Marc B. Goodman v.  Praxair, Inc.; Praxair Services, Inc.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MARC B. GOODMAN,
Plaintiff-Appellant,
v. No. 06-1009 
PRAXAIR, INC.; PRAXAIR SERVICES,
INC.,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(CA-04-391-MJG)
Argued: May 23, 2007
Decided: July 25, 2007
Before WILLIAMS, Chief Judge, WILKINSON, NIEMEYER,
MICHAEL, TRAXLER, KING, GREGORY, SHEDD, and
DUNCAN, Circuit Judges, and WIDENER and WILKINS,
Senior Circuit Judges.
Reversed and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judges Wilkinson, Michael, Traxler, King, Dun-
can, and Senior Judges Widener and Wilkins joined. Chief Judge Wil-
liams wrote a separate opinion concurring in part, in which Judge
Shedd joined. Judge Gregory wrote a separate opinion concurring in
part.
Judge Motz, being disqualified, did not participate in this case.

-- 1 of 29 --

COUNSEL
ARGUED: Thomas McCarthy, Jr., THOMAS MCCARTHY, SR. &
ASSOCIATES, P.C., Annapolis, Maryland, for Appellant. Howard
Robert Rubin, SONNENSCHEIN, NATH & ROSENTHAL, L.L.P.,
Washington, D.C., for Appellees. ON BRIEF: Amy L. Bess, William
E. Copley, SONNENSCHEIN, NATH & ROSENTHAL, L.L.P.,
Washington, D.C., for Appellees.
OPINION
NIEMEYER, Circuit Judge:
The district court dismissed plaintiff Marc Goodman’s amended
complaint for breach of contract against Praxair, Inc., and its wholly-
owned subsidiary, Praxair Services, Inc., under Federal Rule of Civil
Procedure 12(b)(6) because (1) the face of the amended complaint,
which added Praxair Services, Inc., as a defendant, showed that the
claim was barred by Maryland’s three-year statute of limitations, and
(2) Federal Rule of Civil Procedure 15(c) (providing when an
amended pleading relates back to the date of the original pleading)
did not save the complaint. In concluding that Rule 15(c) did not
apply, the district court held (1) that the amended complaint added
Praxair Services, Inc., as a party, rather than "changing the party," as
required by Rule 15(c); (2) that Goodman’s mistake in suing the par-
ent, rather than its subsidiary, was not the type of mistake that justi-
fied the relation back of an amendment under Rule 15(c); and (3) that
Praxair Services, Inc., might not have had notice that it would have
been sued but for Goodman’s mistake, as required by Rule
15(c)(3)(B).
Because we conclude that the district court erred both in applying
the statute of limitations and in refusing to apply the relation back
afforded by Rule 15(c), we reverse the judgment of dismissal and
remand for further proceedings.
I
On December 18, 2003, Goodman commenced an action in Mary-
land state court, naming Praxair, Inc., as defendant and alleging, in
2 GOODMAN v. PRAXAIR, INC.

-- 2 of 29 --

two counts, that Praxair, Inc., breached a contract with Goodman and
in doing so also violated the Maryland Wage Payment and Collection
Act.
Goodman alleged in his complaint that he entered into a written
contract, dated April 16, 1998, with Tracer Research Corporation, a
manufacturer of tracing chemicals ("tracers") that detect fuel leaks in
fuel tanks. Goodman alleged that the contract was for him to lobby
on Tracer Research’s behalf for exemptions of its tracers from regula-
tion by the Clean Air Act and the EPA regulatory scheme under it.
The hoped-for exemptions would be based on the conclusion that
tracers were not fuel additives, which were subject to expensive test-
ing regulations. The contract provided for payments to Goodman
based on the number of tracers that he was able to exempt from the
EPA regulations. On December 19, 2000, allegedly as a result of
Goodman’s efforts, the EPA sent a letter to Tracer Research notifying
it that 20 of its tracers "[were] not fuel additives" and therefore were
exempt from environmental testing requirements. Goodman alleges
that under the contract, Tracer Research then became obligated to pay
him $650,000 in fees. Because Tracer Research paid Goodman
$30,000 during the course of his efforts, Goodman alleged that Tracer
Research still owed him $620,000.
Count I of the complaint for breach of contract demanded
"[j]udgment as against Praxair, Inc. as successor in interest of Tracer
Research Corp." in the amount of $620,000 in damages plus pre-
judgment interest. Count II alleged that the fees payable under the
contract were also properly characterized as wages and therefore pay-
able by reason of the Maryland Wage Payment and Collection Act.
As Goodman alleged, "The Defendant has owed the claimed wages
in an amount equal to $620,000.00, since December 19, 2000, the
date the EPA excluded the Defendant’s tracers from the two-step EPA
registration process."
Subsequent to the formation of the contract and its alleged breach,
Tracer Research was acquired by UCISCO, Inc., a wholly-owned sub-
sidiary of Praxair, Inc., and UCISCO thereafter changed its name to
Praxair Services, Inc.
3 GOODMAN v. PRAXAIR, INC.

-- 3 of 29 --

Counsel for Goodman stated by affidavit that after hearing that
"Tracer Research Corp. had been sold to Praxair, Inc.," he visited the
website of Praxair, Inc., during the course of preparing the complaint
that he filed in state court. At the website, he found a press release
dated November 11, 2002, in which Praxair, Inc., announced that
"Praxair Acquires Tracer Research" and which provided the details
that "UCISCO, Inc., a wholly-owned subsidiary of Praxair, Inc., has
acquired Tracer Research corporation" and that "UCISCO had
changed its name to Praxair Services, Inc." Counsel also determined
that Praxair Services, Inc., was not registered to do business in Mary-
land but that Praxair, Inc., had been so registered.1
Purportedly based on the information learned, Goodman named
Praxair, Inc., as the defendant and included the following allegations
in the complaint:
Defendant Praxair, Inc. is a corporation, and successor in
interest to Tracer Research Corp., which was acquired in
November, 2002 by Praxair Service, Inc. a wholly-owned
subsidiary of Praxair, Inc.
* * *
To date, Defendant Tracer Research Corp., and its successor
in interest, Praxair Services, a wholly-owned subsidiary of
Praxair, Inc., . . . have failed and refused to pay the Plaintiff
as agreed.
* * *
1In view of the representations by Praxair, Inc.’s counsel that UCISCO
acquired the stock of Tracer Research pursuant to a "stock purchase
agreement entered into in October 2002," the court questioned counsel
for Praxair, Inc., during oral argument about whether Tracer Research
Corporation remained a subsidiary of UCISCO (Praxair Services, Inc.)
or whether it was dissolved as a corporation. Counsel represented that
after the acquisition, Tracer Research Corporation merged into UCISCO
(Praxair Services, Inc.). We proceed on the agreement of the parties that
Praxair Services, Inc., was thus the proper defendant.
4 GOODMAN v. PRAXAIR, INC.

