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STOPPELMAN v. OWENS

May 23, 1983

Stoppelman, et al.
v.
Charles R. Owens, et al.


Robinson, Chief Judge.


The opinion of the court was delivered by: ROBINSON

ROBINSON, Chief Judge:

This action involves alleged violations of federal securities laws in connection with the sale of partnership interests in a limited partnership entitled "Oil Well Equipment 1980." The case was tried in this Court in March and April of 1983. Defendants filed a pretrial motion for partial judgment on the pleadings. More specifically, Defendants moved for dismissal of the Second Amended Complaint in the above-captioned action for lack of subject matter jurisdiction over claims which they allege are barred by the statute of limitations. The Court reserved ruling on Defendants' motion until after trial in order that Plaintiffs might have a reasonable opportunity to respond adequately. The motion is now before the Court for disposition.

 Rule 12(c) provides

 
after the pleadings are closed, but within such time as not to delay trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

 Both parties have presented matters outside the pleadings in support of or in opposition to this motion. The Court, therefore, will treat this Rule 12(c) motion as a motion for summary judgment as provided in Rule 56 of the Federal Rules of Civil Procedure.

 12(1) Claims of the Additional Plaintiffs

 The cause of action created by § 12(1) of the 1933 Securities Act, 15 U.S.C. § 77l(1), is governed by a one year statute of limitations. The Act provides that "no action shall be maintained . . . if the action is to enforce liability created under § 12(1) of this title, unless brought within one year after the violation upon which it is based." 15 U.S.C. § 77m. The limited partnership subscriptions at issue in this case were accepted by the General Partner and promoter, Defendant Owens & Company, Inc. by letter from Defendant Charles R. Owens on July 31, 1980. For the purpose of computing the statute of limitations for the § 12(1) claims, the Court concludes that the date of the violation was July 31, 1980. The § 12(1) statute of limitations did not expire, therefore, until after July 31, 1981, one year after the date of violation. In this action, however, Defendants Charles Owens and Owens and Company entered into agreements with Plaintiffs to extend the § 12(1) statute of limitations to October 31, 1981. The § 12(2) statute of limitations was not extended by these agreements. In addition, Defendant Owens Equities Corporation was not a party to such agreements.

 Plaintiffs Stoppelman and Cohen filed the Complaint in this action on October 30, 1981, one day prior to the expiration of the § 12(1) statute of limitations. The other Plaintiffs in this action were not parties to that complaint. On January 22, 1982, however, Plaintiffs Stoppelman and Cohen amended the complaint by adding the other limited partners as Plaintiffs in this action. Defendants contend that Rule 15(c) of the Federal Rules of Civil Procedure does not provide, as Plaintiffs contend, a method by which a plaintiff can "breathe life into an expired claim." Specifically, Defendants contend that on its face the relation back provision of Rule 15(c) does not cover the situation presented here, namely, where a barred plaintiff attempts to join, after the statute has expired, an action brought by other plaintiffs.

 Rule 15(c) provides

 Although Rule 15(c) only refers to an amendment "changing the party," the Court concludes that "the word 'changing' must be given a sensible and practical construction," Meredith v. United Air Lines, 41 F.R.D. 34, 39 (S.D. Calif. 1966), and a party may be added when the requisite notice and identity of interests showings are made. 3 J. Moore, Moore's Federal Practice para. 15.15 [4.-2] (2d ed. 1982). Similarly, although Rule 15(c), on its face, only addresses "changing the party against whom a claim is asserted," it is clear that the rule is applicable to amendments substituting or changing plaintiffs as well.

 
The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15(c) since the problem is generally easier. Again the chief consideration of policy is that of the statute of limitations, and the attitude taken in revised Rule 15(c) toward change of defendants extends by analogy to amendments changing plaintiffs.

 Fed. R. Civ. P. 15(c) advisory committee note of 1966. In determining whether an amended complaint relates back to the original complaint, the crucial factor is whether the amended complaint arises out of the conduct, transaction or occurrence set forth in the original complaint. Staren v. American National Bank & Trust Company of Chicago, 529 F.2d 1257, 1263 (7th Cir. 1976). The addition of parties after the statute of limitations has run is not significant when the amendment in "no way alters the known facts and issues on which the action is based." Id.

 In the case at bar, the amended complaint of January 22, 1982 did no more than add additional Plaintiffs to this action. The additional Plaintiffs, like the original Plaintiffs Stoppelman and Cohen, are limited partners in Oil Well Equipment 1980. Their claims arise out of the same conduct, transaction, or occurrence alleged in the original complaint. This case is similar to, although not identical to, DeFranco v. United States, 18 F.R.D. 156 (S.D. Calif. 1955). Even though that ...


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