                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 10-2306
                                    _____________

                           BARBARA ANNE ANDERSON,
                                            Appellant

                                           v.

 BONDEX INTERNATIONAL, INC. An Ohio Corporation; CBS CORPORATION, A
      Delaware Corporation (Successor By Merger With CBS Corporation F/K/A
   Westinghouse Electric Corporation)Formerly Known As Viacom Inc.; GEORGIA-
    PACIFIC CORPORATION, A Georgia Corporation (Sued Individually And As
Successor-In-Interest To Bestwall Gypsum Company); IMO INDUSTRIES, A Delaware
Corporation (Sued Individually And As Successor-In-Interest To Delaval Sream Turbine
Co.); INGERSOLL-RAND COMPANY, A New Jersey Corporation (Sued Individually
And As Successor-In-Interest Terry Steam Turbine Company); OWENS-ILLINOIS INC,
A Delaware Corporation (Sued Individually And As Successor-In-Interest To Successor
                            Owens-Illinois Glass Company);
    PHILIPS ELECTRONICIS NORTH AMERICA CORPORATION, A Delaware
 Corporation (Sued Individually And As Successor-In-Interest To And As Alter-Ego To
    Thompson-Hayward Chemical Co.); PRM, INC, A Delaware Corporation (Sued
     Individually And As Successor-In-Interest To Bondex International, Inc); T H
  AGRICULTURE & NUTRITION, LLC, A Delaware Corporation (Sued Individually
     And As Successor-In-Interest To Thompson-Hayward Chemical Co.); TYCO
 INTERNATIONAL (US), INC., A Massachusetts Corporation (Sued Individually And
  As Successor-In-Interest To Yarway Corporation); TYCO VALVES & CONTROLS
 INC., A Texas Corportion (Sued Individually And As Successor-In-Interest To Yarway
    Corporation); UNION CARBIDE CORPORATION, A New York Corporation;
   YARWAY CORPORATION, A Delaware Corporation (Sued Individually And As
                    Successor-In-Interest To Yarnall Warning Co.)*
      *
         Appellees Specialty Products Holding Corp. f/k/a RPM, Inc. and Bondex
International, Inc. filed petitions for relief under Chapter 11 of the Bankruptcy Code.
Accordingly, the appeal was stayed by Clerk Order on June 18, 2010 pursuant to 11
U.S.C. § 362. On October 12, 2010, we issued an order severing the case and lifting the
stay as to Appellees Georgia-Pacific Corporation and Union Carbide Corporation. The
appeal remains stayed as to all other defendants.
                                       _____________

                       On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                               (D.C. Civil No. 2-07-cv-63839)
                       District Judge: Honorable Eduardo C. Robreno
                                        ___________

                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                       May 31, 2013

                     Before: JORDAN, VANASKIE, Circuit Judges, and
                              RAKOFF*, Senior District Judge.

                                   (Filed: January 7, 2014)
                                        ___________

                                         OPINION
                                        ___________

VANASKIE, Circuit Judge.

          Barbara Anderson appeals from an order of the District Court finding that her

proposed amended complaint did not relate back to her original pleading. Because we

agree with the District Court that the two pleadings did not arise out of the same

“conduct, transaction, or occurrence,” as required by Fed. R. Civ. P. 15(c)(1)(B), we will

affirm.

                                               I.

          On August 16, 2006, Barbara Anderson was diagnosed with mesothelioma. She

filed a complaint in the Circuit Court for the City of Richmond on October 26, 2006,

alleging that her mesothelioma was caused by exposure to “asbestos dust and fibers from

          *
        The Honorable Jed. S. Rakoff, United States Senior District Judge for the United
States District Court for the Southern District of New York, sitting by designation.

                                               2
[her father’s] asbestos-laden workclothes.” (Appendix (“A.”) 60.) Anderson’s father

worked as a pipe cover insulator at Portsmouth Naval Shipyard. Anderson argued that

she was exposed to asbestos from 1947, when her father began working at the Shipyard,

until 1956. Anderson named more than twenty defendants, including Georgia-Pacific

Corporation (“Georgia-Pacific”), and Union Carbide Corporation (“Union Carbide”)

(collectively, “Appellees”), alleging she was entitled to recover under theories of

negligence and breach of warranty. Hoping to avoid removal to federal court, Anderson

also “disclaim[ed] any cause of action for any injuries caused by any exposure to asbestos

dust that occurred in a federal enclave.” (A. 65 ¶ 10.)

