               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0070n.06

                                          No. 09-4249

                          UNITED STATES COURT OF APPEALS                             FILED
                               FOR THE SIXTH CIRCUIT
                                                                                FEB 3, 2011
                                                                            LEONARD GREEN, Clerk
ADA M. FREESE,

               Plaintiff-Appellant,
                                                    ON APPEAL FROM THE
v.                                                  UNITED STATES DISTRICT
                                                    COURT FOR THE NORTHERN
CONTINENTAL AIRLINES, INC.,                         DISTRICT OF OHIO

            Defendant-Appellee.
_________________________________/

BEFORE: SUHRHEINRICH, COLE and COOK, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Plaintiff-Appellant Ada Freese suffered an injury

aboard a commercial airline flight in 2007. Approximately one year later she sued Defendant-

Appellee Continental Airlines, Inc. (“Continental”) on several negligence theories in Ohio state

court. Continental removed the case to federal court on diversity grounds. After the statute of

limitations expired, Continental moved for summary judgment, arguing that, because it neither

owned nor operated the flight upon which Freese incurred her injury, she had named the wrong

defendant. Freese opposed summary judgment and sought to amend her complaint pursuant to Fed.

R. Civ. P. 15 in order to name a new party defendant, the actual owner and operator of the flight,

ExpressJet. The district court granted summary judgment to Continental, agreeing that Continental

was not the proper defendant because it was not Freese’s common carrier. The district court also

denied Freese’s motion to amend as futile because the statute of limitations had expired and
concluded that the amendment did not relate back under Rule 15(c). Freese appeals both orders. We

AFFIRM in part and REMAND in part.

        We review de novo a district court’s grant of summary judgment. Kleiber v. Honda of Am.

Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). We have carefully reviewed the record, the applicable

law, and the parties’ briefs. We agree with the district court that Continental was not Freese’s

common carrier and AFFIRM, adopting its well-reasoned and thorough opinion regarding

Continental’s motion for summary judgment dated July 23, 2009.

        With regard to Freese’s motion to name ExpressJet as a new party defendant, the district

court concluded that her motion did not relate back under Rule 15(c). In support of this conclusion

the district court looked to Sixth Circuit precedent, see In re Kent Holland Die Casting & Plating,

Inc., 928 F.2d 1448, 1449 (6th Cir. 1991), which precludes relation back when the plaintiff seeks to

add a new defendant. The district court also determined that suing Continental rather than

ExpressJet was not a mistake within the meaning of the Rule 15(c), citing Moore v. Tennessee, 267

F. App’x 450, 455-56 (6th Cir. 2008), for support. At the time of its ruling, the district court

correctly applied the law. Since the district court’s ruling, in a case factually similar to this matter,

the Supreme Court addressed relation back under Rule 15(c). Krupski v. Costa Crociere S. p. A.,

– U.S. —, 130 S.Ct. 2485 (2010). Accordingly, we REMAND the denial of Freese’s motion to

amend to the district court for consideration in light of Krupski.




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