-- 4 of 29 --

Wherefore, Plaintiff Marc B. Goodman demands the follow-
ing relief:
a. Judgment as against Praxair, Inc. as successor in interest
of Tracer Research Corp. in the amount of $620,000
plus pre-judgment interest at the legal rate.
Praxair removed the action to federal court based on diversity juris-
diction and then filed a motion to dismiss the complaint on the ground
that Praxair Services, Inc., not Praxair, Inc., was the successor to
Tracer Research’s obligations under the contract with Goodman. In
response, Goodman filed an amended complaint on April 5, 2004, in
which he repeated the allegations contained in the original complaint
but stated that Praxair Services, Inc., rather than Praxair, Inc., was lia-
ble under the contract. He also alleged that Praxair, Inc., should be
liable on an alter ego theory, and amended the caption of the case to
indicate that both Praxair, Inc., and Praxair Services, Inc., were defen-
dants.
The defendants filed a motion to dismiss the amended complaint
on various grounds, including the ground that the complaint on its
face was time-barred and that Federal Rule of Civil Procedure 15(c)
did not provide relation back of the amended complaint. The district
court granted the motion to dismiss, finding that Goodman’s claims
"accrued" on December 19, 2000, the date of the EPA’s letter to
Tracer Research, and that therefore the amended complaint, which
was filed on April 5, 2004, was outside of Maryland’s three-year limi-
tations period. The court also concluded that the relation-back provi-
sion of Rule 15(c) did not apply because the amended complaint did
not "change" a party, as required by the Rule, but rather added a new
party, and that adding a party when the plaintiff was fully aware of
that party when he filed his original complaint was not the type of
mistake envisioned by Rule 15(c) as suitable for relation back. The
court gave as an additional reason that Goodman had not demon-
strated that Praxair Services, Inc., "knew or should have known that,
but for a mistake concerning the identity of the proper party, the
action would have been brought against it."
Goodman filed this appeal, arguing (1) that the running of Mary-
land’s statute of limitations does not appear on the face of the com-
5 GOODMAN v. PRAXAIR, INC.

-- 5 of 29 --

plaint, and (2) that, in any case, Rule 15(c) causes the amended
complaint to relate back to the date of the original complaint filed in
state court, which concededly was filed within the limitations period.
II
In concluding that the amended complaint itself alleged facts show-
ing that its claims were barred by Maryland’s three-year statute of
limitations, the district court said:
Plaintiff expressly stated in the First Amended Complaint
that "the Defendant has owed the claimed wages in an
amount equal to $620,000 since December 19, 2000." Thus,
Plaintiff has unambiguously set forth the date of accrual of
the claim(s) that he was asserting. There is no doubt that
there is a three-year period of limitations. Accordingly, limi-
tations expired December 19, 2003 on the claim(s) that
Plaintiff presented in the instant case.
(Emphasis added).
Goodman argues that "the date that $620,000 became owing is not
the same as an allegation of the date a contract cause of action
accrues." He adds that in Maryland a cause of action accrues when
a contract is breached and also when the plaintiff discovered or
should have discovered the breach, if that date is later. He contends
that neither the date of breach nor the day he discovered the breach
is specified in the amended complaint and that therefore the amended
complaint cannot be dismissed under Federal Rule of Civil Procedure
12(b)(6) on limitations grounds.
The parties agree that Maryland’s statute of limitations applies,
providing, "A civil action at law shall be filed within three years from
the date it accrues." Md. Code Ann., Cts. & Jud. Proc. § 5-101
(emphasis added). Ordinarily, a defense based on the statute of limita-
tions must be raised by the defendant through an affirmative defense,
see Fed. R. Civ. P. 8(c), and the burden of establishing the affirmative
defense rests on the defendant. See Newell v. Richards, 594 A.2d
1152, 1156 (Md. 1991); accord Phoenix Sav. & Loan, Inc. v. Aetna
6 GOODMAN v. PRAXAIR, INC.

-- 6 of 29 --

Cas. & Sur. Co., 427 F.2d 862, 870 (4th Cir. 1970). It follows, there-
fore, that a motion to dismiss filed under Federal Rule of Procedure
12(b)(6), which tests the sufficiency of the complaint, generally can-
not reach the merits of an affirmative defense, such as the defense that
the plaintiff’s claim is time-barred. But in the relatively rare circum-
stances where facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a motion to
dismiss filed under Rule 12(b)(6). This principle only applies, how-
ever, if all facts necessary to the affirmative defense "clearly appear[ ]
on the face of the complaint." Richmond, Fredericksburg & Potomac
R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993) (emphasis added);
accord Desser v. Woods, 296 A.2d 586, 591 (Md. 1972).
Since the district court dismissed Goodman’s amended complaint
based on the affirmative defense that the complaint was barred by a
statute of limitations, the question presented in this case is whether
the amended complaint sets forth on its face the facts necessary to
conclude that plaintiff’s claims are barred by the statute of limitations.
The amended complaint alleges with respect to the timing of
claims:
(1) that on December 19, 2000, the EPA "forwarded corre-
spondence to" Tracer Research, stating that the EPA
had concluded that Tracer Research’s tracer chemicals
were not fuel additives subject to regulation and there-
fore were exempt from the testing requirements;
(2) that as of December 19, 2000, $620,000 became due
to the plaintiff under the contract; and
(3) that "to date, Defendant Tracer Research Corp., and its
successor in interest, Praxair Services, Inc., a wholly-
owned subsidiary of Praxair, Inc., have failed and
refused to pay the Plaintiff as agreed."
The complaint also included a copy of the EPA letter dated December
19, 2000, addressed to the CEO of Tracer Research Corporation.
That letter does not show that a copy was sent to Goodman.
7 GOODMAN v. PRAXAIR, INC.

