The opinion of the court was delivered by: Savage, J.
In this §1983 action, plaintiffs Franco and Joseph Siciliano seek to amend their complaint, pursuant to Fed. R. Civ. P. 15(c), to add as defendants six Philadelphia policemen who allegedly participated in physically assaulting them or failed to intervene to stop the assault. The incident occurred in the early morning of October 28, 2007, in the parking lot of a bar the plaintiffs had just left. The officers were there as part of a special unit working in plain clothes and were not assigned to the police district covering the area.
This is the second action the plaintiffs filed. The first one, filed on August 5, 2008, was voluntarily dismissed on February 10, 2009. The second was started in state court on October 26, 2009, and removed to this court on November 11, 2009. The original defendants were the City of Philadelphia and Officer Edward Lewis.
During the pendency of the first action, the parties engaged in discovery. Among those deposed was Sergeant Susan Green, a member of the Police Department's Internal Affairs Division ("IAD"). She conducted the investigation of a complaint of misconduct filed by the Sicilianos, through their attorney. During her deposition, Green did not reveal that there had been police officers other than those from the Sixth District present at the scene of the incident. The Sicilianos did not identify any Sixth District police officers as their assailants. They were later shown a photographic array of officers, all in uniform, who were working in the special plain clothes unit at the scene that night. These photos were among approximately 50 photographs.
Reluctant to accuse any police officer of wrongdoing, the Sicilianos did not jump to any conclusion as to the identities of their assailants from the black and white photographs they were shown.*fn1 However, at the depositions of the six officers, they were able to make positive identifications after seeing them face-to-face. They then filed this motion to amend the complaint to add them as defendants.
Although the administrative complaint that instigated the IAD investigation was filed with the Police Department on March 20, 2008, the investigative report was not completed and forwarded to the Police Commissioner until July 15, 2009. The six officers the plaintiffs seek to add as defendants were all interviewed by Green as part of the investigation. All were aware of the plaintiffs' complaint and allegations before the investigation concluded. The first to be interviewed was Heim on January 14, 2009, and the last, Keenan, on August 31, 2009, or before July 15, 2009.*fn2 Thus, all of these officers whom the Sicilianos seek to add as defendants had notice of the allegations within two years of the incident, that is, prior to the expiration of the statute of limitations.
The Sicilianos argue that they should be permitted to amend their complaint pursuant to Federal Rule of Civil Procedure 15(c).
Before an amended complaint can relate back for the purpose of overcoming the statute of limitations under Rule 15(c)(1)(C), four conditions must be met. First, the proposed change must relate to the same conduct, transaction or occurrence set out in the original pleadings. Second, the party to be added must have had enough notice of the action to prevent prejudice in defending it. Third, the proposed defendant knew or should have known, "but for a mistake concerning the proper party's identity," that the action would have been brought against him. Finally, the required notice must have been given within 120 days of the filing of the original complaint.*fn3
FED. R. CIV. P. 15(c)(1)(C).
There is no question that the proposed amendment satisfies the first requirement of Rule 15(c)(1)(C) because it relates to the same conduct and occurrence. Nor can one seriously argue that the six officers did not have enough notice to prevent prejudice. They were aware of the incident, were advised of the Sicilianos' allegations and were confronted with them during the IAD investigation. Their employer, through its attorney, has vigorously defended both this and the original actions. Thus, we must determine whether the remaining two conditions have been satisfied.
Notice of the action under the Rule need not be formal, such as actual service of process. Constructive notice is sufficient. However, it must be notice that the plaintiff has started an action, not that one may be filed. Schiavone v. Fortune, 750 F.2d 15, 18 (3d Cir. 1984), aff'd, 477 U.S. 21 (1986). Notice of the events or conduct complained of is not sufficient. Id. Thus, to satisfy the notice requirement, the plaintiff must show that the intended defendant knew or should have known, within the limitations period, that he could have been named as a defendant in the pending action. Id.
In evaluating the notice requirements, the focus is on what the defendants to be added knew or should have known, not what the plaintiffs knew or when they took action to move to amend. Krupski v. Costa Crociere S.p.A., 130 S.Ct. 2485, 2489 (2010). The knowledge of the amending party is not a factor in a Rule 15(c)(1)(C) analysis. Id. Thus, we look to what the intended defendants knew or had reason to know.
The notice requirement has been satisfied. The six officers whom the Sicilianos seek to add as defendants were all interviewed by Green.*fn4 At that time, they became aware that the Sicilianos had filed a complaint against the police for misconduct and were informed of the specific allegations, if not directly, certainly by the nature of the questions asked during the interview. Each knew or should have known then that they could have been named as defendants.
There are two methods of determining whether an intended defendant received constructive notice of the institution of the action within 120 days: the "shared attorney" method and the "identity of interest" method. Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 195-96 (3d Cir. ...