     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                           February 06, 2020

                                2020COA22

No. 19CA0033, Ruiz v. Chappell — Civil Procedure — Amended
and Supplemental Pleadings — Relation Back of Amendments

     Disagreeing with Lavarato v. Branney, 210 P.3d 485 (Colo.

App. 2009), a division of the court of appeals adopts instead the

rationale of Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010),

for determining whether an amended complaint relates back to the

filing of the original complaint under C.R.C.P. 15(c). The division

reverses and remands the case for the district court to apply that

rationale. On remand, the court must determine whether the newly

named defendant knew or should have known that, if it were not for

a mistake, the action would have been brought against her, and

whether she received such notice of the commencement of the

action that she will not be prejudiced in maintaining a defense on
the merits to the action. If those criteria are met, the court must

reinstate the complaint against the newly named defendant.
COLORADO COURT OF APPEALS                                         2020COA22


Court of Appeals No. 19CA0033
Larimer County District Court No. 17CV31098
Honorable Gregory M. Lammons, Judge


Marissa Ruiz,

Plaintiff-Appellant,

v.

Rachel L. Chappell,

Defendant-Appellee.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division II
                          Opinion by JUDGE TERRY
                          Webb and Tow, JJ., concur

                         Announced February 6, 2020


Mintz Law Firm, LLC, Robin E. Scully, Lakewood, Colorado, for Plaintiff-
Appellant

Murphy & Decker, P.C., Daniel P. Murphy, David R. Anderson, Denver,
Colorado, for Defendant-Appellee
¶1    In this premises liability suit, plaintiff, Marissa Ruiz, alleged

 that she sustained injuries after she slipped and fell on ice on a

 walkway outside a 7-Eleven store. She appeals the district court’s

 order, which granted summary judgment for defendant, Rachel L.

 Chappell, on the basis that the statute of limitations had run on

 Ruiz’s claim.

¶2    Ruiz had originally sued only 7-Eleven, Inc., and spent

 months negotiating with that company. But the record strongly

 suggests that she learned from the company’s motion for summary

 judgment — filed after the statute of limitations had expired — that

 7-Eleven had a franchise agreement with Chappell that made

 Chappell, as franchisee, solely responsible for maintaining the

 walkway outside the store. After the court granted summary

 judgment for 7-Eleven, Ruiz amended her complaint, naming

 Chappell as the sole defendant. In granting Chappell summary

 judgment on the amended complaint as time barred, the district

 court applied the rationale of Lavarato v. Branney, 210 P.3d 485

 (Colo. App. 2009), and ruled that Ruiz’s amended complaint naming

 Chappell did not relate back to the filing of her original complaint

 under C.R.C.P. 15(c).


                                    1
¶3    We conclude that the court should have instead applied the

 rationale of the United States Supreme Court in Krupski v. Costa

 Crociere S.p.A., 560 U.S. 538 (2010). That case addressed Fed. R.

 Civ. P. 15(c), the pertinent portion of which — though it contains

 slightly different wording — is functionally identical to the

 corresponding part of C.R.C.P. 15(c). Under the Supreme Court’s

 rationale, the district court here should have looked at whether the

 proposed new defendant — Chappell — knew or should have known

 that, but for a mistake, the suit would have been brought against

 her. As a result, we reverse and remand for further proceedings.

                           I.    Background

¶4    After Ruiz’s negotiations with 7-Eleven broke down, she filed a

 complaint against the company under the Colorado Premises

 Liability Act (PLA). 7-Eleven’s summary judgment motion argued

 that it was not a landowner under the PLA because its franchise

 agreement allocated the responsibility for walkway maintenance to

 Chappell. In entering summary judgment, the court reasoned that

 because 7-Eleven did not have possession or control of the

 property, it was not liable under the PLA. Ruiz does not appeal this

 ruling.


                                    2
¶5      Ruiz then filed an amended complaint naming Chappell as

 defendant, but Chappell moved to dismiss the action as time

 barred. The court converted Chappell’s motion to dismiss to a

 motion for summary judgment, which it granted, concluding that

 Ruiz’s amended complaint did not relate back to the date of the

 original complaint’s filing. This is the judgment that concerns us

 now.

¶6      Relying on Lavarato, the court said that this case does not

 involve “a simple misnomer or misidentification,” and concluded

 that Ruiz had not made a mistake that would allow her amended

 complaint to relate back to her original complaint under C.R.C.P.

 15(c). The court said that it appeared that after she had initiated

 her action against 7-Eleven, Ruiz discovered that another person

 might be liable for her injuries.

               II.   Preservation and Standard of Review

¶7      Ruiz preserved the argument she now raises on appeal when

 she contended in the district court that, as applied to these facts,

 Lavarato could no longer be considered persuasive authority in light

 of the Supreme Court’s Krupski decision.