-- 7 of 29 --

The complaint alleges neither a date when the contract was
breached nor a date when Goodman may have discovered the breach.
Its allegation that money was owed does not mean that the contract
on which it was owed had been breached. Indeed, the complaint does
not even allege when Tracer Research received the letter or when it
provided a copy to Goodman. Moreover, the complaint contains no
allegations of when any demand for payment was made by Goodman
nor of when Tracer Research refused to pay, if it did so explicitly.
The complaint simply alleges that Tracer Research — at some
unspecified point in time — "failed and refused to pay" Goodman.
In Maryland, a cause of action for breach of contract generally
accrues when the contract is breached. Mayor & Council of Federals-
burg v. Allied Contractors, Inc., 338 A.2d 275, 280 (Md. 1975) ("In
contract cases, the general rule is that the period of limitations begins
to run from the date of the breach, for it is then that the cause of
action accrues"). In this case, the breach consisted of Tracer
Research’s failure to pay the amounts agreed to. While Goodman did
allege that the conditions precedent to Tracer Research’s obligation
to pay were fulfilled on December 19, 2000, when the EPA purport-
edly sent a letter to Tracer Research, Goodman did not allege that the
breach occurred on that date. Furthermore, it is impossible to infer
from the complaint the date when the breach occurred, since no date
for payment was specified in the contract itself. In the absence of such
a term, payment on a contract must be made within a commercially
reasonable time. See Kasten Constr. Co. v. Maple Ridge Constr. Co.,
226 A.2d 341, 345 (Md. 1967); Ewell v. Landing, 85 A.2d 475, 477
(Md. 1952). Yet Goodman’s complaint also does not allege when the
commercially reasonable time expired in the circumstances of this
case.
Although the statute of limitations for breach of contract generally
commences on the date of breach, for that is when the cause of action
"accrues," that date may be extended in Maryland by the "discovery
rule," which provides that the limitations period does not begin until
the plaintiff learned or should have learned of the breach. As the
Maryland Court of Appeals has explained:
The statute of limitations on [the plaintiffs’] contract claim
began to run when the cause of action for breach of con-
8 GOODMAN v. PRAXAIR, INC.

-- 8 of 29 --

tract accrued. Under the principles set forth in our cases, the
cause of action accrued when [the defendant] breached its
contract . . . and when the breach was or should have been
discovered. . . . Since the discovery rule is now generally
applicable in civil actions, accrual of the cause of action was
postponed until [the plaintiffs] knew or should have known
of the breach.
Jones v. Hyatt Ins. Agency, Inc., 741 A.2d 1099, 1103-04 (Md. 1999);
see also Bragunier Masonry Contractors, Inc. v. The Catholic Univ.
of America, 796 A.2d 744, 755-56 (Md. 2002) (same).
Goodman’s complaint also does not provide facts sufficient to
apply the discovery rule. This is particularly important in this case in
view of the fact that the district court concluded that the breach of
contract claim accrued when the EPA sent its letter to Tracer
Research, not to Goodman. The district court did not address either
when Tracer Research received the letter or when Goodman received
it or when a commercially reasonable time for payment had elapsed.
The Praxair defendants argue that because the discovery rule is an
extension of the limitations period that Goodman must allege and
prove in response to a statute of limitations defense, the risk of failing
to make the showing must fall on Goodman, not on the Praxair defen-
dants. See Shah v. HealthPlus, Inc., 696 A.2d 473, 478 (Md. Ct. Spec.
App. 1997). The problem with this argument, however, is that the dis-
covery rule itself is dependent upon the existence of a date of breach.
While Goodman might ultimately have to prove when he discovered
a breach, he was not obligated to plead discovery of the breach in his
complaint when the affirmative defense had yet to be demonstrated
in the complaint or asserted by the defendants. If the defendants
wished to dispose of the complaint on its face before asserting their
affirmative defense, on the ground that their affirmative defense was
evident in the complaint, they had to show also that the plaintiff’s
potential rejoinder to the affirmative defense was foreclosed by the
allegations in the complaint. "[O]nce a claim has been stated ade-
quately, it may be supported by showing any set of facts consistent
with the allegations in the complaint." Bell Atlantic Corp. v. Twom-
bly, 127 S. Ct. 1955, 1969 (2007) (emphasis added). To require other-
wise would require a plaintiff to plead affirmatively in his complaint
9 GOODMAN v. PRAXAIR, INC.

-- 9 of 29 --

matters that might be responsive to affirmative defenses even before
the affirmative defenses are raised. Of course, no such pleading is
required except, perhaps, in the unusual case where a claim is filed
clearly beyond the applicable limitations period and the plaintiff
seeks to forestall its dismissal by alleging the facts of discovery.
In sum, the most that can be derived from Goodman’s complaint
is that the conditions precedent to Tracer Research’s obligations to
pay Goodman were satisfied as of December 19, 2000. But there are
no allegations sufficient to determine when the obligation to pay arose
or when Tracer Research could be deemed to have refused to make
payment. The most the complaint says is that at some unspecified
time after December 19, 2000, Tracer Research "failed and refused"
to pay, breaching the contract. Accordingly, we conclude that the face
of the complaint does not allege facts sufficiently clear to conclude
that the statute of limitations had run, and the district court therefore
erred in dismissing the complaint on that basis under Rule 12(b)(6).
III
Because the district court ruled that Goodman’s amended com-
plaint, filed on April 5, 2004, was barred by Maryland’s three-year
statute of limitations, it also decided whether the amended complaint
was saved by the relation-back facility of Rule 15(c). Even though we
have reversed the district court’s ruling that the Praxair defendants’
limitations defense may be decided from the face of the complaint,
our ruling nonetheless does not foreclose a later finding by the district
court that Goodman’s claim accrued more than three years before he
filed his amended complaint. Accordingly, we also address whether
the amended complaint is saved by the relation-back authorized by
Rule 15(c). Relation back would give the amended complaint the fil-
ing date of the original complaint, which the parties agree was timely
filed.2
2In her concurring opinion, Judge Williams has stated that she would
not reach the relation-back issue because it is unnecessary to the resolu-
tion of the appeal and is issued solely to provide guidance.
First, our court regularly issues opinions to provide guidance on
remand in the interest of judicial efficiency. See United States v. Barile,
10 GOODMAN v. PRAXAIR, INC.

