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You May Now Be Excused
Attorneys make mistakes.  Recently a colleague and I were presented with a case in which our client was served with an amended complaint after the statute of limitations had expired.  Our client was not a named defendant in the original complaint.  When we investigated whether the amended complaint would relate back to the date of the original filing, we discovered that the inexcusable neglect exception to the relation back doctrine (an exception that applied to our client’s circumstances in that case) is likely to be eliminated the next time it is considered by the Washington Supreme Court.  The rules regarding relation back for pleadings were created to reduce the number of outcomes decided upon highly technical errors in pleadings and filings and, “to balance the interest of the defendant protected by the statute of limitations with the preference embodied in the civil rules for resolving disputes on their merits.”  Perrin v. Stensland, 240 P.3d 1189, 1196, 158 Wn.App. 185, 200 (2010). 

 
[T]he inexcusable neglect exception to relation back doctrine is likely to disappear.


The issue of relation back often arises when a defendant is mistakenly named (e.g. a corporation is named as an LLC, or a vehicle owner is named instead of the driver) or when the identity of a proper party is impossible to ascertain before discovery is conducted.  CR 15(c) states that a claim relates back to the date of an original pleading if the party to be brought in, “(1) has received such notice as it will not be prejudiced and (2) knew or should have known, but for mistake concerning identity of proper party, the action would have been brought against new party.”  An exception to this rule exists if, “the reason for the failure to name the proper party resulted from “inexcusable neglect.”  Haberman v. Wash. Pub. Power Supply  Sys., 109 Wn.2d 107, 174, 744 P.2d 1032 (1988).  Inexcusable neglect exists when no reason for the initial failure to name the party appears in the record.  Id.    
 
Misnomer or reasonable mistakes do not rise to the level of inexcusable neglect and those types of amendments relate back to the date of original pleadings in the current system.  However, in cases where the proper party is known to the plaintiff or when the proper party’s identity is part of a public record, failure to timely name that party is inexcusable neglect and Washington courts have determined repeatedly that those amendments do not relate back.  So, while the purpose of the rule may be to have cases determined on the merits, Washington has created an exception in cases where the gross negligence of an attorney or a party makes fair litigation impossible.
 
This useful exception appears likely to disappear.

In a 2010 U.S. Supreme Court case, Krupski v. Costa Crociere S. p. A., which addressed this issue, Justice Sotomayor, writing for the majority, made it clear that the inexcusable neglect exception does not exist in federal law.  She stated that, “The Rule plainly sets forth an exclusive list of requirements for relation back, and the plaintiff's diligence is not among them.”  Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 539–40, 130 S. Ct. 2485, 2488, (2010).  She went on to write that, “ relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party's knowledge or its timeliness in seeking to amend the pleading.” Id. at 541.  Clearly, The U.S. Supreme Court has now interpreted that there is no inexcusable neglect exception to FRCP15(c).  When the requirements of notice and lack of prejudice are met, the amended pleading will relate back to the original filing despite any level of neglect on the part of the plaintiff.  
 
  In Washington, the Perrin court was constrained by the precedent of Washington case law (despite the recent federal interpretation).  In a previous Washington case, North Street Ass'n v. City of Olympia, the court decided that inexcusable neglect was reason enough alone to not permit joinder.  North Street Ass'n v. City of Olympia, 96 Wash.2d 359, 368, 635 P.2d 721 (1981).  Perrin cited North Street and noted that, “the requirement of “excusable neglect” does not appear in the text of CR 15(c) or in the parallel federal rule, Fed.R.Civ.P. 15(c)…Nevertheless, inexcusable neglect has become firmly embedded in Washington case law as a fourth ground for denying relation back.”  Perrin at 197-198.  The court in Perrin commented that it found, “the analysis by the United States Supreme Court in Krupski to be highly persuasive,” but determined that it was bound by precedent and that, “only our Supreme Court can decide that the “inexcusable neglect” factor should lose its place as an independent basis for denying relation back under CR 15(c).”  Id. at 200.

The Krupski decision is a clear and unambiguous interpretation of FRCP 15(c).  Any state rule that is based on this federal rule is highly likely to be interpreted similarly. Washington’s CR 15(c) is clearly based on the federal rule (as noted in Perrin) and thus the next time this issue is addressed by the Washington Supreme Court, the inexcusable neglect exception to relation back doctrine is likely to disappear. Until that time, however, inexcusable neglect is embedded in Washington case law and can be used to prevent amended pleadings from relating back if the circumstances warrant. 

Wednesday, November 15, 2017
by: Jeffrey M. Dore
Section: Fall 2017
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Author Biography

Jeffrey M. Dore is an attorney at Betts, Patterson, & Mines, P.S. who focuses his practice on complex civil litigation. Jeff has defended clients ranging from taxi-cab drivers, trucking companies, and individuals in personal injury matters to general contractors, subcontractors, and homeowners’ association board members in construction defect disputes. He has obtained pre-trial dismissals in multiple recent cases (including on the issue upon which this article is based) and successfully defended clients in front of the Washington State Court of Appeals