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Schiavone v. Fortune Also Known as Time

December 10, 1984

SCHIAVONE, RONALD A., APPELLANT
v.
FORTUNE ALSO KNOWN AS TIME, INCORPORATED, APPELLEE; LIQUORI, GENARO, APPELLANT, V. FORTUNE ALSO KNOWN AS TIME, INCORPORATED, APPELLEE; DICAROLIS, JOSEPH A., APPELLANT V. FORTUNE ALSO KNOWN AS TIME, INCORPORATED, APPELLEE



On Appeal from the United States District Court for the District of New Jersey

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge.

This is an appeal from three orders of the district court dismissing plaintiffs' complaints for libel. Subject matter jurisdiction in the district court existed pursuant to 28 U.S.C. § 1332. This court has appellate jurisdiction under 28 U.S.C. § 1291.

I.

An article which allegedly libeled plaintiffs appeared in the May 31, 1982 issue of Fortune Magazine. A substantial distribution of that issue occurred on May 19, 1982, at the latest. The New Jersey statute of limitations for libel is one year, running from the date of substantial distribution. See N.J. Stat. Ann. § 2A:14-3. The statute ran in this case, therefore, on May 19, 1983, at the latest. Plaintiffs filed complaints on May 9, 1983. Those complaints named "Fortune" as the sole defendant.

On May 20, 1983, plaintiffs mailed the complaints to the New Jersey registered agent for Time, Inc. ("Time"). Fortune is a trademark and an internal division of Time. The complaints were received on May 23, 1983, and Time refused to accept service because it was not named as a party. Plaintiffs do not urge that Fortune is a separate legal entity with the capacity to be sued.

On July 19, 1983, plaintiffs amended their complaints to name as defendant "Fortune, also known as Time, Incorporated," rather than simply "Fortune." The amended complaints were served by certified mail on July 21, 1983. Time then moved to dismiss plaintiffs' complaints. The district court granted defendants' motion on statute of limitations grounds, holding that the amended complaints did not relate back to the original filing date. Subsequently, a timely motion for reconsideration was denied.

II.

The district court applied Fed. R. Civ. P. 15(c) to determine whether the amended complaint would relate back to the original filing date. Rule 15(c) in pertinent part provides:

An amendment changing the party against whom a claim is asserted relates back if . . ., within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) 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.

The district court concluded that, since Time did not have notice of the institution of the actions until May 23, 1983, which was after the statute of limitations had run, the amendment could not relate back under rule 15(c). Thus, the court held that plaintiffs' actions were time barred.

III.

Plaintiffs argue that the district court committed legal error in three separate respects. First, they argue that their amendment did not change a party within the meaning of rule 15(c) because there should be an "identity of interest" exception to rule 15." Second, they argue that, even assuming their amendment did change a party, under a proper reading of the rule the requirements for relation back have been satisfied. Third, they argue that ...


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