Opinion
CIVIL NO. 1:98CV423-JAD.
February 7, 2001.
MEMORANDUM OPINION
Defendant John Stevens appears specially to contest this court's jurisdiction over his person and to test the timeliness of his inclusion in this case as a defendant. After consideration of the court file and briefs of the parties, it is the opinion of the court that the motion to dismiss is well taken and should be granted.
This cause of action arose on or about August 22, 1995, and this lawsuit was filed August 19, 1998. Stevens, an employee of Leggett and Platt, the original and only defendant, was not named as a defendant until February 2000 and not served with process until November 2000.
Plaintiff justifies his late inclusion of Stevens on the ground that he did not know the extent of Stevens' involvement in this matter until February 1999. Likewise Stevens argues his inclusion is barred by the statute of limitations and should not relate back to the original filing because he had no notice that he was a potential defendant in litigation by Miller. Both assertions strain the court's credulity.
This lawsuit arose out of conflicting patent applications by plaintiff Miller and defendant Stevens. Both patent applications were filed in 1993, Miller's in May and Stevens' in August, and plaintiff asserts in his original complaint that "the Stevens' application was a direct result of Leggett and Platt's breach of the confidential Disclosure Agreement." On August 22, 1995, the United States Patent and Trademark Office, Board of Patent Appeals and Interferences declared an Interference between the Miller patent and the Stevens application. Although plaintiff may not have known the extent of Stevens' involvement right away, he certainly was on notice that Stevens may have had a role in this matter shortly after Stevens filed his application for a patent. Likewise, when the United States Board of Patent Interferences entered judgment for Miller on September 21, 1999, Stevens submitted a request for reconsideration and ultimately commenced a lawsuit on June 16, 2000, in the Northern District of Missouri, in conjunction with Leggett and Platt.
Miller's complaint alleges conspiracy between Stevens and Leggett and Platt to misappropriate Miller's intellectual property. Section 15-1-49, Mississippi Code Annotated (Supp. 1992), allows a litigant only three years to file a tort action. The statute begins to run at the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured. Russel v. Board of Trustees of Firemen, etc., 968 F.2d 489 (5th Cir. 1992), cert. denied, 113 S.Ct. 1266 (1993).
Pursuant to Evans v. Oberon Holding Corporation, 729 So.2d 825 (Miss. 1998), the filing of an amended complaint on February 2, 2000, tolled the statute of limitations only 120 days beyond the original three-year period, in other words, 123 days following the filing of the amended complaint. However, an additional 60 days to serve process upon Stevens was granted by the court on November 15, 2000, and process was served within that 60 day period. Therefore, service upon Stevens was timely, from a strictly mechanical point of view.
However, it appears that this court erroneously allowed the amendment to the complaint which joined Stevens in this lawsuit.
Fed.R.Civ.P 15(c)(3) places two requirements upon a plaintiff changing the party (here Stevens) against whom a claim is asserted. First, Miller must show that Stevens received such notice of the institution of the action that he will not be prejudiced in maintaining a defense on the merits. Second, Miller must show that he was mistaken about the identity of the proper party at the time of the filing of the complaint. These two requirements are conjunctive.
Stevens cannot show significant prejudice by his failure to be named originally in this lawsuit. Stevens argues that he has little time for discovery under the current deadlines for this case, but that can easily be cured by delay of the trial and providing additional time for discovery. In truth, his discovery likely would be quite similar to that of his co-defendant.
More importantly, Miller cannot show that he was mistaken about Stevens' identity at the time of the filing of the complaint. These two have been in contention over this patent since 1995, a full three years prior to the filing of Miller's lawsuit. Miller cannot pretend he was unaware that Stevens was a key player in this drama. Discovery is the vehicle for uncovering the extent of that involvement.
Accordingly, the court can only conclude that Miller should be dismissed with prejudice from this lawsuit. As harsh as this might seem, it is in fact simply closing one door to Stevens. The Missouri lawsuit is on-going and the claims against Stevens may be addressed there.
A final judgment in accordance with this opinion will be separately entered.