-- 10 of 29 --

The applicable portions of Rule 15(c) provide:
286 F.3d 749, 759 (4th Cir. 2002) (Williams, J.) ("Whether the excluded
portion of Sheridan’s testimony is admissible absent the district court’s
Rule 16 sanction is an issue that may arise again should a new trial be
required on remand, and we therefore address it here"); Resolution Trust
Corp. v. Allen, 16 F.3d 568, 573-74 (4th Cir. 1994) (Williams, J.)
("Although remand for the district court to address these arguments
would be the normal course, we believe it would be a fruitless exercise
here. The parties have thoroughly briefed the [ ] issue before us . . . .
Therefore, in the interest of judicial economy . . . we will proceed to
address the merits"). Accord Willingham v. Crooke, 412 F.3d 553, 561
(4th Cir. 2005); United States v. Ebersole, 411 F.3d 517, 535 (4th Cir.
2005); United States v. Ruhbayan, 460 F.3d 292, 302 (4th Cir. 2005);
Studio Frames, Ltd. v. Standard Fire Ins. Co., 369 F.3d 376, 383 (4th
Cir. 2004); Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 194 (4th Cir.
2003); Knussman v. Maryland, 272 F.3d 625, 642 n.13 (4th Cir. 2001);
United States v. Dickerson, 114 F.3d 464, 468 (4th Cir. 1997); Am.
Trucking Ass’ns, Inc. v. Fed. Highway Admin., 51 F.3d 405, 409 (4th Cir.
1995); Klugh v. United States, 818 F.2d 294, 299 (4th Cir. 1987).
But in this case the relation-back issue is a viable dispute that has been
presented to us and is much more than something to be decided as a mat-
ter of guidance. We resolve the limitations issue only as a pleading mat-
ter, holding that a Rule 12(b)(6) motion to dismiss cannot in this case
dispose of the limitations issue. We do not dispose of the limitations
question on the merits, as that requires further proceedings. We decide
the relation-back issue because the district court’s holding on that issue
is broader than the limitations issue and would, if left intact, result in an
erroneous judgment if the further proceedings revealed that the amended
complaint was filed outside of the limitations period. Moreover, the dis-
trict court decided both issues, and both issues were appealed to us. Not
deciding the relation-back issue now would leave in place an erroneous
decision regardless of how the limitations issue turned out.
In addition, counsel for the parties assured the court of the viability of
both issues, representing to the court at oral argument that counsel for the
Praxair defendants in fact had transmitted a letter to Goodman, refusing
his demand more than three years before the amended complaint was
filed. Once that letter is filed with the district court, we would have to
address the relation-back issue in a second appeal back-to-back with this
appeal.
11 GOODMAN v. PRAXAIR, INC.

-- 11 of 29 --

An amendment of a pleading relates back to the date of the
original pleading when
* * *
(2) the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set forth
or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the
party against whom a claim is asserted if the foregoing pro-
vision (2) is satisfied and . . . the party to be brought in by
amendment (A) has received such notice of the institution
of the action that the party will not be prejudiced in main-
taining a defense on the merits, and (B) knew or should have
known that, but for a mistake concerning the identity of the
proper party, the action would have been brought against the
party.
Fed. R. Civ. P. 15(c)(2), (3). Thus, in the circumstances presented
here, an amendment that changes the party against whom a claim is
asserted relates back to the date of the original pleading if (1) the
claim in the amended complaint arose out of the same transaction that
formed the basis of the claim in the original complaint; (2) the party
to be brought in by the amendment received notice of the action such
that it will not be prejudiced in maintaining a defense to the claim;
and (3) it should have known that it would have originally been
named a defendant "but for a mistake concerning the identity of the
proper party."
These requirements of Rule 15(c) reflect a subtle and complex
compromise of two competing policies: On the one hand, the Federal
Rules favor simplicity in pleadings, see Fed. R. Civ. P. 8(a), and their
liberal amendment, see Fed. R. Civ. P. 15(a); Foman v. Davis, 371
U.S. 178, 181 (1962), as well as the administration of cases to secure
their just determination, see Fed. R. Civ. P. 1. On the other hand, stat-
utes of limitations are legislative determinations that give defendants
predictable repose from claims after the passage of a specified time,
and courts must, in recognition of the separation of powers, hesitate
to extend or ignore them for judicially created reasons. See Lyons
12 GOODMAN v. PRAXAIR, INC.

-- 12 of 29 --

P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 797 (4th Cir.
2001). In light of these policies, Rule 15(c) must be understood to
freely permit amendment of pleadings and their relation-back so long
as the policies of statutes of limitations have been effectively served.
See 3 James Wm. Moore, et al., Moore’s Federal Practice
§ 15.19[3][a] (3d ed. 1997) ("The purpose of Rule 15(c) is to provide
the opportunity for a claim to be tried on its merits, rather than being
dismissed on procedural technicalities, when the policy behind the
statute of limitations has been addressed"). And that is accomplished
in Rule 15(c) by requiring that a new party have had adequate notice
within the limitations period and by assuring that the new party not
be prejudiced by the passage of time between the original pleading
and the amended pleading.
In denying relation-back under Rule 15(c) in this case, the district
court ruled (1) that the amended complaint did not "change the party
or the naming of the party against whom the claim [was] asserted,"
but rather added Praxair Services, Inc.; (2) that Goodman "was fully
aware of the existence of [Praxair Services, Inc.] and its correct
name," and therefore his mistake in naming only Praxair, Inc., in the
original complaint was not the type of mistake on which Rule
15(c)(3) acts; and (3) that it was doubtful that Praxair Services, Inc.,
"knew or should have known that, but for a mistake concerning the
identity of the proper party, the action would have been properly
brought against it," as required by Rule 15(c)(3)(B), because there
was "no mistake to the existence, name and relevant action taken by
[Praxair Services, Inc.]." Goodman contends that the district court
erred in all three of its rulings — contentions that we now address.
A
Goodman argues that by adding Praxair Services, Inc., as a defen-
dant to the amended complaint, he "changed" the party he was suing,
as required by Rule 15(c)(3), because "an addition to something is
generally regarded as a change to that thing." See Lundy v. Adamar
of N.J., Inc., 34 F.3d 1173, 1192-93 & n.13 (3d Cir. 1993) (citing
cases); 6A Charles Alan Wright, et al., Federal Practice and Proce-
dure § 1498 (2d ed. 1990) ("The word ‘changing’ has been liberally
construed by the courts, so that amendments simply adding or drop-
13 GOODMAN v. PRAXAIR, INC.

-- 13 of 29 --

ping parties, as well as amendments that actually substitute defen-
dants, fall within the ambit of the rule").
The Praxair defendants argue that "the language of Rule 15(c)(3)
makes clear that it requires change of an existing party — not merely
a change in the overall composition of the parties collectively." Thus,
as they reason, the Rule applies only to an amendment where a party
is substituted for another, not added to the complaint. See Wilson v.
United States, 23 F.3d 559, 563 (1st Cir. 1994); Worthington v. Wil-
son, 8 F.3d 1253, 1256 (7th Cir. 1993); In re Kent Holland Die Cast-
ing & Plating, Inc., 928 F.2d 1448, 1450 (6th Cir. 1991).
Although we adopt Goodman’s position as the better interpretation
of Rule 15(c), even if we were to accept the Praxair defendants’ inter-
pretation, it still appears that the amended complaint substituted the
party against whom the breach of contract claim was asserted. The
contract claim was originally asserted against Praxair, Inc., but in the
amended complaint it is asserted against Praxair Services, Inc. While
Praxair, Inc., did remain a defendant in the amended complaint, it was
named a defendant under a new theory of liability. This fact, however,
is irrelevant to the relation-back inquiry as to the amended breach of
contract claim now asserted against Praxair Services, Inc.
Moreover, we can discern no policy that would be served by the
Praxair defendants’ restrictive reading of "changes," which would
force the amending party to drop a defendant for each defendant he
adds. Praxair, Inc., was placed on notice within the limitations period
of the claims relating to the transactions alleged in the original com-
plaint, and no unfairness to it resulted from leaving it in as a defen-
dant in the amended complaint. Any unfairness caused by the
amendment could only be claimed by Praxair Services, Inc., the new
party. But the protections for Praxair Services are addressed by con-
sidering the requirements of Rule 15(c)(3)(A) and (B), not from read-
ing the term "changes" narrowly. Because no limitations policy is at
stake in the interpretation of "changes," the liberal amendment policy
of the federal rules becomes paramount. See 6A Charles Alan Wright,
et al. § 1498 ("If both the basic transaction test and the notice require-
ment of Rule 15(c) are satisfied, there is no justification for a restric-
tive interpretation of the word ‘changing’ that would require a
plaintiff to choose among defendants"). In the present circumstances,
14 GOODMAN v. PRAXAIR, INC.

