No. 84-555 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

ARLYN J. SOOY, 

Plaintiff and Appellant, 

PETROLANE STEEL GAS, INC., 

et al., 

Defendants and Respondents, 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Burgess, Joyce & Whelan; Thomas F. Joyce argued, 

Butte, Montana 

For Respondents: 

Corette, Smith, Pohlman & Allen; Lisa Swan argued 

for Petrolane Steel Gas, Butte, Pllontana 

Poore, Roth & Robinson; I. Richard Orizotti argued 

for Exxon Corp., Butte, Montana 

Henningson & Purcell; James E. Purcell argued for 

Shell Oil, Butte, Montana 

Submitted: Nay 30, 1935 

Decided: $Jovember 12, 19 35 

Filed: q)J$f" f 1, ;, jf4j$jjj 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a judgment of the District 

Court, Fifth Judicial District, Beaverhead County, denying 

plaintiff, Arlyn J. Sooy's motion for leave to file an 

amended complaint and granting respondents' motions for 

summary judgment. We reverse. 

On June 19, 1980, Sooy attempted to light the pilot 

light on the hot water heater in the basement of his home in 

Wisdom. An explosion ensued and he was seriously injured. 

On June 17, 1983, he filed a complaint in Silver Bow County. 

In the complaint Sooy alleged that he bought propane from 

Petrolane Steel Gas, Inc. and Petrolane Steel Gas Service, 

that these defendants failed to add an odorizing agent to the 

propane, and as a result, he could not smell the escaping 

propane when he lit the match that caused the explosion. In 

addition to Petrolane Steel Gas, Inc. and Petrolane Steel Gas 

Service, Sooy named, by fictitious names, other defendants 

whose negligence may have caused him injury. He also alleged 

damages to his real property. 

The two named defendants were served on June 22, 1983, 

and responded on July 19, 1983, by filing a motion to di.smiss 

and to change venue to Beaverhead County. The motion to 

change venue was granted. 

Shortly thereafter, Sooy learned that Exxon, Shell Oil, 

Petrolane Supply and Perry Gas Products were the reFiners of 

propane furnished to named defendants and that they were 

responsible for adding the odorant to the propane at the 

refinery. Therefore, on June 11, 1984, he had additional 

summons issued, and the summons, a copy of the original 
complaint, and notice were served on June 14, 1984 on G. T. 

Corporation, the designated agent for service of process of 

the four newly discovered defendants. Exxon was made a party 

as John Doe No. 3; Shell Oil as John Doe No. 4; Petrolane 

Supply as John Doe No. 5, and Perry Gas as John Doe No. 6. 

Each of these four defendants filed a motion to dismiss 

and moved for summary judgment. They argued that none of 

them knew of the action until June 14, 1984, and that the 

statute of limitations had run on Sooy's claim against them 

on June 19, 1983. 

On August 15, 1984, a hearing was held at which Sooy 

moved to file an amended complaint. The amended complaint 

changed the names of the John Does to the true names of the 

four corporate defendants, realleged Count One, deleted Count 

Two relating to property damage, and substituted a strict 

liability claim arising out of the facts set forth in the 

initial complaint. On August 30, 1984, the District Court 

denied the motion to file an amended complaint and granted 

defendants' motions for summary judgment. 

Two issues are presented for review: 

(1) Whether the District Court erred in denying Sooy 

leave to file an amended complaint. 

(2) Whether the District Court erred in finding that 

the statute of limitations, S 27-2-204, MCA, barred Sooy's 

claim against Exxon, Shell Oil, Petrolane Supply, and Perry 

Gas. 