       At the time she filed her original complaint, Anderson believed her only exposure

to asbestos occurred from 1947 to 1956, when she lived with her father while he was

working at the Naval Shipyard. When Anderson was subsequently deposed in January

2007, however, she testified that she believed she was also exposed to asbestos dust in

Federal office buildings where she worked during the 1960s and ‘70s.

       Based on Anderson’s deposition testimony, Georgia-Pacific filed a notice of

removal, explaining that Anderson alleged asbestos exposure during her employment in

buildings located within federal enclaves, and that, as such, the action was removable

pursuant to 28 U.S.C. § 1441. The case proceeded in federal court as part of the asbestos

Multidistrict Litigation in the Eastern District of Pennsylvania, and Magistrate Judge

David Strawbridge oversaw the pretrial proceedings.

       On May 21, 2009, several defendants filed motions for summary judgment. On

June 10, 2009, Anderson filed a motion to amend her original complaint. In addition to

                                             3
removing the federal enclave disclaimer, her proposed amended complaint alleged that

she “was exposed to dust from asbestos-containing joint compound products during

ongoing construction and renovation projects taking place in the office buildings where

she worked” during the 1960s and ‘70s. (A. 578 ¶ 1.) Her amended complaint did not

include the allegations of household asbestos exposure during her childhood.

       The Magistrate Judge denied Anderson’s motion for leave to amend, finding that

the proposed amended complaint was barred by the applicable statute of limitations and

did not relate back to her original complaint because it alleged a subsequent phase of

asbestos exposure. Anderson filed objections to the Magistrate Judge’s order, which the

District Court overruled.

       Anderson now appeals the District Court’s order overruling her objections,

arguing the District Court erred in finding that her amended complaint does not relate

back to her original pleading. Specifically, she argues the District Court erroneously

applied a standard for relation back that is limited to habeas corpus proceedings, and

erred in finding that notice to defendants of an amended claim must come from the

original complaint.

                                             II.

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441. We

have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a district court’s interpretation and application of the Federal Rules of Civil

Procedure. Glover v. FDIC, 698 F.3d 139, 144 (3d Cir. 2012). However, we review a

district court’s factual conclusions as to a motion to amend for clear error, Singletary v.

                                              4
Pa. Dep’t of Corrections, 266 F.3d 186, 193 (3d Cir. 2001), and its decision to grant or

deny a motion to amend for abuse of discretion. Budget Blinds, Inc. v. White, 536 F.3d

244, 252 (3d Cir. 2008).

                                             A.

       Anderson first argues that the District Court misapplied Federal Rule of Civil

Procedure 15, which governs amended pleadings, by employing the Supreme Court’s

holding in Mayle v. Felix, 545 U.S. 644 (2005). She contends that Mayle established an

exacting test for relation back that should be limited to federal habeas corpus

proceedings.1

       Federal Rule of Civil Procedure 15 provides, in the context relevant here, that “a

party may amend its pleading only with the opposing party’s written consent or the

court’s leave.” Fed. R. Civ. P. 15(a)(2). Rule 15 counsels courts to “freely give leave [to

amend] when justice so requires.” Id. However, “undue delay, bad faith, and futility”

justify a court’s denial of leave to amend, Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d

Cir. 2006), and amendment of a complaint is “futile” if “that claim would not be able to

overcome the statute of limitations.” Cowell v. Palmer Twp., 263 F.3d 286, 296 (3d Cir.



       1
         Appellees contend Anderson waived this argument because she failed to raise it
before the District Court. While they concede that Anderson presented a version of the
argument in footnote three of her Brief in Support of Her Objections, see (A. 727),
Appellees argue this was merely “[a] fleeting reference or vague allusion” that failed to
“present[] the argument with sufficient specificity to alert the district court.” In re Ins.
Brokerage Antitrust Litigation, 579 F.3d 241, 262 (3d Cir. 2009). We disagree.
Anderson’s explicit presentation of the issue was sufficient to preserve it for our review.
See id. (holding “explicit mention” and “brief discussion” of issues sufficient to preserve
for appellate review).

