RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0384P (6th
File Name: 00a0384p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
|Creighton E. Miller, Administrator of the
Estates of Juvenal J. Rezendes, Deceased (99-3703),
Louie E. Hudson, Deceased (99-3705), Booker
T. Pompey, Deceased (99-3707), Walter L. Bowman, Deceased (99-3708), William
B. Birch, Jr. (99-3709),
American Heavy Lift Shipping, et al.,
Nos. 99-3703/ 3705/3707/ 3708/3709
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
Nos. 90-10263; 91-10448; 91-10775; 92-10151;
92-10427--John M. Manos, District Judge.
Argued: June 21, 2000
Decided and Filed: November 3, 2000
Before: MERRITT, GUY, and COLE, Circuit Judges.
ARGUED: John C. Cardello, THE JAQUES
ADMIRALTY LAW FIRM, Detroit, Michigan, for Appellant. Harold W. Henderson,
THOMPSON HINE & FLORY LLP, Cleveland, Ohio, for Appellees. ON BRIEF:
John C. Cardello, Donald A. Krispin, THE JAQUES ADMIRALTY LAW FIRM, Detroit,
Michigan, for Appellant. Harold W. Henderson, Richard C. Binzley, THOMPSON
HINE & FLORY LLP, Cleveland, Ohio, Gene B. George, RAY, ROBINSON, CARLE
& DAVIES, Cleveland, Ohio, for Appellees.
COLE, J., delivered
the opinion of the court, in which MERRITT, J., joined. GUY, J. (pp. 19-20),
delivered a separate dissenting opinion.
R. GUY COLE, JR.,
Circuit Judge. Plaintiff-Appellant Creighton E. Miller is the administrator
of the estates of five deceased seamen. In the years 1990-1992, Miller
brought five separate actions against various shipowners and operators,
alleging survival and wrongful death claims under the Jones Act, 46 U.S.C.
App. § 688, and general admiralty and maritime law. In 1997, Miller
filed amended complaints in each case. The district court found that the
amended complaints did not relate back to the original complaints pursuant
to Fed. R. Civ. P. 15(c)(2), and, as such, were barred by the three-year
Jones Act statute of limitations. For the reasons discussed below, we REVERSE
the decision of the district court and REMAND for further proceedings consistent
with our opinion.
Miller is the administrator
of the estates of Juvenal J. Rezendes, William B. Birch, Jr., Walter L.
Bowman, Louie E. Hudson, and Booker T. Pompey ("the seamen"). Each of the
seamen worked for many years on various ships. All the seamen were diagnosed
with leukemia prior to their deaths in 1987, 1988, or 1989. In 1990, 1991,
and 1992, Miller brought suit under the Jones Act, 46 U.S.C. App. §
688,(1) and general maritime law against Defendants-Appellees
American Heavy Lift Shipping, et al. (on behalf of Rezendes), American
President Lines, Ltd., et al. (on behalf of Birch), Amerada Hess Corp.,
et al. (on behalf of Bowman), Alcoa Steamship Company, Inc., et al. (on
behalf of Hudson), and Farrell Lines, Inc. (on behalf of Pompey) (collectively,
"Shippers"). See Smith v. Gulf Oil Co., 995 F.2d 638, 642 n.3 (6th
Cir. 1993). In each case, Miller brought suit prior to the running of the
Jones Act's three-year statute of limitations. See 46 U.S.C. §
App. 688 (incorporating by reference the three-year statute of limitations
contained in 45 U.S.C. § 56); Mamer v. Apex R.E. & T.,
59 F.3d 780, 782 n.2 (8th Cir. 1995). In the complaints, all of which were
substantively identical (only the headers and named defendants differed),
Miller raised both survival and wrongful death actions, based on theories
including negligence and breach of duty to maintain a safe and seaworthy
vessel. Miller alleged that the seamen had sustained injuries as a result
of their exposure to asbestos and to hazardous substances other than asbestos
while working as seamen. In particular, the relevant language of each complaint
reads as follows:
10. While serving as a mariner on
said vessels, Plaintiff's decedent was exposed to hazardous substances
other than asbestos.
11. As a direct and proximate consequence
of his exposure to hazardous substances other than asbestos, Plaintiff's
decedent has sustained injuries . . . .
