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Swartz v. Gold Dust Casino, Inc

Citation. 91 F.R.D. 543, 1981 U.S. Dist. 32 Fed. R. Serv. 2d (Callaghan) 1385
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Bloomberg Law

Brief Fact Summary.

Cavanaugh Properties Defendant moved for Judgment on the Pleadings on the grounds that the two-year Nevada statute of limitations is applicable to personal injuries caused by negligence.

Synopsis of Rule of Law.

When a newly added defendant is aware of the litigation and knows that the plaintiff may hold him liable, the amended complaint will be within the statutory period.


Doris M. Swartz (Plaintiff) was injured on May 4, 1979, when she fell on a staircase in the Gold Dust Casino. Plaintiff filed a complaint in the United States District Court on April 30, 1980. The defendants listed were Gold Dust Casinos and Does I through IV (Defendants) the true names and identities of these defendants were not known or ascertainable, but they were liable to Plaintiff for damages. In terms of Gold Dust Casinos, the complaint alleged that the Defendant had negligently permitted the staircase to become bare, worn, and slippery. Gold Dust Casinos denied the allegations. In the answer to the complaint, Gold Dust Casinos disclosed that it leased the premises from Cavanaugh Properties. In December 9, 1980, Plaintiff filed supplemental answers, which disclosed that they had employed engineering consultant, Stephen I. Rosen (Rosen). The report from Rosen to Plaintiff’s attorney stated that the conditions on the stairway violated the local building code. On February 19, 1981, Plaintiffs stated that they had discovered that the true name of Doe I was Cavanaugh Properties and they prayed for leave to amend their complaint. The district court denied the Defendants’ Motion for Summary Judgment. On April 9, 1981, Plaintiff filed a Motion for Leave to Amend Their Complaint to add claims for relief and Cavanaugh Properties as a defendant. The amended complaint alleged that Defendant, Cavanaugh Properties, was responsible for the design and installation of the stairway. Motion for Leave to Amend the Complaint was granted and the complaint was served on Cavanaugh Properties on May 8, 1981. Cavanaugh Properties raised the two-year statute of limitations in its answer and filed a Motion for Judgment on the Pleadings based on the fact that the Amended Complaint was not filed within the time period allowed by the statute of limitations. Plaintiffs rely on the relation back provisions. Defendant, Cavanaugh Properties, argued in reply that the Amended Complaint sets forth a new and different cause of action that does not relate back to the date of filing of the original complaint; that adding Cavanaugh Properties as a defendant does not comply with the prerequisites to relation back; and that the filing of the Motion to Amend the Complaint prior to the expiration of the statute of limitations did not toll the running of the statute.


Whether the adding of the Defendant in the Amended Complaint is within the statute of limitations?


Yes. Defendant’s Motion for Summary Judgment is denied. Plaintiff’s allegations in the Amended Complaint arose from the same occurrence as set forth in the original complaint, in other words, Plaintiff’s fall on the stairway. Whether or not Plaintiff’s injuries were a result of negligence in the design or the installation or maintenance of the stairway does not change the fact that all claims in pleadings resulted from her fall. Notice of the commencement of the lawsuit need not be formal. If a person receives notice of the litigation that he may be liable to the plaintiff, he has received the notice required within the statutory period. Lack of diligence on the part of Plaintiff’s counsel after receiving the information as to the true identity of the property owner is insufficient to prevent the Plaintiff from seeking leave to amend. Specific prejudice must be shown in order to prevent the Plaintiff from seeking amendment. Here, no such prejudice was shown.


There are two types of amendments prior to trial: as a matter of right or by permission. Each party may amend once either before the answer or responding pleading is served, in other words amendment as a matter of right. On the other hand, a party can amend by leave of the court or written consent of the opposing party. Typically, motions to amend pleadings are liberally granted except when prejudice to the other party may oc

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