Legal Memorandum: Amend or Supplement Original Pleadings

Issue: If plaintiffs whose cases were dismissed without prejudice refile, may they argue that the date of filing relates back to the date they originally filed?

Bailey v. N. Ind. Pub. Serv. Co., 910 F.2d 406, 413 (7th Cir. 1990) (“Rule 15(c), by its terms, only applies to amended pleadings in the same action as the original timely pleading.  Because the . . . claim was not contained in an amended pleading in Suit 1 but in a second, separate complaint, Rule 15(c) is inapplicable.”).

United States ex rel. Malloy v. Telephonics Corp., 68 Fed. Appx. 270, 273 (3d Cir. 2003) (unpublished opinion) (“The District Court correctly determined that pursuant to the plain language of the rule, the relation back theory applies to an amendment of a pleading in the same civil action.  We agree that ‘Rule 15(c) does not permit a complaint filed in one civil action to relate back to a complaint filed in a separate civil action.'”.).

Neverson v. Bissonette, 261 F.3d 120, 126 (1st Cir. 2001) (“Rule 15(c) simply does not apply where the party bringing suit did not seek to ‘amend’ or supplement’ his original pleading, but, rather, opted to file an entirely new [action] at a subsequent date.”  Observing that a dismissal without prejudice leaves a plaintiff “in the same situation as if [the] first suit had never been filed” for purposes of the relation-back doctrine derived from Rule 15(c).).

Bjorgung v. Whitetail Resort, No. 1:CV-05-235 (M.D. Pa. June 10, 2005) (rejecting the argument that including language “without prejudice” in order dismissing original petition indicates that a later-filed petition counts as an amendment […]