurate description.”).

Plaintiff’s complaint alleges injuries arising out of an 

incident that occurred on the Safmarine Douala. In his 

complaint, plaintiff identifies as defendants the entities that 

“owned, managed, operated, chartered, possessed, and/or 

controlled” the vessel. Complaint ¶7. Plaintiff’s complaint 

plainly intended to name as defendants all entities having any 

connection to the vessel, including its owner. As the apparent 

actual owner of the Safmarine Douala, the Court finds that Jaco 

Case 1:11-cv-02436-JHR-JS Document 42 Filed 11/07/12 Page 11 of 12 PageID: 824
12

knew or should have known that, but for a mistake on plaintiff’s 

part, it would have been named as a defendant in the complaint. 

Accordingly, the Court finds that plaintiff meets Rule 

15(c)(1)(C)(ii)’s mistake provision.

CONCLUSION

For all the foregoing reasons, the Court finds that 

plaintiff’s proposed amended complaint naming Jaco as a 

defendant relates back under Rule 15(c)(1)(C). Accordingly, 

plaintiff’s “Second Motion to Amend Complaint” is GRANTED6 and 

plaintiff is granted leave to substitute Jaco Trader Shipping,

Ltd. for Safemarine, Inc. in his amended complaint.7

/s/Joel Schneider

JOEL SCHNEIDER

United States Magistrate Judge

Dated: November 7, 2012

 6 The Court’s Order granting plaintiff’s motion was entered on October 

31, 2012.

7 Defendants argue that if the Court grants plaintiff’s motion all 

defendants should be dismissed and not just Safmarine. Defendants 

argue plaintiff made the same mistake as to all defendants that he did 

as to Safmarine. The Court rejects this argument. The record in the 

case demonstrates that when plaintiff filed his complaint he was under 

the impression that Safmarine owned the vessel. The other defendants 

were not just named in their capacity as an owner. Thus, the mistake 

as to Safmarine is not applicable to the other defendants. As an 

aside, if defendants are correct that they had no involvement with 

plaintiff’s accident, their motion for summary judgment [Doc. No. 20] 

will be granted.

Case 1:11-cv-02436-JHR-JS Document 42 Filed 11/07/12 Page 12 of 12 PageID: 825