We find first that the District Court did err in 

denying Sooy leave to file an amended complaint. Rule 15 (a) 

M.R.Civ.P. provides that "A party may amend his pleading once 

as a matter of course at any time before a responsive 

pleading is served . . . " At the time Sooy moved for leave 
to file an amended complaint, defendants Exxon, Shell, 

Petrolane Supply, and Perry Gas had made no responsive 

pleading. Therefore, appellant should have been allowed to 

amend his complaint against these four defendants regardless 

of whether the court later felt bound to grant summary 

judgment. Defendants Petrolane Steel Gas, Inc. , and 

Petrolane Steel Gas Service did file responsive pleadings and 

thus, as to them, appel-lant would not have been able to amend 

his complaint "as a matter of course." However, Rule 15(a) 

further provides that once a responsive pleading is served "a 

party may amend his pleading only by leave of court or by 

written consent of the adverse party; - and leave 

shall be freely given when justice - so requires." (Emphasis 

added.) In Lien v. Murphy Corporation (Mont. 1982), 656 P.2d 

804, 39 St.Rep. 2252, the plaintiff moved to amend nine years 

after the complaint was originally filed. The District Court 

denied the motion to amend. We reversed, finding that there 

was no bad faith, dilatory motive, or undue delay on the part 

of the movant. In addition, we found that the amended 

complaint stemmed from the same occurrence as the original 

complaint and would cause only minimal prejudice to the 

defendant. In the present case allowing an amended complaint 

would not have prejudiced the two defendants who filed 

responsive pleadings, as Sooy merely sought to add an 

additional theory of liability based on the same operative 

facts. Further, there is no evidence that Sooy's motion to 

amend the complaint was motivated by bad faith or a desire to 

delay. Under these circumstances we find that the District 

Court erred by not granting Sooy leave to amend. With 

respect to the originally named defendants, P~trolane Steel 

Gas, Inc., and Petrolane Steel Gas Service, the amended 
complaint relates back to the filing of the original 

complaint as provided by Rule 15(c), M.R.Civ.P. 

The second issue presented by this case requires that 

we re-examine Vincent v. Edwards (1979), 184 Mont. 92, 601 

P.2d 1184. In that case when the original complaint was 

filed the plaintiff had positively identified two defendants. 

Three other defendants whom the plaintiff had not positively 

identified were desic~nated by fictitious names pursuant to 

§ 25-5-103, MCA. When the identities of these three 

defendants were discovered the plaintiff moved to amend the 

original complaint in order to substitute the real names for 

the fictitious names. The motion was granted and an amended 

complaint was filed. The three fictitiously named defendants 

moved for summary judgment on the grounds that the statute of 

limitations had run on plaintiff's claim under 5 27-2-204(1), 

MCA. This Court affirmed the summary judgment on appeal, 

relying on the provisions of Rule 15(c), M.R.Civ.P., as 

applying to fictitiously named defendants. In the case at 

bar, the District Court relied on our holding in Vincent v. 

Edwards, in determining that in this case the statute of 

limitations had run against the plaintiff as to the 

fictitiously named defendants. 

We realize now that in deciding Vincent v. Edwards, we 

did not take into account the status of defendants who are 

named as parties under fictitious names when the original 

complaint has been filed. 

The applicable statute is S 25-5-103, which provides: 

Suing a party by a fictitious name. When 

the plaintiff is ignorant of the name of 

the -defendant, such defendant may be 

designated in any pleading or proceeding 

by any name; and when his true name is 
discovered, the pleadings or proceedings 

may be amended accordingly. 

No case decided by this Court prior to Vincent v. 

Edwards had determined whether a fictitiously named defendant 

is a party to the action from the filing of the original 

complaint. We now ho1.d that when a complaint sets forth a 

cause of action against a defendant designated by fictitious 

name and his true name is thereafter discovered and 

substituted by amendment, the fictitiously named defendant is 

considered a party to the action from its commencement so 

that the statute of limitations stops running as to the 

fictitious party on the date the original complaint is filed. 