Later in each complaint, Miller further stated:
16. While serving as a mariner on
said vessels, Plaintiff's decedent was exposed to asbestos and hazardous
substances other than asbestos.
17. As a direct and proximate consequence
of Plaintiff's decedent['s] combined exposure to asbestos and hazardous
substances other than asbestos, Plaintiff's decedent has sustained injuries.
In response to numerous
asbestos-related personal injury actions filed by seamen in the Northern
District of Ohio, the court created a special Ohio Maritime Asbestos Litigation
Docket (known as "MARDOC"). See Gulf Oil Co., 995 F.2d at 639. Miller's
five actions were transferred to MARDOC. As part of the MARDOC litigation,
Miller produced an "Initial Data Form" ("IDF"), a summary of basic information
about each claim, for each of his five claims. Miller apparently produced
the IDFs within weeks or months of filing his complaints and made them
available to Shippers as part of the discovery process; however, the IDFs
were not filed with the court. On the Rezendes IDF, Miller stated that
Rezendes suffered from colon cancer, but did not mention leukemia; under
the heading labeled "Toxin," Miller inserted "Asbestos-Tobacco Smoke."
On Birch's IDF, Miller identified leukemia, in addition to other illnesses,
and again identified asbestos and tobacco smoke under the "Toxin" heading.
Bowman's IDF did not specify any illness, but listed asbestos and tobacco
smoke as toxins. Hudson's IDF identified leukemia as an illness but listed
only asbestos as a toxin. Pompey's IDF identified leukemia as an illness
and listed asbestos and tobacco smoke as toxins. At some point during the
course of litigation -- the timing is not clear from the record before
us -- Miller also produced death certificates for each of the deceased
seamen which indicated that some form of leukemia was the cause, or a contributing
factor to, each sailor's death.
In 1991 and 1992,
the Judicial Panel on Multidistrict Litigation transferred thousands of
asbestos claims, including the five cases Miller currently appeals, to
the Eastern District of Pennsylvania for pretrial proceedings, pursuant
to 28 U.S.C. §1407. See In re Asbestos Prods. Liab. Litig.,
771 F. Supp. 415 (J.P.M.L. 1991). In July 1993, Miller filed a "Motion
to Strip and Remand" in each of the five cases on appeal. In the motions,
Miller asked the court to strip his claims of all allegations relating
to asbestos exposure "so as not to prejudice allegations unrelated to asbestos
exposure appertaining [to] toxin exposure which resulted in affliction
of the respective seamen, whether living or deceased, of leukemic disease."(2)
Judge Weiner granted the motion in November 1993, and issued an order transferring
the seamen's cases back to the Northern District of Ohio for further resolution.
In so doing, Judge Weiner found that the "form of action in these cases
is now dissimilar to traditional asbestos-related, personal injury actions,"
and that plaintiff seamen had "abandoned any claim for recovery based upon
injury resulting from asbestos exposure and . . . are hereby precluded
from claiming damages resulting from injury due to exposure to asbestos
In March 1995, Shippers
filed a consolidated motion for a more definite statement of Miller's claims,
see Fed. R. Civ. P. 12(e), arguing that because Miller had not specifically
pleaded either leukemia or benzene exposure, his complaints were insufficient
to put them on notice of the benzene claims he now argued. The court granted
the motion in January 1996, finding the complaints to be vague and ambiguous.
The court ordered Miller to file amended complaints within sixty days addressing
several issues, including Miller's theory of liability and "the specific
cargo or other substances aboard each vessel alleged to have contained
benzene." Although the district court dismissed the actions when Miller
failed to file the amended complaints within the sixty-day time period,
the court reinstated the claims in February 1997, pursuant to Fed. R. Civ.
In April 1997, Miller
filed amended complaints on behalf of the estates of each of the deceased
seamen. In the amended complaints, Miller again alleged theories of liability
under both the Jones Act, 46 U.S.C. § App. 688, and general admiralty
and maritime law. Miller claimed that his decedents had suffered from leukemia
as a result of exposure to benzene and benzene-containing products, and
listed specific instances and methods of exposure on particular ships.