                                     3
¶8    Summary judgment is a drastic remedy and should only be

 granted when the pleadings and supporting documentation

 demonstrate that no genuine issue as to any material fact exists

 and the moving party is entitled to judgment as a matter of law.

 West Elk Ranch, L.L.C. v. United States, 65 P.3d 479, 481 (Colo.

 2002). We review the grant of summary judgment de novo. Id. The

 nonmoving party receives the benefit of all favorable inferences from

 the undisputed facts, and all doubts as to the existence of a triable

 issue of fact are resolved against the moving party. Id.

                             III.   Analysis

                  A.   We Adopt Krupski’s Rationale

¶9    Three requirements must be met for a claim in an amended

 complaint against a new party to relate back to the filing of the

 original complaint under C.R.C.P. 15(c): (1) the claim must have

 arisen out of the same conduct, transaction, or occurrence set forth

 in the original complaint; (2) the party to be brought in by

 amendment received such notice of the institution of the action that

 she will not be prejudiced in maintaining her defense on the merits;

 and (3) the party to be brought in by amendment knew or should

 have known that, but for a mistake concerning the identity of the


                                    4
  proper party, the action would have been brought against her.

  C.R.C.P. 15(c); see also Lavarato, 210 P.3d at 488.

¶ 10   Our Colorado Rule 15(c) is consistent with Fed. R. Civ. P.

  15(c). Because our rule has substantially similar language to the

  federal rule, we consider federal cases interpreting the mistake-in-

  identity portion of the federal rule as persuasive in interpreting the

  corresponding part of our rule. See Lavarato, 210 P.3d at 488-89.

¶ 11   We view the Supreme Court’s unanimous Krupski decision as

  well reasoned and influential in interpreting our own Rule 15(c).

  There, plaintiff Krupski filed a negligence complaint against Costa

  Cruise Lines for injuries she suffered on a cruise ship. Krupski,

  560 U.S. at 543. After the statute of limitations had run, Krupski

  was made aware that Costa Crociere was the proper defendant, and

  she amended the complaint to add that entity as a party. Id. at

  543-44.

¶ 12   The Supreme Court reversed the summary judgment that had

  been entered against Krupski, reasoning that the relevant question

  under Fed. R. Civ. P. 15(c) is whether the proper entity knew or

  should have known that it would have been named as a defendant

  but for an error. Id. at 548.


                                     5
¶ 13   Therefore, the district court here had to determine whether

  Chappell knew or should have known that, absent some mistake,

  the action would have been brought against her. Id. at 548-49.

¶ 14   As Krupski instructs, the district court should have first

  determined whether Ruiz made a deliberate choice to sue 7-Eleven

  rather than Chappell, while fully understanding the respective roles

  of the two. “[M]aking a deliberate choice to sue one party instead of

  another while fully understanding the factual and legal differences

  between the two parties is the antithesis of making a mistake

  concerning the proper party’s identity.” Id. at 549. If she did make

  such a deliberate choice, then judgment would have been properly

  entered against Ruiz.

¶ 15   But if Ruiz did not make such a deliberate choice, then the

  court had to determine whether Chappell knew or should have

  known that, if it were not for a mistake, Ruiz’s action would have

  been brought against Chappell. And if the court were to find that

  Chappell did know, or should have known, that she would have

  been sued but for a mistake, then the court must determine

  whether Chappell received such notice of the commencement of the




                                    6
  action that she will not be prejudiced in maintaining a defense on

  the merits of the action. See C.R.C.P. 15(c)(2).

¶ 16   We reject Chappell’s contention that because Ruiz did not

  know Chappell’s identity when she filed her original complaint,

  Krupski does not apply to her case and she is precluded from

  claiming that she made a “mistake” regarding the proper

  defendant’s identity.

¶ 17   The Krupski Court addressed the issue of a plaintiff’s

  knowledge. The trial court in Krupski had concluded that because

  the plaintiff either knew or should have known of the proper party’s

  identity, she had made a deliberate choice instead of a mistake in

  not naming Costa Crociere as a party. 560 U.S. at 548. The

  Supreme Court rejected that notion, stating that by focusing on the

  plaintiff’s knowledge, the court “chose the wrong starting point.” Id.

  Instead, the focus is on whether the proposed new defendant knew

  or should have known that, “but for an error,” the suit would have

  been brought against the new defendant. Id. The Court further

  explained that “[i]nformation in the plaintiff’s possession is relevant

  only if it bears on the defendant’s understanding of whether the




                                     7
  plaintiff made a mistake regarding the proper party’s identity.” Id.

  (Emphasis added.)

