                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                           NOV 6 1997
                      UNITED STATES COURT OF APPEALS

                             FOR THE TENTH CIRCUIT                    PATRICK FISHER
                                                                               Clerk


    REBECCA MAYCHER,

                Plaintiff-Appellant,

    v.                                                    No. 97-7021
                                                    (D.C. No. CV-96-403-S)
    MUSKOGEE MEDICAL CENTER                               (E.D. Okla.)
    AUXILIARY, a nonprofit corporation,

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff appeals the district court’s denial of her motion to amend her

complaint to substitute the proper party defendant. See Fed. R. Civ. P. 15(c)(3).

Reviewing the district court’s application of Rule 15(c) de novo, see Slade v.

United States Postal Serv., 875 F.2d 814, 815 (10th Cir. 1989), we reverse.

      Plaintiff filed a charge of discrimination with the Equal Employment

Opportunity Commission (EEOC) against her employer, the Muskogee Regional

Medical Center. Upon receiving the EEOC’s right-to-sue letter, plaintiff timely

filed her Title VII complaint on August 16, 1996, naming the Muskogee Regional

Medical Center Auxiliary (the Auxiliary) as the defendant. Plaintiff’s attorney

named the Auxiliary after inquiring of the Oklahoma Secretary of State’s office as

to the official designation of the medical center. In fact, plaintiff’s employer was

actually the Muskogee Regional Medical Center Authority (the Authority); the

Auxiliary was, instead, a volunteer organization associated with the medical

center.

      On October 7, 1996, after the expiration of the ninety-day limitations

period for commencing her Title VII suit, see 42 U.S.C. § 2000e-5(f)(1), plaintiff

filed a motion to substitute the Authority as the defendant. Following the district

court’s initial order granting this motion, plaintiff served the Authority on

November 14, 1996. Subsequently, the district court vacated its order granting

the amendment and denied the substitution. In doing so, the district court


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determined that allowing the amendment would permit plaintiff to add a

defendant past the expiration of the limitations period, to the substantial prejudice

of the substituted party as it would deny the Authority its statute-of-limitations

defense. The district court then granted the Auxiliary’s motion for summary

judgment and dismissed the Title VII action. Plaintiff appeals the denial of her

motion to substitute the Authority as the proper defendant.

      Rule 15(c)(3) provides that an amendment changing “the party or the

naming of the party against whom a claim is asserted” relates back to the filing of

the original pleading if the claim “arose out of the conduct, transaction, or

occurrence set forth . . . in the original pleading,” Rule 15(c)(2), and, within the

time for service of the complaint, see Fed. R. Civ. P. 4(m),

      the party to be brought in by amendment (A) has received such notice
      of the institution of the action that the party will not be prejudiced in
      maintaining a defense on the merits, and (B) knew or should have
      known that, but for a mistake concerning the identity of the proper
      party, the action would have been brought against the party.

      The district court’s determination that to allow plaintiff to assert her Title

VII claims against the Authority after the expiration of the limitations period

would preclude the Authority from asserting the limitations defense merely begs

the question. Rule 15(c)’s “relation back doctrine is typically applied with

reference to statutes of limitations.” Alpern v. UtiliCorp United, Inc., 84 F.3d

1525, 1543 (8th Cir. 1996); see Kansa Reinsurance Co. v. Congressional


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Mortgage Corp., 20 F.3d 1362, 1366-67 (5th Cir. 1994) (Rule 15(c) allows

amendment despite applicable statute of limitations, if prerequisites are met); see

also, e.g., Anderson v. Deere & Co., 852 F.2d 1244, 1245 (10th Cir. 1988)

(applying prior Rule 15(c)). 1 If, under the terms of Rule 15(c), the amendment

should relate back to the filing of the original complaint, then plaintiff’s Title VII

claims will not be barred by the statute of limitations. See, e.g., Donald v. Cook

County Sheriff’s Dep’t, 95 F.3d 548, 557 (7th Cir. 1996); FDIC v. Conner, 20

F.3d 1376, 1385 (5th Cir. 1994).

