Adding a New Party Defendant After the Statute of Limitations Expires

Adding a New Party Defendant after the Statute of Limitations Expires: The State of the Law on the Relation Back Doctrine Pursuant to Section 2-616(d)

By Thomas H. Murphy

Ideally, when filing the original complaint, you have identified and named all defendants who are or could potentially be responsible for your client’s injuries. In reality though, the need to add newly discovered defendants often arises during litigation, either through mistake or, inadvertence, or because of other factors simply beyond your control that are first revealed in discovery. Maybe time simply did not permit ample opportunity to fully investigate before a statute of limitations expired and suit had to be filed, or the current defendants devised a maze of corporate shells to hide assets behind obscure subsidiaries that could only be exposed through discovery. If the applicable statute of limitations has not expired, the solution is simple: present a motion for leave to file an amended complaint naming the newly identified person or entity as a defendant. The current defendants will rarely challenge the addition of new defendants and will have little basis to do so if the motion to amend is made within the time set by the court for amending pleadings, and the newly added defendant will have no basis to challenge the amended pleadings. Unfortunately, often the statute of limitations has expired, making the outcome of any attempted amendment uncertain and the path to overcoming a pleading challenge more complicated. The newly named defendant will almost certainly file a motion to dismiss the amended complaint as time-barred. To defeat the motion to dismiss, you must be able to establish that the amended complaint “relates back” to the original complaint. A firm grasp on the current state of the law on this issue will be essential to defeating the motion to dismiss. Fortunately for plaintiffs faced with this dilemma, the standards associated with the relation back doctrine have recently been relaxed.

In 2002, the Illinois statutory requirements to establish that an amended complaint adding a new party relates back to the original complaint changed to more closely reflect federal law. Because of the statutory amendment and a watershed ruling by the United States Supreme Court, Illinois courts have become more permissive to amendments. The most significant development in the state and federal case law has been the shift from a focus on what the plaintiff knew at the time of filing the original complaint to instead what the new defendant knew or should have known during that relevant time period. Zlatev v. Millette is the most recent example of the Illinois courts’ more liberal treatment of plaintiffs’ attempts to add new parties after the statute of limitations has expired.

The legislative history of Illinois’ relation back statute provides a blueprint for the case law’s current trend. The statute covers not only the addition of new parties but also other amendments such as adding new claims. The Zlatev court addressed the amendment of a new party, governed by Section 616(d), which is the focus of this article.

The current version of Section 616(d) provides in pertinent part:

  1. d) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) the person, within the time that the action might have been brought or the right asserted against him for her plus the time for service permitted under Supreme Court Rule 103(b), received such notice of the commencement of the action that the person will not be prejudiced in maintaining a defense on the…

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Thomas H. Murphy Winter 2017 from Cogan & Power P.C.

Adding a New Party Defendant after the Statute of Limitations Expires: The State of the Law on the Relation Back Doctrine Pursuant to Section 2-616(d).

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If you have been injured in a personal injury or medical malpractice accident, do not hesitate to contact the Chicago accident and injury law firm of Cogan & Power at (312) 477-2500 to schedule a free case consultation, so that we can help you begin the process of recovery as soon as possible. If you cannot come to our offices in downtown Chicago, we will come to you. And because we take cases on a contingency basis, you will not pay any fee unless we get you compensation.