In April 1998, Shippers filed for summary judgment, arguing that Miller's
1997 amended complaints did not relate back to his original complaints,
which had been filed in 1990-1992. Shippers also argued in each case that
Miller's survival action was barred by the three-year statute of limitations
because his claims had accrued before decedent's deaths, and thus more
than three years prior to the filing of the original claims.(3)
The district court
granted summary judgment to Shippers in each case. In five nearly identical
memorandum opinions, the court addressed only the relation-back question,
finding that none of the amended complaints related back to the original
filing. The court relied on Shippers' uncontested argument that different
toxins and different methods of exposure cause different diseases, and
found that "[e]xposure to benzene does not occur or act in the same manner
as exposure to asbestos." The court found that Miller's original allegation
that seamen had been exposed to "hazardous substances other than asbestos"
was insufficient to put Shippers on notice of the benzene-related claims,
and concluded that "[t]aken to its logical conclusion, Plaintiff's position
means the Defendants are forever on notice of claims arising out of exposure
to any hazardous substance." Miller filed a timely notice of appeal.
II. STANDARD OF REVIEW
The parties disagree
about the standard by which we review the district court's decision that
Miller's amended complaints do not relate back to his original complaints
for purposes of Rule 15(c)(2). Miller argues that this court reviews
novo a grant of summary judgment based on the running of a statute
of limitations. Shippers argue that we review the district court's decision
for abuse of discretion.
The standard of review
for the district court's summary judgment order is, of course, de novo.
See Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Further,
Miller is correct that this court reviews de novo a district court's
determination that a complaint was filed outside the relevant statute of
limitations. See Tolbert v. State of Ohio Dep't of Transp., 172
F.3d 934, 938 (6th Cir. 1999). The district court's order turns, however,
on the court's finding that Miller's amended claims do
not relate back
to the original claims pursuant to Rule 15(c)(2). As we shall discuss,
the question of whether an amended claim relates back to an earlier filed
complaint pursuant to Fed. R. Civ. P. 15(c)(2) requires us to determine
whether the amended claim "arose out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original pleading." See
Fed. R. Civ. P. 15(c)(2). This inquiry requires us to apply the legal standard
of Rule 15(c)(2) to a given set of facts, a task we are no less suited
to perform than the district court. See Slade v. United States Postal
Service, 875 F. 2d 814, 815 (10th Cir. 1989) (stating that application
of Rule 15(c) to undisputed facts is "purely legal determination" that
is reviewed de novo); Paul Revere Life Ins. Co. v. Brock,
28 F.3d 551, 553 (6th Cir. 1994) (stating that mixed questions of law and
fact are reviewed de novo). Accordingly, we review de novo
the district court's decision to deny relation back of an amended complaint
to the original complaint. See Dominguez v. Miller (In re Dominguez),
51 F.3d 1502, 1509 (9th Cir. 1995) (stating that review of Rule 15(c)(2)
decision that permits or denies amendment to add a new claim against defendant
named in original complaint is de novo).
On appeal, Miller
argues that the district court erred by finding that the amended complaints
do not relate back to the original complaints.(4) Miller's
argument is comprised of essentially three assertions: 1) that the Federal
Rules of Civil Procedure require a plaintiff to give a defendant only general
notice of his claims, and that Millers's original complaints provided such
notice; 2) that his amended complaints relates back because the claims
in the amended complaints arose out of the same conduct, transaction, or
occurrence as set forth in his original complaints; and 3) that both the
original complaints and information outside of the complaints gave Shippers
adequate notice of their potential liability for the claims raised in the
A. General Notice Required by Rules
Miller first argues
that the Federal Rules of Civil Procedure require only that a pleading
contain a short and plain description of the court's jurisdiction, the
pleader's claim for relief, and a demand for the judgment the pleader seeks.
Fed. R. Civ. P. 8(a). Miller contends that his original complaints,
which alleged that the deceased seamen's injuries were caused by exposure
to "asbestos and hazardous substances other than asbestos," were sufficient
to cover his subsequent allegations of benzene-related claims. There can
be no dispute that our modern rules of civil procedure are based on the
concept of "simplified 'notice pleading,'" Conley v. Gibson, 355
U.S. 41, 47 (1957), and that "[a]ll pleadings shall be so construed as
to do substantial justice." Fed. R. Civ. P. 8(f). This can indeed be seen
in the basic requirements for a claim for relief as set forth in Rule 8(a),(5)
and in the dictate of Rule 15(a), which states that a court shall grant
a party leave to amend a complaint "freely . . . when justice so requires."