¶ 18   We are persuaded by the Court’s reasoning in Krupski because

  the language of Rule 15(c) focuses the inquiry on the proposed new

  defendant’s knowledge, not the plaintiff’s knowledge. We therefore

  conclude that Ruiz’s lack of knowledge of the proper defendant’s

  identity would not preclude a finding of mistake that might allow

  her claim to proceed.

                          B.   “John Doe” Cases

¶ 19   In discussing knowledge of the proper party’s identity,

  Chappell cites a number of so-called “John Doe” cases, in which the

  plaintiff lacked knowledge of the name of the intended defendant,

  naming him as a party in the complaint under a fictitious name

  such as “John Doe.” In those cases, the majority of the federal

  circuit courts, including the Tenth Circuit, have held that where a

  plaintiff lacked knowledge of the intended defendant’s identity and

  failed to name him as a party in the complaint, naming him instead

  as “John Doe,” the plaintiff did not make a “mistake concerning the

  proper party’s identity” within the meaning of Fed. R. Civ. P. 15(c).

  See Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004); see also


                                    8
  Heglund v. Aitkin County, 871 F.3d 572 (8th Cir. 2017); Smith v.

  City of Akron, 476 F. App’x 67, 69 (6th Cir. 2012); Wayne v. Jarvis,

  197 F.3d 1098, 1103 (11th Cir. 1999), overruled in part on other

  grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en

  banc); Jacobsen v. Osborne, 133 F.3d 315, 320-21 (5th Cir. 1998);

  Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 468-70 (2d Cir.

  1995), modified, 74 F.3d 1366 (2d Cir. 1996); Worthington v. Wilson,

  8 F.3d 1253, 1256-57 (7th Cir. 1993). But see Varlack v. SWC

  Caribbean, Inc., 550 F.2d 171, 175 (3d Cir. 1977) (concluding that

  the plaintiff could amend the complaint to name a defendant who

  was initially unnamed where the defendant testified that he knew

  that the complaint referred to him).

¶ 20   But those cases are inapposite to our facts. In the “John Doe”

  cases, the plaintiffs did not know the proper defendant’s identity

  and intentionally failed to give the defendant’s true name in the

  complaint. The intentional misnaming of a party is by definition

  not a “mistake.” See Ceara v. Deacon, 916 F.3d 208, 213 (2d Cir.

  2019) (distinguishing Krupski — where the plaintiff made a mistake

  because she misunderstood crucial facts regarding the two

  companies’ identities — from “John Doe” cases where the plaintiff is


                                    9
  unaware of the defendant’s true identity); Heglund, 871 F.3d at

  579-80 (highlighting that a “mistake” involves inadvertence or an

  unintentional error through lack of understanding, whereas “John

  Doe” cases involve an intentional misidentification).

¶ 21   The “John Doe” cases, therefore, do not affect our ruling.

                              C.    Lavarato

¶ 22   The district court was, of course, bound to apply Lavarato.

  See C.A.R. 35(e). In adopting the Krupski Court’s rationale, rather

  than Lavarato’s, we do not intend to criticize the ultimate holding of

  the division in that case. The facts of Lavarato are distinguishable

  from those in this case.

¶ 23   In Lavarato, the plaintiff filed a professional negligence

  complaint naming a doctor — Dr. Mann — as the sole defendant.

  210 P.3d at 487. After the statute of limitations had expired, the

  plaintiff amended his complaint to add a second doctor as a

  defendant — Dr. Branney — for separate conduct than that alleged

  against Dr. Mann. Id. The plaintiff said that he was unaware that

  he had a claim against Dr. Branney until after he had filed the

  original complaint. Id. at 489.




                                    10
¶ 24   On appeal, the division affirmed the district court’s dismissal

  of the plaintiff’s action, concluding that the amended complaint did

  not relate back to the original complaint because the plaintiff failed

  to meet the mistake requirement. Id. The division relied on federal

  case law interpreting Fed. R. Civ. P. 15(c) in holding that a plaintiff’s

  ignorance or misunderstanding about who is liable for her injury is

  not a “mistake” as to the defendant’s identity. Id.

¶ 25   The division reasoned that the rule generally permits relation

  back in order to correct a misnomer where the proper party is

  already before the court and the effect is to merely correct the name

  under which the party is sued, and thus, the rule is meant to allow

  changes only where they result from an error such as misnomer or

  misidentification. Id. The division noted that “[a] plaintiff is

  responsible for determining who is liable for her injury and for

  doing so before the statute of limitations expires.” Id. And the

  division concluded that, because Dr. Branney had no reason to

  believe that the plaintiff did anything other than make a deliberate

  choice to sue one potential defendant, but not others, he could not

  have known that but for a mistake in identity, the action was




                                     11
  intended to be brought against him. The plaintiff thus could not

  meet the tests of Rule 15(c).

