No. 84-555 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985

ARLYN J. SOOY, Plaintiff 

### and Appellant,

PETROLANE STEEL GAS, INC., 

### etal., Defendants

### and Respondents,

APPEAL FROM: DistrictCourt

### of the Fifth

### Judicial District, 

### In and 

### forthe County

### of Beaverhead, The Honorable

### Frank Davis, 

### Judge presiding.

COUNSEL OF RECORD: ForAppellant: Burgess, 

### Joyce & Whelan; Thomas F. 

### Joyce argued, Butte, Montana For Respondents: Corette, Smith, Pohlman & Allen; LisaSwan 

### argued for

### Petrolane Steel Gas, Butte, 

### Pllontana Poore, Roth & Robinson; I. Richard Orizotti

### argued 

### for Exxon Corp., Butte, Montana Henningson & 

### Purcell; JamesE. Purcell

### argued for ShellOil, Butte, Montana

Submitted: Nay 

### 30, 1935 Decided: $Jovember 12, 

### 19 35

Filed:

# q)J$f" f1,;,

### jf4j$jjjMr. JusticeJohn 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. Wereverse. On June 19, 1980, Sooy attempted to light the pilot light on the hot water heater in thebasement 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, thatthese defendants failed toadd an odorizingagent tothe propane, and as a result, he could not 

### smell the escaping propane when he lit thematch that caused the explosion. In addition toPetrolane Steel Gas, Inc. and Petrolane SteelGas Service, Sooy named, by fictitious names, other defendants whose negligence may have caused him injury. He alsoalleged damages tohisreal property. The 

### two named defendants

### were served on June 22, 1983, and responded on July 19, 1983, by filinga motion todi.smiss and to change venue to Beaverhead County. The motion to change venue was granted. Shortlythereafter, Sooy learned thatExxon, ShellOil, 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 fournewly 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 todismiss 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 atwhich Sooy moved to file an amended complaint. The amended complaint changed the names of the John Does tothe 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 arepresented for

### review: (1) Whether the District Court erred in denying Sooy leave to

### filean 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 tofilean amended complaint. Rule 15(a) M.R.Civ.P. provides that "A 

### partymay amend hispleading once

as a matter of course at any 

### time before a responsive pleading 

### is served

# ..." At

### the 

### time Sooy moved for leaveto 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 SteelGas Servicedid fileresponsive pleadings and thus, as

### tothem, appel-lantwould not have been abletoamend his complaint "as a matter of course." However, Rule 15(a) furtherprovides thatonce 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 shallbe freelygiven when justice 

## - so requires." (Emphasis added.) In Lien v. Murphy Corporation (Mont. 1982), 

### 656 P.2d 

### 804, 39 St.Rep. 2252, the plaintiff moved toamend nine years afterthe complaint was originally filed. The 

### DistrictCourt denied the motion 

### to amend. Wereversed, finding that there

was no bad faith, dilatorymotive, orundue delay on thepart 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 thepresent 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 complaintwas motivated by bad faithora 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 amendedcomplaint relates back to the filing 

### of the original complaint asprovided 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 theplaintiff had positively identified two defendants. Three other defendants whom the plaintiff had not positively identified were desic~natedby 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 statuteof 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 fictitiouslynamed defendants. We realize now that indecidingVincent 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 partyby a fictitiousname. 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 

### isdiscovered, the pleadings or proceedings may be amended accordingly. No case decided by this Court prior to Vincent 

### v. Edwards had determined whether a fictitiouslynamed defendant 

### is a party 

### to the action from the filing of the original complaint. We now ho1.d thatwhen 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 fictitiousparty on thedate theoriginal 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 aspresently identified but formerly fictitiouslynamed defendants, the amended complaint does not relate back to the date of filing the original complaint and the statuteof limitations 

### is not tolled asto 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. StateFarm 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 ruleprovides: 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 tobe 

### set forthintheoriginal pleading, the amendment relates back to the date of the original pleading. An amendment changingtheparty againstwhom

### 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 tobe 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 fora mistake concerning the identity of the proper party, theaction would have been brought againsthim. 

# . . It 

### willbe seen from a reading of Rule 15(c),that an 

### amended co~nplaintrelates 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, relatestothose situationswhere theparty 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, at565, where 

### it said: The relation-back doctrine has been used todetermine the 

### time of cornmencemont of an action for the purpose of the statute of limitations. Normally, the statuteof 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 statutoryperiod had elapsed, 

### we observed that "a defendant unaware of the suit againsthim by a fictitiousname 

### is inno worse position if, in addition to substitutinghistruename, the amendment makes otherchanges inthe allegationson the basis of the same genera1 

### set of facts. 

# . .." (Citing authority.) 

### Conversely, "a plaintiff who did not know of thetruename atthe

### timetheoriginal complaintwas filed

# . . .has atleastas great a need for the liberality of amendment

# .

# .. as a plaintiff who knew the defendant's name throughout, and he should notbepenalized merely because he was compelled to

### resort tohis statutory rightof using a fictitiousname." We 

### thereforereverse ourholding inVincent 

### v. Edwards, supra, and determine that when a fictitious party 

### is later identified, the amendment settingforthhistruename relates back to

### the date of the filingof the original pleading. In this case, 

### it means that the statuteof limitations had not

run against those fictitious defendants who where later identified by theirtruenames. 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 inthe action orwho has notbeen served within threeyears afterthe has CLC~~D.I* 

# -J~H1:!+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 entitledtodismissal. Inthiscase, the original actionwas filed on June 17, 1983. 

### The additional summons against thenewly identified defendants was issued on June 11, 

### 1984, within theone year period. We therefore reverse the summary judgments granted in this case and remand the cause for further proceedings in accordancewith thisopinion.

FJe concur: 

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