Rule 15 & 4(m) . . . what's the issue?

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
portaprokoss
Posts: 218
Joined: Wed Nov 23, 2011 2:40 pm

Rule 15 & 4(m) . . . what's the issue?

Postby portaprokoss » Fri Dec 09, 2011 12:04 am

Apparently there is some sort of oversight with the 120 day extension re: relation back? My notes are shit for this. Can someone please explain this to me?

FlanSolo
Posts: 439
Joined: Mon Oct 11, 2010 11:34 am

Re: Rule 15 & 4(m) . . . what's the issue?

Postby FlanSolo » Fri Dec 09, 2011 11:59 am

I don't think it's much of a real issue. The ambiguity, such as it is, is that the original D could have been served much sooner than the expiration of the 4(m) window, so you could argue that if the party being added received notice after service of the original D, it would be outside the original 4(m) window. I think Wright & Miller say though that this is bogus, as long as the added party has notice within the theoretical 120 day window which starts from original filing, it should be fine.

portaprokoss
Posts: 218
Joined: Wed Nov 23, 2011 2:40 pm

Re: Rule 15 & 4(m) . . . what's the issue?

Postby portaprokoss » Fri Dec 09, 2011 12:22 pm

I figured it out.

Say statute of limitations is 500 days. You file a claim on day 100. That means that you have 120 days to serve D. But say you served the wrong guy. The right guy can only relate back to that 120 day window. This makes no sense because you are prohibited from suing the guy, even though you have 280 days left before the statute of limitations runs.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: orchidbloom, shineoncrazydiamond and 2 guests