July 17, 2015 Practice Points

Lack of “Inexcusable Neglect” Allows Suit to Go Forward Despite Statue of Limitations

Washington’s Court Rule 15(c) allows a plaintiff who mistakenly sues an incorrect defendant to amend a complaint and add the correct defendant

by Sean R. Calvert

Washington’s Court Rule 15(c) allows a plaintiff who mistakenly sues an incorrect defendant to amend a complaint and add the correct defendant. The added party must have received notice of the action within the limitations period such that the party will not be prejudiced in maintaining its defense on the merits. The added party must have known or should have known that but for a mistake concerning his identity, the action would have been brought against it. Additionally, the plaintiff’s delay in adding the defendant cannot have been due to inexcusable neglect. Martin v. Dematic, 182 Wn.2d 281, 340 P.3d 834 (December 31, 2014), turned on how to interpret the rule.

On August 13, 2004, Donald Martin was killed by a machine at a Kimberly-Clark paper plant. His wife filed a wrongful death and survival action within the three-year statute of limitations on June 29, 2007. Among the defendants named was “General Construction Company dba/fka Wright Schuchart Harbor Company.” She served General Construction Company (GCC) with a summons and complaint on July 5, 2007, alleging that Wright Schuchart Harbor Co. (WSH) installed the machine, and that GCC was its corporate successor.

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