-- 14 of 29 --

we conclude that the amended complaint "change[d] the party or the
naming of the party against whom a claim is asserted," as required by
Rule 15(c)(3).
B
The district court also concluded that Goodman’s naming of Prax-
air Services, Inc., in the amended complaint when Goodman had
named only Praxair, Inc., in the original complaint, corrected a mis-
take that was not covered by Rule 15(c) because Goodman was
always aware of the existence of Praxair Services, Inc., and its correct
name. As the court observed, Goodman "mistakenly thought that
[Praxair, Inc.] became the (or perhaps a) successor in interest to
[Tracer Research Corporation]. Rule 15(c) does not allow relation
back to correct this type of mistake."
The Praxair defendants have developed this position further, argu-
ing that when a plaintiff fully intends to name the original defendant
and it turns out that the plaintiff named the wrong party, no "mistake"
as anticipated by Rule 15(c)(3) has been made. To allow the correc-
tion of a mistake to relate back, the mistake, they argue, must be a
mistake of corporate identity or a misnomer, not one based on a lack
of knowledge or poor strategy. In making this argument, the Praxair
defendants rely on our decisions in Western Contracting Corp. v.
Bechtel Corp., 885 F.2d 1196 (4th Cir. 1989), and Locklear v. Berg-
man & Beving AB, 457 F.3d 363 (4th Cir. 2006).
The interpretation of Rule 15(c) made by the district court and now
urged by the Praxair defendants focuses unnecessarily on the type of
mistake without addressing the notice and prejudice to the new party.
Rule 15 implements the notions that a plaintiff may amend a plead-
ing for whatever reason and that his amendment should be freely
allowed. Consistent with this policy, Rule 15(c)(3) articulates an
instance when an amendment relates back, referring simply to when
an amendment "changes the party or the naming of the party" for
whatever reason. The Rule does not concern itself with the amending
party’s particular state of mind except insofar as he made a mistake;
it presumes that the amending party can make the amendment,
although it does constrain substantially the type of amendment that
15 GOODMAN v. PRAXAIR, INC.

-- 15 of 29 --

may relate back — one that changes a party or the naming of a party
with respect to a claim already asserted. The Rule’s description of
when such an amendment relates back to the original pleading focuses
on the notice to the new party and the effect on the new party that the
amendment will have. See Fed. R. Civ. P. 15(c)(3)(A)-(B). These core
requirements preserve for the new party the protections of a statute of
limitations. They assure that the new party had adequate notice within
the limitations period and was not prejudiced by being added to the
litigation. Stated in the specifics of the Rule, an amendment relates
back only when it changes a party or the naming of a party, see Fed.
R. Civ. P. 15(c)(3); when it arises out of the same transaction as that
referred to in the original complaint, see Fed. R. Civ. P. 15(c)(2), (3);
when it causes no prejudice to the new defendant in maintaining his
defense, see Fed. R. Civ. P. 15(c)(3)(A); and when the new defendant
should have known that it was the party that would have been sued
but for a "mistake," Fed. R. Civ. P. 15(c)(3)(B). Thus, reference to
"mistake" in Rule 15(c)(3)(B), while alluding by implication to a cir-
cumstance where the plaintiff makes a mistake in failing to name a
party, in naming the wrong party, or in misnaming the party in order
to prosecute his claim as originally alleged, explicitly describes the
type of notice or understanding that the new party had. This construc-
tion serves the policies of freely allowing amendment and at the same
time preserving to new parties the protections afforded by statutes of
limitations.
Unfortunately, the "but for a mistake" language in Rule 15(c)(3)(B)
has led to differing interpretations by the courts. Some have divided
cases involving amendments to correct typographical errors from
cases involving amendments to correct a lack of knowledge of the
proper party, and have created another category of amendments
resulting from strategic error. See, e.g., Wilson, 23 F.3d at 563 (deny-
ing relation-back when injured seaman sued employer, rather than
owner of vessel, because seaman lacked knowledge of proper party);
Rendall-Speranza v. Nassim, 107 F.3d 913, 919 (D.C. Cir. 1997)
(denying relation-back when employee elected to sue supervisor for
sexual harassment, then tried to add employer). Moreover, the major-
ity of courts agree that Rule 15(c)(3) does not permit substitution for
"Doe" defendants after the limitations period has run. See, e.g., Wayne
v. Jarvis, 197 F.3d 1098, 1103-04 (11th Cir. 1999); Jacobsen v.
Osborne, 133 F.3d 315, 321 (5th Cir. 1998); Baskin v. City of Des
16 GOODMAN v. PRAXAIR, INC.

