was transferred to our docket. Shortly thereafter, a conference was held to determine the status of the case. Following the conference, we ordered that any motion for summary judgment be filed by March 3, 1980. Three weeks later, on February 29, 1980, plaintiff moved to amend. The motion was denied without prejudice for failure to comply with local court rules, and was renewed on March 25, 1980.
A motion for leave to amend is committed to the sound discretion of the trial court. E. g., Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S. Ct. 795, 802, 28 L. Ed. 2d 77 (1971); Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962); Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470, 492 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 41 (1979). See generally, 3 Moore's Federal Practice P 15.08 (1980); 6 C. Wright & A. Miller, Federal Practice and Procedure Civil §§ 1484-1488 (1971 & Supp. 1980) (hereinafter cited as Wright & Miller); Annot., 4 A.L.R.Fed. 123 (1970). Leave to amend "shall be given freely when justice so requires," Fed.R.Civ.Pro. 15(a). In deciding such a motion, we are to consider factors like untimeliness, undue delay, bad faith, futility, and prejudice to adverse parties. See, e.g., Foman, 371 U.S. at 182, 83 S. Ct. at 230; Skehan, 590 F.2d at 492 (citing 3 Moore's Federal Practice P 15.08(4) at 91-94).
In this case, the motion was filed almost three years after the complaint, and over one and one-half years after plaintiff's counsel served his appearance. The motion therefore is untimely.
The attempted amendment is not based on newly discovered information or any other recent event. Instead, it rests on information known to plaintiff and alleged in the original complaint. Compare Complaint with Motion to Amend, Exhibit "A" (Amended Complaint). Thus, the motion is not merely untimely, it is also delayed. See, e.g., Eisenmann v. Gould-National Batteries, Inc., 169 F. Supp. 862, 863-64 (E.D.Pa.1958) (motion filed 23 months after complaint, based on information known at time of complaint); Darcy v. North Atlantic & Gulf S.S. Co., 78 F. Supp. 662, 664 (E.D.Pa.1948) (motion filed 19 months after pleading, information known at time of pleading, no excuse for delay); Friedman v. Transamerica Corp., 5 F.R.D. 115, 116 (D.Del.1946) (motion filed over 16 months after complaint, fourth attempt to amend); 6 Wright & Miller, supra, Civil § 1488, at 438 ("(A) motion to amend should be made as soon as the necessity for altering the pleading becomes apparent."). See generally Annot., 4 A.L.R.Fed. 123 (1970). Counsel makes no effort to explain or excuse the delay.
As to the new defendants other than Mr. Patrizio, the motion is presently futile. For the same reasons we granted summary judgment of the original complaint, we would grant a Rule 12(b)(6) motion to dismiss the amendment complaint.
Finally, the timing of the motion raises independent problems of prejudice and futility. This prejudice results first from the passage of time between cause of action and attempted amendment over three years. See, e.g., 6 Wright & Miller, supra, Civil § 1488, at 439-41 ("risk of substantial prejudice increases with the passage of time" id. 439). Furthermore, during this time the statute of limitations has expired. The applicable period is two years. Pa.Stat.Ann. tit. 12, § 34 (Purdon 1953) (two-year limitation for non-fatal personal injuries), repealed, Judiciary Act Repealer Act, Act No. 1978-53, § 2(a), 1978 Pa.Laws 202, 264; see, e.g., Swietlowich v. County of Bucks, 610 F.2d 1157, 1162 (3d Cir. 1979) (applicable limitation determined by borrowing from state statute); Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470, 476-77 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 41 (1979); id. 477 n.12 (applicable statute is that in effect when action is filed); Mitchell v. Hendricks, 431 F. Supp. 1295, 1298 (E.D.Pa.1977). See also 42 Pa.Cons.Stat.Ann. § 5524(2) (Purdon 1980) (current statute, two-year limitation for personal injuries due to wrongful act or neglect).
Thus, if the proposed amendments relate back to the date of the original complaint, the new defendants would be extremely prejudiced. Under Fed.R.Civ.Pro. 15(c), amendments changing a party relate back only if the additional party received such notice that prejudice is avoided, and he knew or should have known that, but for a mistake in identity, he would have been a defendant. Plaintiff's pleadings demonstrate that there was no mistake in identity. Thus, the amendments would not relate back, the action would be barred if limitations were pleaded, and amendment would be futile.
Therefore, because the Motion to Amend is untimely, unexcusably delayed, futile, and prejudicial, and because plaintiff offers only a conclusory reason for amendment, the motion is DENIED.