¶ 26    Lavarato distinguished its holding from our supreme court’s

  decision in Dillingham v. Greeley Publishing Co., 701 P.2d 27 (Colo.

  1985). In Dillingham, the plaintiff had filed a complaint against a

  corporation that had since been dissolved, intending to sue the

  owner of a newspaper. Id. at 31. When the plaintiff discovered that

  the named corporation had sold the newspaper, he moved to amend

  his complaint to substitute the correct corporate defendant. Id.

  The supreme court concluded that the plaintiff had shown a

  mistake as to the identity of the corporation and held that the

  district court should have granted the plaintiff’s motion to amend.

  Id.

¶ 27    Lavarato noted that, unlike in Lavarato’s case, Dillingham

  “involved the substitution of the correctly named defendant for a

  misnamed defendant, and not the proposed addition of a

  defendant.” Lavarato, 210 P.3d at 489-90.

¶ 28    The Lavarato division said:

                  Here, Mr. Lavarato asserts only that he
             was unaware that he had a claim against Dr.
             Branney until after he filed the original


                                      12
                complaint. He did not misname Dr. Branney
                or mistake his identity in the original
                complaint.

                Furthermore, neither the original complaint
                nor the amended complaint gave Dr. Branney
                any reason to believe that, but for a mistake in
                identity, he would have been named as a
                defendant. The complaint plainly asserted a
                basis for a claim against Dr. Mann, as does the
                amended complaint. And, the complaint
                identified other doctors involved in the
                diagnosis and treatment of Mr. Lavarato’s
                condition. There was no reason for Dr.
                Branney to have believed that Mr. Lavarato did
                anything other than make a deliberate choice
                to sue one potential defendant, but not others,
                in initially suing only Dr. Mann. For this
                reason as well, the third requirement of Rule
                15(c) is not met.

  Id. at 489.

¶ 29   Unlike this case, Lavarato involved a plaintiff who, only after

  the expiration of the statute of limitations, discovered that he had

  failed to name a second defendant against whom he also wanted to

  assert a claim, based on different actions and responsibilities than

  those of the doctor whom he had originally sued.

¶ 30   Ruiz’s pleadings, however, show that she intended to bring her

  claim against the party responsible for maintaining the safety of the

  walkway outside the store, and appears to have initially believed



                                      13
  that party was 7-Eleven. These circumstances make this case

  similar to Dillingham, where the plaintiff substituted defendants.

  See Dillingham, 701 P.2d at 31.

¶ 31   Lavarato is also different from Krupski in that the Lavarato

  division said that Dr. Branney had no reason to know that he would

  be named a defendant but for the plaintiff’s mistake. 210 P.3d at

  489. We therefore see no fundamental disagreement between our

  holding and Lavarato’s.

¶ 32   But we disagree with Lavarato’s statement that a plaintiff’s

  “ignorance or misunderstanding about who is liable for her injury is

  not a ‘mistake’ as to the defendant’s identity.” 210 P.3d at 489.

  This statement is inconsistent with Krupski, see 560 U.S. at 548

  (focus is on the proposed new defendant’s knowledge, not on the

  plaintiff’s knowledge), and we are persuaded instead by the

  Supreme Court’s analysis on this point. See Warne v. Hall, 2016

  CO 50, ¶ 17 (recognizing benefit in interpreting similar state and

  federal procedural rules in a similar way).

                            IV.   Conclusion

¶ 33   The judgment is reversed, and the case is remanded to the

  district court for further proceedings. On remand, the court must


                                    14
  first determine whether Ruiz made a deliberate choice to sue 7-

  Eleven rather than Chappell, while fully understanding the

  respective roles of the two; if that is the case, then that is the

  “antithesis of making a mistake concerning the proper party’s

  identity,” Krupski, 560 U.S. at 549, and the court must re-enter

  summary judgment for Chappell.

¶ 34   If that is not the case, then the court must determine whether,

  within the period provided by law for commencing the action under

  C.R.C.P. 4(m):

          • Chappell knew or should have known that, if it were not

             for a mistake, Ruiz’s action would have been brought

             against Chappell, see C.R.C.P. 15(c)(2); and

          • Chappell received such notice of the commencement of

             the action that she will not be prejudiced in maintaining

             a defense on the merits to the action, see C.R.C.P.

             15(c)(1).

  If the court determines that Chappell had such knowledge and will

  not be prejudiced by Ruiz’s delay, the court must reinstate Ruiz’s

  complaint against Chappell. If there are disputed issues of material

  facts on these matters, the court must allow limited discovery and a

                                     15
hearing on these issues before deciding whether to reinstate the

complaint.

     JUDGE WEBB and JUDGE TOW concur.




                                 16