-- 16 of 29 --

Plaines, 138 F.3d 701, 704 (7th Cir. 1998); see also Locklear, 457
F.3d at 367. In denying substitutions of new defendants for "Doe"
defendants, some courts base their analysis on the Rule’s "mistake"
language. See Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cir.
1980) ("Rule 15(c)(2) permits an amendment to relate back only
where there has been an error made concerning the identity of the
proper party and where that party is chargeable with knowledge of the
mistake, but it does not permit relation back where, as here, there is
a lack of knowledge of the proper party").
Despite the good-sense results effected by some of these holdings,
the text of Rule 15(c)(3) does not support their parsing of the "mis-
take" language. See Arthur v. Maersk, Inc., 434 F.3d 196, 208 (3d Cir.
2006) ("Although a majority of courts have held that only a ‘misno-
mer or misidentification’ of an existing party can constitute a ‘mistake
concerning the identity of the proper party’ under Rule 15(c) . . . there
is no linguistic basis for this distinction"); accord Leonard v. Parry,
219 F.3d 25, 29 (1st Cir. 2000) ("the language of Rule 15(c)(3) does
not distinguish among types of mistakes concerning identity"). Most
of the cases could have reached the same result simply by addressing
the stated requirements of the Rule.
Thus, for example, substitutions for "Doe" defendants after limita-
tions have run would be barred by the two separately stated require-
ments of Rule 15(c)(3) that focus on the new party. Rule 15(c)(3)(A)
requires that the change not prejudice the party being substituted for
Doe, and Rule 15(c)(3)(B) requires that the new party knew or should
have known within the limitations period that but for a mistake, it
would have been a party. Most parties substituted for "Doe" defen-
dants would be protected against being added either because they
were prejudiced or because they did not have proper notice. More-
over, while parsing among different kinds of mistakes does not typi-
cally aid application of the Rule, naming Doe defendants self-
evidently is no "mistake" such that the Doe substitute has received
proper notice.
The "mistake" language is textually limited to describing the notice
that the new party had, requiring that the new party have expected or
should have expected, within the limitations period, that it was meant
to be named a party in the first place, although it also implies that the
17 GOODMAN v. PRAXAIR, INC.

-- 17 of 29 --

plaintiff in fact made a mistake. No policy supports permitting
relation-back for typographical mistakes, but not for oversights or
mistakes of inclusion or omission. The policy considerations of Rule
15(c) concern whether the repose granted by statutes of limitations is
preserved for parties named in amended pleadings. And that depends
on the notice to and effect on the new party. The limitations of Rule
15(c)(3) thus only apply when the policies underlying limitations
rules may be trampled. As Justice Holmes explained:
Of course an argument can be made on the other side, but
when a defendant has had notice from the beginning that the
plaintiff sets up and is trying to enforce a claim against it
because of specified conduct, the reasons for the statute of
limitations do not exist, and we are of opinion that a liberal
rule should be applied.
New York Cent. & Hudson River R.R. v. Kinney, 260 U.S. 340, 346
(1922) (emphasis added); see also Rebecca S. Engrav, Relation Back
of Amendments Naming Previously Unnamed Defendants Under Fed-
eral Rule of Civil Procedure 15(c), 89 Calif. L. Rev. 1549, 1573-78
(2001) (advocating liberal construction of "mistake" language in Rule
15(c)(3)).
At bottom, the inquiry, when determining whether an amendment
relates back looks at whether the plaintiff made a mistake in failing
to name a party, in naming the wrong party, or in misnaming the party
in order to prosecute his claim as originally alleged, and it looks into
whether the rights of the new party, grounded in the statute of limita-
tions, will be harmed if that party is brought into the litigation. When
that party has been given fair notice of a claim within the limitations
period and will suffer no improper prejudice in defending it, the lib-
eral amendment policies of the Federal Rules favor relation-back.
A few cases tend to suggest that if plaintiff’s own inexcus-
able neglect was responsible for the failure to name the cor-
rect party, an amendment substituting the proper party will
not be allowed, notwithstanding adequate notice to the new
party. Although this factor is germane to the question of per-
mitting an amendment, it is more closely related to the trial
court’s exercise of discretion under Rule 15(a) whether to
18 GOODMAN v. PRAXAIR, INC.

-- 18 of 29 --

allow the change than it is to the satisfaction of the notice
requirements of Rule 15(c).
6A Charles Alan Wright, et al. § 1498.
Some language in our cases is concededly less than clear on this
point of law. See Western Contracting, 885 F.2d at 1201 ("Nothing
in Bechtel’s answers suggested a claim of fraud or that the individual
counter-defendants had been omitted from such a claim by mistake.
Indeed, Bechtel has not alleged such a mistake"); Locklear, 457 F.3d
at 366 ("Locklear’s substitution . . . does not, for several reasons,
qualify as a mistake under Rule 15(c)(3)(B)"). The facts of those
cases, however, demonstrate that we used the "mistake" language as
a shorthand term to hold that the party to be added must have known
of the mistake. Thus, we concluded in both cases that the party seek-
ing amendment outside of the limitations period had originally
pleaded in such a way that the new party to be added could not rea-
sonably have known that it should have been named originally.
In Western Contracting, the plaintiff corporation brought suit for
breach of contract. The defendant counterclaimed on the basis that the
contract had been procured by fraud. Later, the defendant sought to
amend the counterclaim to add new claims against individual employ-
ees of the plaintiff corporation, asserting that they were responsible
for the fraud. We held that the new claims did not relate back under
Rule 15(c)(3) because the new counterclaim defendants were not
chargeable, within the limitations period, with knowledge that they
should have been parties to the original counterclaim but for a mis-
take. 885 F.2d at 1201. Because the counterclaim complaint set out
claims only against the corporation, without mention of the individ-
ual employees responsible, the individual employees had no reason-
able notice that they should also have been parties. Thus, the
amendment in Western Contracting failed the notice requirement of
Rule 15(c)(3)(B).
Similarly, in Locklear, the original complaint in a products liability
action named the town where the offending machine was constructed,
rather than the manufacturer. We held that the manufacturer was not
chargeable within the limitations period with knowledge that it should
have originally been named a defendant. It was readily apparent in
19 GOODMAN v. PRAXAIR, INC.

-- 19 of 29 --

that case that the naming of the town rather than the manufacturer was
a "mistake," but the later-added manufacturer was not put on notice
of the claim within the limitations period in that it should have known
it would have been named but for the mistake. See Locklear, 457 F.3d
at 366. Accordingly, we limited our holding to the conclusion that the
machine manufacturer did not have the knowledge required by Rule
15(c)(3)(B). See id. ("We therefore focus our attention solely on the
application of Rule 15(c)(3)’s remaining requirements to Locklear’s
amended complaint, beginning with the requirement [Rule
15(c)(3)(B)] that [the machine manufacturer] ‘knew or should have
known that, but for a mistake concerning’ their identity, the action
would have been brought against [it]") (emphasis added).
These holdings, as so read, comport well with the policies underly-
ing Rule 15(c)(3), and we reject any reading of them that might be
taken as conflicting with our holding today. To the extent that there
is a conflict in holding, this opinion controls. See United States v.
Lancaster, 96 F.3d 734, 742 (4th Cir. 1996). Thus, when a person
would reasonably believe that the time for filing suit had expired,
without having been given notice that it should have been named in
an existing action, that person is entitled to repose. See Fed. R. Civ.
P. 15(c)(3)(B). On the other hand, when a person is provided notice
within the applicable limitations period that he would have been
named in the timely filed action but for a mistake, the good fortune
of a mistake should not save him. Id. This is not to say that a plaintiff
may name any party within the limitations period with the hope of
amending later, perhaps after discovery. Rather, it is to say that the
"mistake" language is not the vehicle to address those concerns. In the
cases of concern, most notably the cases of "Doe" substitutions, the
notice and prejudice requirements of Rule 15(c)(3)(A) and (B) ade-
quately police this strategic joinder practice. The Rule’s emphasis on
notice, rather than on the type of "mistake" that has occurred, saves
the courts not only from an unguided and therefore undisciplined sift-
ing of reasons for an amendment but also from prejudicing would-be
defendants who rightfully have come to rely on the statute of limita-
tions for repose. The disagreement among courts over which mistakes
are forgiven under Rule 15(c) and which mistakes result in dismissal
illustrates the peril of the approach.
The mandate remains that a plaintiff has the burden of locating and
suing the proper defendant within the applicable limitations period.
20 GOODMAN v. PRAXAIR, INC.