                                              5
2001). Where a claim is barred by the statute of limitations, amendment is only

permitted if the proposed amended complaint “relates back to the date of the original

pleading” pursuant to Rule 15(c).

       Here, it is undisputed that Anderson’s claims are governed by Virginia’s two-year

statute of limitations. See Va. Code Ann. §§ 8.01-243 and 8.01-249(4). It is also

undisputed that, unless the amended complaint relates back to her original complaint,

Anderson’s claims are time-barred.2

       Rule 15(c) provides, in pertinent part, that “[a]n amendment to a pleading relates

back to the date of the original pleading when . . . the amendment asserts a claim or

defense that arose out of the conduct, transaction, or occurrence set out--or attempted to

be set out--in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B).3 We have interpreted



       2
          Virginia law requires personal injury claims to “be brought within two years
after the cause of action accrues.” Va. Code Ann. § 8.01-243. In cases alleging injury as
a result of asbestos exposure, the cause of action accrues “when a diagnosis of asbestosis,
interstitial fibrosis, mesothelioma, or other disabling asbestos-related injury or disease is
first communicated to the person or his agent by a physician.” Va. Code Ann. § 8.01-
249(4). Anderson was diagnosed with mesothelioma on August 16, 2006. Thus, the
statute of limitations period expired on August 16, 2008. Anderson did not move for
leave to amend her complaint until June 10, 2009, nearly ten months after the statute of
limitations had run.
       3
           The full text of Federal Rule of Civil Procedure 15(c)(1) provides:
                (1) When an Amendment Relates Back. An amendment to a
                pleading relates back to the date of the original pleading
                when:
                    (A) the law that provides the applicable statute of
                    limitations allows relation back;
                    (B) the amendment asserts a claim or defense that arose
                    out of the conduct, transaction, or occurrence set out--or
                    attempted to be set out-- in the original pleading; or
                                               6
Rule 15(c) as requiring “a common core of operative facts in the two pleadings.” Bensel

v. Allied Pilots Ass’n, 387 F.3d 298, 310 (3d Cir. 2004). Accordingly, proposed

amendments relate back if they “restate the original claim with greater particularity or

amplify the factual circumstances surrounding the pertinent conduct, transaction or

occurrence in the preceding pleading.” Id.

       Interpreting Rule 15(c)’s application to petitions for habeas corpus, the Supreme

Court held that “[a]n amended habeas petition . . . does not relate back . . . when it asserts

a new ground for relief supported by facts that differ in both time and type from those the

original pleading set forth.” Mayle, 545 U.S. at 650. The Magistrate Judge quoted this

language in its Memorandum Opinion, noting that, although the Court decided Mayle in

the context of habeas corpus, the principle “applies equally here” because Mayle was

predicated on the relevant subsection of Rule 15(c). (A. 7.) The District Court adopted



                  (C) the amendment changes the party or the naming of the
                  party against whom a claim is asserted, if Rule
                  15(c)(1)(B) is satisfied and if, within the period provided
                  by Rule 4(m) for serving the summons and complaint, the
                  party to be brought in by amendment:
                     (i) received such notice of the action that it will not be
                     prejudiced in defending on the merits; and
                     (ii) knew or should have known that the action would
                     have been brought against it, but for a mistake
                     concerning the proper party’s identity.

Here, neither party asserts that Fed. R. Civ. P. 15(c)(1)(C) applies. The parties also agree
that section 15(c)(1)(A) is immaterial because it gives a party the benefit of whichever
standard for relation back is most lenient, and that the federal rule is “either equivalent to
or more lenient than its Virginia equivalent, Va. Code Ann. § 8.01-6.1.” (Appellant’s Br.
20.) Accordingly, our discussion focuses on Fed. R. Civ. P. 15(c)(1)(B).


                                              7
the reasoning of the Magistrate Judge, but did not reference the “time and type” language

from Mayle. Instead, the District Court merely cited that case for the general “common

core of operative fact” test.

       Nevertheless, Anderson argues the District Court erred in applying the standard

expounded in Mayle, which, she asserts, is more stringent than the standard for ordinary

civil cases. She urges that the proper inquiry is set out in Tiller v. Atlantic Coast Line R.