Accord, see Olden v. Hatchel (Cal. 1984), 201 Cal.Rptr. 71.5, 

154 Cal.App.3d 1032. But if parties are added by amended 

complaint as new parties and not as presently identified but 

formerly fictitiously named defendants, the amended complaint 

does not relate back to the date of filing the original 

complaint and the statute of limitations is not tolled as to 

such new parties. Anderson v. Allstate Insurance Co. (9th 

Cir.Ca1. 1980), 630 F.2d 677 (applying California law). A 

later identified party, formerly sued under a fictitious 

name, is a party from the beginning. Freeman v. State Farm 

Mutual Automobile Insurance Co. (Cal. 1975), 535 P.2d 341. 

In deciding Vincent v. Edwards, we gave an improper 

interpretation to the provisions of Rule 15 (c) , M.R.Civ.P. 

That rule provides: 

Relationback of amendments. 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 him, the 

party to be brought in by amendment (I-) 

has received such notice of the 

institution of the action that he will 

not be prejudiced in maintaining 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 action would have been brought 

against him. . . 

It will be seen from a reading of Rule 15(c), that an 

amended co~nplaint relates back to the date of the original 

pleading when the amended pleading depends on the same set of 

operative facts as contained in the original pleading. The 

further provision in Rule 15 (c), with respect to amendments 

changing a party, relates to those situations where the party 

asserting the claim has made a mistake concerning the 

identity of the proper party rather than when the party is 

ignorant of the true identity of the proper party. Our 

holding in Vincent v. Edwards with respect to Rule 15(c) 

denies the status of the fictitious party as being in the 

action from the beginning, and in cases such as the one at 

bar, robs the fictitious name statute, S 25-5-103, of its 

efficacy. 

We find ourselves in agreement with the Supreme Court 

of California in Barrington v. A.H. Robbins Co. (Cal. 1985), 

702 P.2d 563, at 565, where it said: 

The relation-back doctrine has been used 

to determine the time of cornmencemont of 

an action for the purpose of the statute 

of limitations. Normally, the statute of 

limitations commences to run regardless 

of the injured party's ignorance of his 

or her cause of action. (Citing 

authority.) In Austin v. Massachusetts 

Bonding & Insurance Co. (1961) 56 Cal.2d 

596, 15 Cal.Rptr. 817, 364 P.2d 681, we 

held that an amended complaint is not 
barred by the statute of limitations, 

even though it substitutes a named party 

for a fictitious defendant, if the 

amended complaint relates back to a 

timely original complaint. Reasoning 

that the defendant was not prejudiced by 

the filing of an amendment after the 

statutory period had elapsed, we observed 

that "a defendant unaware of the suit 

against him by a fictitious name is in no 

worse position if, in addition to 

substituting his true name, the amendment 

makes other changes in the allegations on 

the basis of the same genera1 set of 

facts. . . ." (Citing authority. ) 

Conversely, "a plaintiff who did not know 

of the true name at the time the original 

complaint was filed . . . has at least as 

great a need for the liberality of 

amendment . . . as a plaintiff who knew 

the defendant's name throughout, and he 

should not be penalized merely because he 

was compelled to resort to his statutory 

right of using a fictitious name." 

We therefore reverse our holding in Vincent v. Edwards, 

supra, and determine that when a fictitious party is later 

identified, the amendment setting forth his true name relates 

back to the date of the filing of the original pleading. In 

this case, it means that the statute of limitations had not 

run against those fictitious defendants who where later 

identified by their true names. 

There is protection for fictitiously named defendants 

in the provisions of our Rule 41 (e) , M.R.Civ.P. Under that 

rule any defendant who has not appeared in the action or who 

has not been served within three years after the has 

CLC~~D.I* - J~H 1:!+5 

been commenced is entitled to a dismissal. Moreover, un er 

that rule, unless summons shall have been issued within one 

year of the commencement of the action a defendant is 

entitled to dismissal. In this case, the original action was 

filed on June 17, 1983. The additional summons against the 
newly identified defendants was issued on June 11, 1984, 

within the one year period. 

We therefore reverse the summary judgments granted in 

this case and remand the cause for further proceedings in 

accordance with this opinion. 

FJe concur: n n :<j' '7