-- 20 of 29 --

The Federal Rules do not demand a perfect effort at the outset, but
they do demand that when an amendment seeks to correct an imper-
fect effort by changing parties, the new party must have received ade-
quate notice within the limitations period and suffer no prejudice in
its defense.
C
Praxair Services, Inc., asserts, as the district court concluded, that
it was not provided fair notice by the original complaint as required
by Rule 15(c)(3)(A) and (B). It argues that "it did not know, nor
should it have known that it was the intended target of Goodman’s
initial claim." It maintains that because the complaint accurately
described the relationships between Tracer Research Corporation,
Praxair Services, Inc., and Praxair, Inc., it could fairly assume that the
caption of Goodman’s original complaint accurately reflected whom
he wanted to sue.
The original complaint described the contract between Goodman
and Tracer Research Corporation and alleged that Tracer Research
breached it. Seeking to redress the breach, the complaint sought to
trace liability from Tracer Research to the appropriate successor. The
complaint stated that "[t]o date, Defendant Tracer Research Corp.,
and its successor in interest, Praxair Services, a wholly owned subsid-
iary of Praxair, Inc., . . . have failed and refused to pay the Plaintiff
as agreed." For relief, the complaint demanded "Judgment as against
Praxair, Inc. as successor in interest of Tracer Research Corp."
Explaining the circumstances of these assertions, the complaint
described the events leading up to the breach of contract, the parties,
the transactions between Praxair, Inc., and Tracer Research Corpora-
tion, and the facts attendant to the litigation. Praxair Services’ current
assertion of ignorance is simply implausible for several reasons. First,
the complaint made conceptually clear that it was suing the corporate
entity that was the successor of Tracer Research Corporation. Praxair,
Inc., and Praxair Services, Inc., knew, better than anyone, which cor-
porate entity that was, having acquired Tracer Research and partici-
pated in the structuring of the transaction in the first place.
Second, the complaint described the nature of the contract and the
original parties to it. Any corporation maintaining reasonable business
21 GOODMAN v. PRAXAIR, INC.

-- 21 of 29 --

records would be able rapidly to route the complaint to the appropri-
ate subsidiary responsible for that contract.
Third, Praxair, Inc., and Praxair Services, Inc., are parent and sub-
sidiary, respectively, and have employed the same attorneys. Their
identity of interest eliminates any worry that Praxair Services was
caught by surprise when the complaint was amended. "Notice may be
presumed when the nature of the claim is apparent in the initial plead-
ing and the added defendant has . . . a sufficient identity of interest
with the original defendant . . . ." Western Contracting, 885 F.2d at
1201; see also 6A Charles Alan Wright, et al. § 1499 ("An identity
of interest has been found between a parent and a wholly owned sub-
sidiary, as well as between related corporations whose officers, direc-
tors, or shareholders are substantially identical and who may have
similar names or conduct their business from the same offices").
Thus, what is clear is (1) that Goodman intended to sue the succes-
sor of Tracer Research for breach of his contract with Tracer
Research; (2) that Praxair Services, Inc., became the successor of
Tracer Research; (3) that Goodman named Praxair, Inc., in its original
complaint for breach of his contract with Tracer Research; and (4)
that Praxair Services, Inc., knew that but for Goodman’s mistake in
pleading, Praxair Services, Inc., would have been sued for breach of
his contract with Tracer Research. Goodman’s mistake therefore rep-
resents the difference between his manifested intent to sue the succes-
sor to Tracer Research and the defendant whom he actually named in
the complaint.
The reason for Goodman’s mistake, while irrelevant to whether
Praxair Services, Inc., had adequate notice, is nonetheless puzzling in
view of the complaint’s allegations. In one place, the complaint states,
ambiguously, "Defendant Praxair, Inc. is a corporation, and successor
in interest to Tracer Research Corp., which was acquired in Novem-
ber 2002 by Praxair Service[s], Inc. a wholly owned subsidiary of
Praxair, Inc." Yet in another place in the same complaint, Goodman
alleges, "To date, Defendant Tracer Research Corp., and its successor
in interest, Praxair Services, a wholly owned subsidiary of Praxair,
Inc., . . . have failed and refused to pay the Plaintiff as agreed."
Finally, in his prayer for relief, Goodman demands judgment against
"Praxair, Inc. as successor in interest of Tracer Research Corp." These
22 GOODMAN v. PRAXAIR, INC.

-- 22 of 29 --

apparent inconsistencies need not be reconciled except to conclude
that Praxair Services, Inc., was put on notice that Goodman had made
a mistake in pleading because, incontrovertibly, he intended to name
as defendant the successor in interest to Tracer Research, and Praxair
Services, Inc., knew who that was.
In addition to the complaint’s facial expression of intent to sue the
successor in interest, we may also impute that knowledge to Praxair
Services, Inc., because both Praxair Services, Inc., and Praxair, Inc.,
were closely related business entities represented by the same law-
yers. The history of Rule 15(c)(3) informs the significance of these
circumstances. The central concern when the current Rule 15(c)(3)
was added was the misnaming of government instrumentalities. "The
problem has arisen most acutely in certain actions by private parties
against officers or agencies of the United States." Fed. R. Civ. P. 15
advisory committee’s note (1966 amendment). The relationships of
corporate entities under a single umbrella are analogous to the rela-
tionships among various agencies of the United States government.
Though the advisory committee’s note does not outline the precise
amount of latitude for improper naming of government entities, it
clearly contemplated a liberal approach, suggesting reversal of several
earlier cases taking a hardline approach to amendments. Id. The Rule
itself states that service of process on the United States Attorney satis-
fies the notice requirement with regard to any United States agency
or officer. Similarly, if we are to take the Rule as addressing the same
problem in the private sector, we can conclude that when a plaintiff
alleges a comprehensible claim against one of a group of closely
related and functioning business entities or corporations, the other
entities in that group, barring a contrary showing, will be charged
with knowledge under Rule 15(c)(3)(B) of the entity properly answer-
able to the claim. In the circumstances of this case, Praxair Services,
Inc., as a subsidiary of Praxair, Inc., represented by the same attor-
neys, is accordingly imputed with knowledge of Goodman’s claim
against it and of the facts giving rise to that suit when the original
complaint was served. Indeed, it concedes it had notice but thought,
it asserts, that Goodman intended to sue Praxair, Inc., and not Praxair
Services, Inc.
We conclude that Praxair Services, Inc., knew that it was the suc-
cessor to Tracer Research Corporation’s contractual liability and
23 GOODMAN v. PRAXAIR, INC.