Fed. R. Civ. P. 15(a); see also Moore v. City of Paducah, 790 F.2d
557, 559 (6th Cir. 1986). This fundamental tenor of the Rules is one of
liberality rather than technicality, and it creates an important context
within which we decide cases under the modern Federal Rules of Civil Procedure.
Nonetheless, this tenor does not necessarily mandate a particular outcome
on its own, as Miller suggests. Rather, we must examine the more specific
requirements of Rule 15(c) in order to determine whether Miller's amended
complaints relate back to the original pleadings.
B. Same Conduct, Transaction, or Occurrence
Rule 15(c)(2) states
An amendment of a pleading relates
back to the date of the original pleading when . . . the claim or defense
asserted in the amended pleading arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the original pleading.
Fed. R. Civ. P. 15(c)(2). As this court recently
explained, whether a statute of limitations will be permitted to bar an
amended claim turns on whether the amended claim arose out of the same
conduct, transaction, or occurrence as that set forth in the original complaint:
The rule is based on the notion that
once litigation involving particular conduct or a given transaction or
occurrence has been instituted, the parties are not entitled to the protection
of the statute of limitations against the later assertion by amendment
of defenses or claims that arise out of the same conduct, transaction,
or occurrence as set forth in the original pleading.
Brown v. Shaner, 172 F.3d 927, 932 (6th
This court has stated
that "the thrust of Rule 15 is to reinforce the principle that cases 'should
be tried on their merits rather than the technicalities of pleadings.'"
Moore, 790 F.2d at 559 (quoting Tefft v. Seward, 689 F.2d
637, 639 (6th Cir. 1982)). Thus, a court will permit a party to add even
a new legal theory in an amended pleading as long as it arises out of the
same transaction or occurrence. See Hageman v. Signal L.P. Gas, Inc.,
486 F.2d 479, 484 (6th Cir. 1973) ("where the parties are the same, . .
. an amendment which adds another claim arising out of the same transaction
or occurrence does relate back to the date of the original complaint.");
Koon v. Lakeshore Contractors, 128 F.R.D. 650, 653 (W.D. Mich. 1988)
("an added theory of liability for the same occurrence may relate back."
(citing Hageman)), aff'd without opinion, 889 F.2d 1087 (Table),
1989 WL 137151 (6th Cir. Nov. 15, 1989); see also 6A Wright et al.,
federal practice and procedure § 1497, at 94-95, 98-99 (1990 &
Supp. 2000) ("an amendment that states an entirely new claim for relief
will relate back as long as it satisfies the test embodied in . . . Rule
15(c)."). Likewise, "[a]n amendment that alleges added events leading up
to the same injury may relate back." Koon, 128 F.R.D. at 653 (citing
Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 581 (1945)).
Miller argues that
the amended claims arose out of the same conduct, transaction, or occurrence
as the original claims.
See Fed. R. Civ. P. 15(c)(2). Miller asserts
that, under the amended complaints, Shippers are liable for the same conduct
-- negligently exposing the deceased seamen to toxins and failing to maintain
the seaworthiness of their vessels -- as he alleged in his original complaints.
He further claims that the amended complaints simply named the "hazardous
substance other than asbestos" with more specificity than did the original
complaints, and that the two sets of complaints concerned the same time
period and the same injuries.
Under the Rules described
above, we find this argument to be persuasive. Miller brought his original
complaints under the Jones Act, 46 U.S.C. § App. 688, and general
admiralty and maritime law. The original complaints included theories of
negligence, unseaworthiness, wrongful death, and loss of society and companionship.
