3. Before Rule 15

(c) was amended the circuit courts disagreed whether to characterize relation back as “substantive” or “procedural.” In SCHIAVONE v. FORTUNE, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), a diversity case, plaintiffs mistakenly failed to name the correct defendant in the original complaint. Plaintiffs meant to sue the owners of Fortune magazine; however, instead of naming “Time, Incorporated,” they named “Fortune,” which is not a legal entity. Plaintiffs were unable to serve “Fortune,” so they amended their complaint to name “Time, Incorporated.” Both the amendment and service of process on “Time, Incorporated” took place after the statute of limitations had run. The Supreme Court applied Rule 15

(c) instead of New Jersey’s more liberal relation-back rule because the plaintiffs had conceded in the District Court that the New Jersey rule governing relation back was procedural only, and held that the claims were time barred. The Advisory Committee Notes to amended Rule 15(c)indicate that the amendment repudiates the holding in Schiavone that notice of a lawsuit’s pendency must be given within the applicable statute of limitations period. The Advisory Committee stated:

An intended defendant who is notified of an action within the period allowed by [Rule 4(m)] for service of a summons and complaint may not under the revised rule defeat the action on account of a defect in the pleading with respect to the defendant’s name, provided that the requirements of clauses (A) and (B) have been met. If the notice requirement is met within the [Rule 4(m)] period, a complaint may be amended at any time to correct a formal defect such as a misnomer or misidentification.