Maxwell v. Eastern Associated Coal Corp., Inc
In Maxwell v. Eastern Associated Coal Corp., Inc., 183 W.Va. 70, 394 S.E.2d 54 (1990), the Court held in the Syllabus:
Where a plaintiff seeks to change a party defendant by a motion to amend a complaint under Rule 15(c) of the West Virginia Rules of Civil Procedure, the amendment will relate back to the filing of the original complaint only if the proposed new party defendant, prior to the running of the statute of limitations, received such notice of the institution of the original action that he will not be prejudiced in maintaining his defense on the merits and that he knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
Rule 15(c)(3) was amended in 1998 and altered Maxwell, expanding the time when notice must be received by the party to be added to include "the period provided by Rule 4(k) for service of the summons and complaint." Rule 4(k) provides that service of the summons and complaint be "made upon a defendant within 120 days after the filing of the complaint."
In Maxwell, the plaintiffs sued two defendants, but did not serve the original complaint.
After the expiration of the statute of limitation, the plaintiffs sought to amend the complaint to add a third defendant.
The Court concluded that the plaintiffs could not, under Rule 15(c), amend their complaint because the newly-added defendants had not received notice of the original action prior to the expiration of the statute of limitation.
In reaching this decision, the Court relied on Schiavone v. Fortune, 477 U.S. 21 (1986), a decision where the court similarly interpreted Fed.R.Civ.Pro. Rule 15(c) to require notice to the new defendant prior to the expiration of the statute of limitation.