The amended complaints also arise under the Jones Act and general admiralty
and maritime law, and include theories of negligence, unseaworthiness,
wrongful death, and loss of society and companionship. More important,
each original complaint alleged that, "[w]hile serving as a mariner on
said vessels, Plaintiff's decedent was exposed to hazardous substances
other than asbestos," and that "[a]s a direct and proximate consequence
of his exposure to hazardous substances other than asbestos, Plaintiff's
decedent has sustained injuries." The amended complaints are very similar,
with the added specificity that the "hazardous substances" originally pleaded
included benzene and that the injuries originally claimed came in the form
of leukemia. Each amended complaint states that "Plaintiff's Decedent was
required by his employers to perform duties which included the constant
exposure to chemical carcinogens including benzene," and that that exposure
caused the decedent to suffer from leukemia. The amended complaints then
state the particular benzene-containing substances to which each decedent
was allegedly exposed, and on which ship the exposure occurred. Thus, the
amended complaints simply plead with more specificity that which appeared
in the original complaints: Shippers' liability for exposing decedents
to a hazardous substance. See Tiller, 323 U.S. at 581 ("The
cause of action now, as it was in the beginning, is the same -- it is a
suit to recover damages for the alleged wrongful death of the deceased.");
see also 3 James Wm. Moore et al., moore's federal practice §
15.19, at 15-82 (3d ed. 1999) ("Amendments that amplify or restate the
original pleading or set forth facts with greater specificity should relate
Shippers argue strenuously
that the amended complaints do not arise out of the same conduct, transaction,
or occurrence as the original complaints, because they contain new "operative
facts."(6) It is true that a claim with entirely different
"operative facts" will not relate back. See Koon, 128 F.R.D. at
653 (finding that new claim of lower back injury sustained while jumping
to the ground from a fence does not relate back to original complaint of
neck injury sustained while lifting heavy object on board a barge). But
Miller alleged the very same general set of facts in the amended complaints
as he did in the original ones: that decedents worked for many years on
Shippers' vessels, that they were exposed to hazardous substances during
that time due to Shippers' negligence, and that they sustained injuries
in the form of lethal diseases due to their exposure to hazardous substances.
Shippers' arguments that injuries arising from exposure to asbestos are
materially different from injuries arising from exposure to benzene --
an argument which is derived from a few definitions in a medical dictionary,
see Dorland's Illustrated medical dictionary 145-46, 191 (28th ed.
1994), and upon which the district court relied -- is unconvincing. To
focus on the particular pathologies of a given carcinogen is far too formalistic
and specific for the general, non-technical requirements of Rule 15. This
is especially the case with diseases such as cancer and leukemia, which
may be idiopathic and which may arise from sources that are impossible
to identify before extensive discovery (if at all). Accordingly, the benzene
exposure claims Miller details in the amended complaints fit comfortably
within the claims of exposure to "hazardous substances" that he alleged
in the original pleading.(7)
C. Notice to Shippers
Although the focus
of our inquiry into whether an amendment relates back pursuant to Rule
15(c)(2) is whether it arises from the same conduct, transaction, or occurrence,
we look to other factors as well. "Undue delay in filing, lack of notice
to the opposing party, bad faith by the moving party, repeated failure
to cure deficiencies by previous amendments, undue prejudice to the opposing
party, and futility of amendment are all factors which may affect the decision."
Hageman, 486 F.2d at 484. Of these factors, "[n]otice and substantial
prejudice to the opposing party are critical . . . in determining whether
an amendment should be granted." Id.; see also Brown, 172
F.3d at 934 (permitting relation back of amended complaint where defendants
"'knew or should have known'" that they were targets of § 1983 suit).
Miller argues that
his original complaints put Shippers on notice that they must defend Jones
Act and general maritime law toxic tort actions which alleged wrongful
death due to exposure to asbestos and/or other hazardous substances. Shippers
respond that Miller's non-specific, general allegations were insufficient
to put them on notice of his benzene-related leukemia claims.(8)
In this context, the parties argue the relevance of Tiller v. Atlantic
Coast Line R. Co., 323 U.S. 574 (1945), to the instant case. In Tiller,
the wife of a railroad employee who was killed on the job sued the defendant
rail company under the FELA, 45 U.S.C. § 51 et seq. See 323
U.S. at 575. The plaintiff alleged that her husband's death was caused
by the negligent operation of a railroad car that struck and killed him
and by defendant-railroad's failure to provide her husband with a reasonably
safe place to work. Id. Plaintiff later filed an amended complaint
in which she added a claim under the Federal Boiler Inspection Act, charging
that the locomotive was not properly lighted. See id. at 580-81.
