Ada M. Freese v. United States District Court for the Northern Continental Airlines, Inc., District…

FILED
FEB 3, 2011
LEONARD GREEN, Clerk
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0070n.06
No. 09-4249
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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

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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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