      Further, Rule 15(c)(3) speaks only of prejudice to a party’s defense on the

merits. See Nelson v. County of Allegheny, 60 F.3d 1010, 1014-15 (3d Cir. 1995)

(“The prejudice to which . . . Rule [15(c)] refers is that suffered by one who, for

lack of timely notice that a suit has been instituted, must set about assembling

evidence and constructing a defense when the case is already stale.”) (quotation

omitted); see also Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971) (applying

prior Rule 15(c); noting that “invariably some practical prejudice result[s] from

an amendment,” but proper question under Rule 15(c) is whether party’s ability to

prepare defense is prejudiced). Defendant’s conclusory allegations that the



1
       Rule 15(c)(3), as amended in 1991, applies to this case. Like its
predecessor, the current rule requires that the party to be added receive notice
sufficient that his ability to defend will not be prejudiced. See Aslanidis v.
United States Lines, Inc., 7 F.3d 1067, 1076 (2d Cir. 1993).

                                         -4-
timing of the amended complaint substantially prejudiced the preparation of its

defense are unpersuasive.

      Applying the remainder of Rule 15(c)(3)’s requirements, there is no dispute

that plaintiff’s amended claims arose from the same conduct alleged in the

original complaint--her amendment sought only to substitute the Authority for the

Auxiliary as the defendant. See Archuleta v. Duffy’s Inc., 471 F.2d 33, 34-35 &

34 n.3 (10th Cir. 1973) (applying similar language of prior Rule 15(c)).

      The district court denied plaintiff’s motion to amend, in part, because to

allow her to do so would permit plaintiff to add a defendant past the expiration of

the limitations period. While the prior version of Rule 15(c) did require that the

party to be added receive notice of the action within the limitations period, see

Schiavone v. Fortune, 477 U.S. 21, 30-31 (1986), Rule 15(c)(3), as amended in

1991, 2 only requires that plaintiff give the additional party notice within the 120

days provided for service of the original complaint. See, e.g., Delgado-Brunet v.

Clark, 93 F.3d 339, 343-44 (7th Cir. 1996); Urrutia v. Harrisburg County Police

Dep’t, 91 F.3d 451, 458 (3d Cir. 1996). Because plaintiff served the Authority

with the amended complaint within this 120-day time frame, plaintiff satisfied

this requirement.



2
     See Sauers v. Salt Lake County, 1 F.3d 1122, 1125 n.2 (10th Cir. 1993)
(amendment to Rule 15(c) overruling Schiavone was effective December 1, 1991).

                                         -5-
      The district court also held that plaintiff had been aware of the proper

defendant and that her failure to name the Authority in the original complaint was

not due to matters outside her control. The record, however, does not support this

finding. While plaintiff obviously was aware that she was employed by the

Muskogee Regional Medical Center, she was mistaken as to its official

designation.

      Further, this is not a case where the plaintiff is aware of the identity of a

party, but makes a deliberate choice not to name that party as a defendant until

after the expiration of the limitations period, see, e.g., Rendall-Speranza v.

Nassim, 107 F.3d 913, 917-19 (D.C. Cir. 1997); Cornwell v. Robinson, 23 F.3d

694, 705 (2d Cir. 1994), nor is it a case where the plaintiff initiates litigation

against an unknown party and does not identify that party until after the

limitations period has expired, see Henry v. FDIC, 168 F.R.D. 55, 59-60 (D. Kan.

1996), and cases cited therein. Rather, plaintiff intended from the outset to sue

her employer; she just mistakenly misnamed that entity in her complaint.

Defendant’s cited authority, see Appellee’s Br. at 7-10, therefore, is inapposite.

      Plaintiff, who had been an employee of the Authority since 1992, and the

Authority had been involved in the EEOC proceedings preceding plaintiff’s Title

VII action. By statute, plaintiff ordinarily could not sue anyone other than the

employer named in the EEOC complaint, in this case designated only as the


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“Muskogee Regional Med Cntr,” Appellant’s App. at 1. See, e.g., Gonzalez-Aller

Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 860 (10th Cir. 1983) (citing 42

U.S.C. § 2000e-5(f)(1)). The Auxiliary itself had no employees. See Appellee’s

Supp. App. at 11.

       Plaintiff served the Auxiliary’s representative, who was located at the same

address as the Authority. See Appellant’s App. at 2, 28, 29, 48-49; see also id. at

46, 48 (Auxiliary’s only physical base of operations is within Authority’s medical

center). Further, in his deposition, the Authority’s chief executive officer

testified that he believed he was made aware of the original complaint at the time

plaintiff initiated this action. See id. at 52.

       Because the district court misapplied Rule 15(c)(3), denial of plaintiff’s

motion to amend was error. The judgment of the United States District Court for

the Eastern District of Oklahoma is, therefore, REVERSED, and the cause is

REMANDED for further proceedings consistent with this order and judgment.



                                                     Entered for the Court


                                                     James E. Barrett
                                                     Senior Circuit Judge




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