Applying Rule 15(c), the Court held that both complaints "related to the
same general conduct, transaction, and occurrence," and that defendant
"had notice from the beginning that [plaintiff] was trying to enforce a
claim against it because of the events leading up to the death of the deceased
in the [defendant's] yard." Id. at 581.
that Tiller is inapposite to the instant case because the amendment
in Tiller did not fundamentally change the nature of plaintiff's
claim, in that both the original claim and the amended claim involved a
single, traumatic incident within the defendant's knowledge. Shippers assert
that they, in contrast to the Tiller defendant, had no knowledge
of the deceased seamen's leukemic injuries until Miller filed the amended
complaints, many years after decedents were allegedly injured. We disagree.
The original complaints in this case made clear that the deceased seamen
had suffered latent injuries, based upon exposure to toxic substances on
board Shippers' vessels, that resulted in their illnesses and eventual
deaths. See Benco Plastics, Inc. v. Westinghouse Elec. Corp., 387
F. Supp. 772, 783 (E.D. Tenn. 1974) (stating that "the rule to be followed
in federal courts is that if there is an identity between the amendment
and the original complaint with regard to the general wrong suffered and
with regard to the general conduct causing such wrong, then the amendment
shall relate back and the statute of limitations would not avail to preclude
a hearing on the merits." (internal quotation marks and citation omitted)).
The amended claim in Tiller appears to have gone further yet, stating
a new theory of recovery by referring to a statute not alleged in the original
complaint (i.e., the Federal Boiler Inspection Act). See id.
at 580. Yet, the
Tiller Court found that the defendants were on
notice based upon the original complaint. Id. at 581. We thus conclude
that the Tiller Court's broad application of Rule 15(c) supports
Miller's relation-back theory. See id. at 580-81.
Nor are we persuaded
by Shippers' argument that Miller's original complaints were so general
that, if they are construed to give notice of benzene-related leukemia
claims, defendants in asbestos cases will be forever on notice of claims
arising out of exposure to any hazardous substance. The district court
relied on this reasoning in its decision, finding that "the Court would
emasculate the statute of limitations requirement if it gave to the phrase
'hazardous substances other than asbestos' the breadth [Miller] seeks."
This reasoning is only facially appealing. The complaints in this case
alleged that Shippers' former employees had died as a result of being exposed
to hazardous substances aboard the vessels Shippers owned and operated.
Shippers were on notice that they needed to collect and preserve evidence
relating to the working environment in their ships. Miller, for his part,
had the right and responsibility to pursue through discovery the nature
and circumstances of decedents' working environments and deaths. To be
sure, both parties may have had difficult tasks in conducting this discovery,
but that difficulty goes to the substance of the lawsuit rather than to
whether Shippers knew that they were being sued, and on what general grounds.
If, at some point in the future, Miller attempts to amend his claim again,
the court will be free to determine whether it should relate back, looking
to possible prejudice to the parties, unwarranted delay, futility, and
the other factors appropriately considered under Rule 15(c). See Hageman,
486 F.2d at 484. These factors are an adequate protection against Shippers
being forever liable for claims arising from Miller's original pleading.
One more case demands
our discussion. The parties argue the relevance of Smith v. Gulf Oil
Co., 995 F.2d 638 (6th Cir. 1993), in which this court held that the
district court did not abuse its discretion under Fed. R. Civ. P. 16 by
foreclosing plaintiff-seamen's argument that injuries they alleged were
caused by tobacco smoke in defendants' ships. Id. at 644. In
seamen brought asbestos claims similar to the original claims in the instant
case. Id. at 640. As in the instant case, the Smith plaintiffs
alleged that their injuries resulted from exposure to asbestos and to "hazardous
substances other than asbestos." Id. at 643. The plaintiffs pursued
only the asbestos claims until two days after trial commenced. See
id. at 642. When the Smith defendant-shipowners moved to argue
evidence of plaintiff seamen's individual smoking habits in defending,
plaintiffs moved to argue that tobacco smoke was a hazardous condition
for which the shipowners could be liable. Id. at 640. This court
upheld the district court's ruling that plaintiff seamen could not argue
the tobacco theory on the grounds that plaintiff's counsel had never seriously
pursued it. Id. at 644.
The relevance of
Smith to this case is minimal. First, we typically review a district
court's case-management decision made pursuant to Rule 16 for abuse of
discretion. See, e.g., Muckleshoot Tribe v. Lummi Indian Tribe,
141 F.3d 1355, 1358 (9th Cir. 1998). As discussed supra, we review
the district court's decision to forbid relation back pursuant to Rule
de novo. See Dominguez, 51 F.3d at 1509. Second,
counsel in Smith never formally pursued the tobacco theory, but
rather adopted it as a trial tactic at the last minute. Id. at 643.