Co., 323 U.S. 574 (1945), where the Supreme Court held that an amended complaint

related back even though it added a new claim. In Tiller, a widow brought suit against a

railroad company after her husband was struck and killed by a railroad car. The original

complaint in Tiller alleged negligence for failure to provide a lookout who could warn of

coming trains, and the amended complaint alleged negligence for failure to properly light

the railroad car. Id. at 580. Asserting that, under Tiller, relation back is proper even if

the amended pleading alters the “mode in which the defendant breached the legal duty or

caused the injury,” (Appellant’s Br. 27 (citing Davis v. Yellow Cab Co., 35 F.R.D. 159,

161 (E.D. Pa. 1964)), Anderson argues her amended complaint relates back under this

standard.

       We are not persuaded. First, we note that the District Court did not rely on the

Mayle “time and type” language, but instead applied the long-standing test for relation

back, which analyzes whether the amended complaint shares a “common core of

operative fact” with the original pleading. Bensel, 387 F.3d at 310.

       Second, the Supreme Court’s analysis in Mayle was consistent with – not more

exacting than – its application of Rule 15(c) in other contexts. Mayle, 545 U.S. at 664

                                              8
(“Our reading is consistent with the general application of Rule 15(c)(2).”). Indeed,

rather than holding that Rule 15(c) should be applied more rigorously in the habeas

context, the Supreme Court explained that it was reining in what it saw as the lower

courts’ more liberal construction of Rule 15(c) in habeas cases than in “run-of-the-mine

civil proceedings.” Id. at 657. Thus, we have utilized Mayle’s “time and type” language

in the non-habeas civil context. See Glover, 698 F.3d at 147 (“In other words,

[Appellant’s] amended FDCPA claims differed in ‘time and type’ from the claims earlier

alleged.”) (citing Mayle, 545 U.S. at 657-59).

       Furthermore, Anderson does not meet the general standards for relation back as set

forth in Tiller or Bensel. Relation back under Rule 15(c) requires an amended complaint

to share a “common core of operative facts” with the original pleading. Bensel, 387 F.3d

at 310. Although Anderson characterizes her proposed amendment as merely “alter[ing]

the mode by which defendants caused the injury,” (Appellant’s Br. 17), her amended

complaint alleges entirely separate exposure years later while she herself was working.

We therefore agree with the District Court that “[t]he only thing that the two complaints

have in common is [Anderson] herself, and the unfortunate fact that she may have been

exposed to asbestos twice in her life, under unrelated circumstances.” (A. 22.) Thus, we

conclude that the District Court properly interpreted and applied Rule 15(c).

                                             B.

       Anderson next argues that she meets the requirements for relation back because

the defendants in this case had actual notice of her intent to pursue a claim based on her

workplace exposure to asbestos in the 1960s and ‘70s. Specifically, she asserts that the

                                             9
District Court erred in finding that notice must come from the original pleading, and in

finding that her original complaint failed to put defendants on notice of her amended

claim.

         We have explained that fair notice is “the touchstone for relation back . . . because

Rule 15(c) is premised on the theory that ‘a party who has been notified of litigation

concerning a particular occurrence has been given all the notice that statutes of

limitations were intended to provide.’” Glover, 698 F.3d at 146 (quoting Baldwin Cty.

Welcome Ctr. v. Brown, 466 U.S. 147, 149 n.3 (1984)). Our precedent states

unequivocally, however, that an amendment does not relate back “where the original

pleading does not give a defendant ‘fair notice of what the plaintiff’s [amended] claim is

and the grounds up on which it rests.’” Glover, 698 F.3d at 146 (quoting Baldwin, 466

U.S. at 149 n.3) (emphasis added). We therefore reject Anderson’s argument that notice

need not come from the original pleading.

         We likewise reject Anderson’s contention that her original complaint put

Appellees on notice of her amended claim. The original complaint made no mention of

workplace exposure during the 1960s and ‘70s, and in fact explicitly disclaimed any

cause of action related to her employment within federal enclaves.

         Accordingly, we agree with the District Court that Anderson was required to

provide fair notice in her original pleading of asbestos exposure in the workplace, and

that she failed to do so. Thus, we conclude that the District Court did not abuse its

discretion in denying Anderson’s motion for leave to amend her pleadings.

                                              III.

                                              10
For the foregoing reasons, we will affirm the judgment of the District Court.




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