Adding a New Defendant to a Lawsuit after the Lawsuit Has Been Initiated
Once a lawsuit has been initiated in Denver or Colorado courts, the plaintiff may discover additional information and realize she needs to add a new defendant to the action. The plaintiff has several options for doing so.
One potential way to add a new defendant is to amend the Complaint to include a new defendant and then serve the new defendant with a summons and the amended Complaint. Colorado Rule of Civil Procedure (“C.R.C.P.”) 15 governs when a Complaint may be amended. In particular, under C.R.C.P. 15, a plaintiff may amend his or her complaint once as a matter of right before a responsive pleading is filed, or, if a responsive pleading has been filed, the plaintiff may amend the complaint only with approval of the court or of the adverse parties. Accordingly, if a responsive pleading has been filed, the plaintiff must seek approval from the court or the parties in order to amend his or her complaint to include another defendant. See Moore v. Grossman, 824 P.2d 7 (Colo.App. 1991) (plaintiff was required to seek leave to amend her complaint under C.R.C.P. 15(a) to include a new defendant after a responsive pleading had been filed). However, even if a responsive pleading has not been filed, Colorado case law indicates that it is good practice to seek leave from the court to add a party.
In particular, under C.R.C.P. 21, “[m]isjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.” “The language of the rule emphasizes that misjoinder is not fatal and that a range of alternative remedies should be employed to preserve those issues and parties properly included in an action.” King v. W. R. Hall Transp. and Storage Co., 641 P.2d 916, 919 (Colo. 1982). However, this rule conflicts with C.R.C.P. 15 which allows amendment of the Complain as of right before a responsive pleading has been filed which, in theory, means that the Complaint could be amended to include an additional party without leave of court. In contrast, C.R.C.P. 21 indicates an order is required to drop or add a party. In King v. W. R. Hall Transp. and Storage Co., the Colorado Supreme Court found that a party proceeds at its own peril in amending a Complaint as of right to add a defendant without seeking leave of court to do so. Accordingly, if the plaintiff wishes to add a defendant by amending the Complaint, the safest procedure for doing so is to file a motion to do so as opposed to just amending the complaint without permission from the court.
Once a party has been added to the case, the new party has to be served with a Summons and the amended Complaint as required by C.R.C.P. 4(m) which generally governs service of process in lawsuits. Additionally, whether or not the amended Complaint relates back to the date of the original Complaint is governed by C.R.C.P. 15(c) and, in order to relate back, requires that the party to be brought in by amendment: (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. Generally speaking, relation back of the amended Complaint to the date the original Complaint was filed is important for statute of limitations purposes since if the amended Complaint doesn’t relate back, the claims could potentially fall outside of the statute of limitations period since the amended Complaint, by definition, has to be filed after the original Complaint.