In the instant case, Miller filed amended complaints alleging the benzene
claims, and pursued them in the lower court. Thus, Smith has little
relevance to the instant case.
For the reasons discussed,
we REVERSE the decision of the district court and REMAND the case for further
proceedings consistent with this opinion.
RALPH B. GUY, JR.,
Circuit Judge, dissenting. Even under the de novo standard of review,
I cannot agree that the amended complaints at issue in this case relate
back to the date of the original pleadings under Rule 15(c)(2). The rationale
behind this rule is to allow relation back when the defendant has been
put on notice, through the pleadings or other sources, of the entire scope
of the transaction or occurrence. See Barcume v. City of Flint, 819
F. Supp. 631, 636 (E.D. Mich. 1993) (citing Wright, Miller & Kane,
Federal Practice and Procedure Civil 2d §§ 1496-97). The
focus of the inquiry is not whether the claim or theory in the amended
complaint is new, but rather whether it arose out of the same conduct,
transaction, or occurrence. See Hageman v. Signal L.P. Gas, Inc., 486
F.2d 479, 484 (6th Cir. 1973) (added theory for same occurrence may relate
back).(1) An amendment that states a claim based upon
different facts will not relate back to the date of the original complaint.
See Koon v. Lakeshore Contractors, 128 F.R.D. 650, 653 (W.D. Mich.
1988), aff'd without opinion, 889 F.2d 1087 (6th Cir. 1989) (amendment
alleging negligence and unsafe working conditions under Jones Act did not
relate back because it involved different injuries that occurred in different
In this case, the
original complaints alleged injuries from exposure to "asbestos" and "hazardous
substances other than asbestos." The complaints did not mention leukemia,
benzene, or any toxin other than asbestos. Each of the IDF's provided to
the defendants shortly after the cases were filed identified the toxin
either as "asbestos and tobacco smoke" or "asbestos," but did not mention
benzene. The majority's conclusion that the amended complaints merely pled
with more specificity the same claims, ignores the district court's finding
that the original complaints did not give adequate notice of the benzene
claims. I agree with the district court that the amended complaints substantially
altered the factual basis for the toxic tort claims by alleging that the
decedents suffered from leukemia caused by exposure to dangerous concentrations
of benzene in the air, potable water, and on exposed skin from working
with or in close proximity to products containing benzene. There is no
dispute that the mechanisms, times, circumstances of, and diseases caused
by shipboard exposure to benzene differed significantly from those of shipboard
exposure to asbestos. These are the operative facts that determine whether
the amendments arose from the same conduct, transaction, or occurrence
as the original complaints. For these reasons, I respectfully dissent.
1 Title 46 U.S.C. § App. 688(a) provides:
Any seaman who shall suffer personal
injury in the course of his employment may, at his election, maintain an
action for damages at law, with the right of trial by jury, and in such
action all statutes of the United States modifying or extending the common-law
right or remedy in cases of personal injury to railway employees shall
apply; and in the case of the death of any seaman as a result of any such
personal injury the personal representative of such seaman may maintain
an action for damages at law with the right of trial by jury, and in such
action all statutes of the United States conferring or regulating the right
of action for death in the case of railway employees shall be applicable.
The statute's incorporation of statutes applying
to railway employees refers to the Federal Employers' Liability Act (FELA),
45 U.S.C. §§ 51 et seq. See Hernandez v. Trawler Miss Vertie
Mae, Inc., 187 F.3d 432, 436 (4th Cir. 1999).
2 In an affidavit dated September 27, 1993, Miller's
counsel stated that the only causes of action the deceased seamen wished
to pursue were those related to their deaths by leukemia, which he alleged
were caused by exposure to benzene.
3 In addition, Shippers alleged in their motions for
summary judgment that Rezendes could not prove that he died of leukemia,
and that Hudson's wrongful death claim was barred by the applicable statute
of limitations. The district court did not reach these arguments. See
infra, note 4.
4 Miller argues in the alternative that the district
court erred by failing to determine whether the causes of action in the
amended complaints did not accrue until he was aware of both the nature
of the decedent seamen's injuries and their cause. Because we find that
Miller's amended complaints do relate back to the original complaints,
we do not reach this alternative argument. Nor do we pass judgment on Shippers'
argument that even Miller's original claims were filed outside of the relevant
statute of limitations, as we are not inclined to review a theory which,
as in this case, the district court has not first reviewed. See United
States v. Baker, 807 F.2d 1315, 1321 (6th Cir. 1986) (stating that
"courts of appeals generally refuse to consider issues not passed upon
by lower courts"). We reach only the question of whether Miller's amended
claims relate back to the original claims pursuant to Rule 15(c)(2), and
leave it to the district court to resolve on remand whatever further issues
may exist in this case.
5 Fed. R. Civ. P. 8(a) states:
(a) Claims for Relief. A pleading
which sets forth a claim for relief, whether an original claim, counterclaim,
cross-claim, or third-party claim, shall contain (1) a short and plain
statement of the grounds upon which the court's jurisdiction depends, unless
the court already has jurisdiction and the claim needs no new grounds of
jurisdiction to support it, (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for judgment
for the relief the pleader seeks. Relief in the alternative or of several
different types may be demanded.
Shippers also propose that the court evaluate whether the complaints arise
out of the same conduct, transaction, or occurrence by using two tests:
1) whether the evidence offered in support of the original claim would
prove the new claim, and 2) whether the new claim alters the "when, where,
what, or how" of the alleged injury. We reject these formulations as being
too mechanical for the liberal approach of Rule 15(c). See 6A Wright
et al. § 1498, at 102-03 (noting that mechanical tests are "too narrow
and restrictive, out of harmony with the Federal Rules, and ought to be
replaced with an approach that takes an over-all view of the problem."
(internal quotation marks and citation omitted)).
7 The dissent argues that the amended complaints substantially
altered the factual basis of Miller's original claims in that "the mechanisms,
times, circumstances of, and diseases caused by shipboard exposure to benzene
differed significantly from those of shipboard exposure to asbestos." Miller's
original complaint, however, did not contain any asbestos-specific allegations
of such "mechanisms, times, circumstances . . ., and diseases." Rather,
Miller's original allegations relating to the circumstances in which the
decedents sustained their injuries were essentially bare statements that
the decedents had been exposed to asbestos and other hazardous substances
onboard Shippers' vessels. While it is true that Miller's amended complaint
more specifically described the substances aboard each vessel alleged to
have contained benzene, these claims do not substantially alter the factual
basis of Miller's original charges. On the contrary, Miller's amended complaint
simply reflects a more particularized statement of his original claim of
exposure to "hazardous substances other than asbestos."
8 Miller also claims that certain evidence extrinsic
to the pleadings gave Shippers notice of his benzene-related leukemia claims.
Shippers disagree, arguing that notice of an additional claim must be found
within the original complaint itself rather than in extrinsic sources.
The dissent appears to agree with Miller that extrinsic evidence is relevant
to the notice question, but points out that the IDFs submitted by Miller
to Shippers during discovery failed to mention benzene as a possible toxin.
Although we are inclined to believe that notice may be provided by sources
outside the pleadings, see 6A Wright et al. § 1497, at 92-93
(stating that permitting extrinsic evidence to serve as notice "seems sound
since it is unwise to place undue emphasis on the particular way in which
notice is received."); 27A Lawyer's Cooperative Publishing, federal procedure:
lawyers edition § 62:336, at 127 (1996) ("notice may . . . be received
from outside the pleadings"), we do not decide the instant case based upon
either Miller's or the dissent's extrinsic evidence. Rather, we find that
Miller's original complaints provided Shippers with adequate notice of
the charges raised in the amended complaints.
1 For example, in Tiller v. Atlantic Coast Line R.
Co., 323 U.S. 574 (1945), the amendment added a new claim arising out
of a single accident that led to the death of a railroad employee. In Brown
v. Shaner, 172 F.3d 927, 932-33 (6th Cir.),
cert. denied, 120
S. Ct. 403 (1999), the amended complaint alleged the same claims under
42 U.S.C. § 1983, but added the allegations that the defendants were
being sued in their individual capacities. Not surprisingly, the court
in Brown found that the amendment related back to the filing of
the original complaint.