-- 23 of 29 --

therefore it knew or should have known within the limitations period
that it was the proper party to Goodman’s suit. Since Praxair Services,
Inc., has conceded that it has suffered no prejudice to its defense of
Goodman’s claim, we conclude that the requirements for relation-
back under Rule 15(c)(3) have been met.
The judgment of the district court is reversed, and the case is
remanded for further proceedings.
REVERSED AND REMANDED
WILLIAMS, Chief Judge, concurring in part:
I join only in Parts I and II of Judge Niemeyer’s opinion. Because
it does not "clearly appear[ ] on the face of the complaint" that the
statute of limitations period had expired, the district court erred in dis-
missing the complaint under Fed. R. Civ. P. 12(b)(6). Richmond,
Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th
Cir. 1993).
Having determined that the district court erred in ruling, based on
the complaint alone, that the statute of limitations had expired, I, with
respect to my colleagues, believe that we should remand this case for
discovery so that the district court may determine when, in fact, the
statute of limitations period expired. Instead, the majority of my good
colleagues have decided that we should address relation-back under
Rule 15(c) of the Federal Rules of Civil Procedure because the district
court could "later find[ ]," ante at 10 (emphasis added), that the stat-
ute of limitations period expired before Goodman filed his amended
complaint. They have decided to proceed with the inquiry even
though we do not know the one fact necessary to address the relation-
back issue, that is, whether the amended complaint was in fact filed
outside the three-year statute of limitations period. The majority thus
reaches the relation-back issue only by hypothesizing that the statute
of limitations has expired. I believe this approach is unusual and con-
trary to Article III of the Constitution as articulated by the Supreme
Court’s and this circuit’s precedent. See Aetna Life Ins. Co. v.
Haworth, 300 U.S. 227, 241 (1937) (instructing that federal courts are
not to give "opinion[s] advising what the law would be upon a hypo-
thetical state of facts"); Public Serv. Comm’n v. Wycoff Co., 344 U.S.
24 GOODMAN v. PRAXAIR, INC.

-- 24 of 29 --

237, 242, 244 (1952) (holding that federal "judicial power does not
extend to abstract questions" and the dispute in a particular case "must
not be nebulous or contingent but must have taken on fixed and final
shape" (internal quotation marks and alterations omitted)); Fobian v.
Storage Tech. Corp., 164 F.3d 887, 891 (4th Cir. 1999) (stating that
"[i]ndisputably . . . federal courts . . . are prohibited from issuing
opinions advising what the law would be upon a hypothetical state of
facts" (internal quotation marks and alternations omitted)). Therefore,
we should decline to address the Rule 15(c)(3) issue.
The parties want us to address the Rule 15 issue solely to provide
guidance to the district court on remand; they admitted as much at argu-
ment.1 The majority grants them this wish; I would not. Cf. Calderon
v. Ashmus, 523 U.S. 740, 747 (1998) (disallowing a party from using
the Declaratory Judgment Act "to gain a litigation advantage by
obtaining an advance ruling on an affirmative defense").
Finally, apart from the hypothetical factual underpinning for the
majority’s opinion on Rule 15(c)(3), I believe that we should not
address the relation-back issue because it is also unnecessary to the
resolution of this appeal. See Banks v. Dretke, 540 U.S. 668, 689 n.10
(2004) (declining to address a habeas petitioner’s alternative grounds
for relief because it was "unnecessary" in view of the court’s grant of
the petition on other grounds). For that reason, we should adhere to
the "cardinal principal of judicial restraint," that "if it is not necessary
to decide more, it is necessary not to decide more."2 PDK Labs., Inc.,
1Contrary to the majority opinion’s attempt to suggest otherwise, this
opinion is not inconsistent with the opinions I wrote for the court in
United States v. Barile, 286 F.3d 749 (4th Cir. 2002), and Resolution
Trust Corp. v. Allen, 16 F.3d 568 (4th Cir. 1994). Those cases, unlike the
majority’s opinion in this case, did not render legal judgments based on
hypothetical facts.
2The majority opinion claims that "the relation-back issue . . . is much
more than something to be decided as a matter of guidance" because
"[n]ot deciding the relation-back issue now would leave in place an erro-
neous decision." Ante at 10-11 n.2. I beg to differ. Because the district
court’s dismissal of this case was in error, we must vacate that order,
leaving no decision that could operate as law of the case.
25 GOODMAN v. PRAXAIR, INC.

-- 25 of 29 --

v. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004)
(Roberts, J., concurring in part and concurring in the judgment). For
these reasons, I concur only in Parts I and II of the majority opinion
and concur in the judgment.
Judge Shedd has authorized me to indicate that he joins in this
opinion.
GREGORY, Circuit Judge, concurring in part:
I, too, join only Parts I and II of Judge Niemeyer’s opinion. I agree
that the district court could not, from the face of Goodman’s com-
plaint, determine when the statute-of-limitations period expired. It
could not, therefore, dismiss the complaint for being filed outside the
limitations period. See Richmond, Fredericksburg & Potomac R.R.
Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993). I concur only in part
because I agree with Judge Williams that we should not reach the
relation-back question. Judicial economy ought not to trump the ordi-
nary rule that a court should decide only that which is necessary to
settle the immediate dispute between the parties before it. I consider
Part III, which is necessary to neither the reasoning of Part II nor the
resolution of Goodman’s appeal, to be dicta. Even if I felt it proper
to decide the relation-back question today, however, I could not join
Part III of the majority’s opinion.
Despite its claims to be consistent with our Rule 15(c) precedent,
the majority opinion changes the law of our circuit substantially.
Although the majority and the other circuits that agree with it are cor-
rect that the language of Rule 15(c)(3) does not distinguish among
types of mistakes concerning identity, this Court has done so until
now. In W. Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1201
(4th Cir. 1989), we expressly adopted the Seventh Circuit’s interpre-
Furthermore, although the majority opinion asserts that the parties
have agreed that relation-back issue will necessarily be in play on
remand, the opinion points to nothing in the record or briefs to back up
this assertion. And if it could, then Part II of the majority opinion is
unnecessary.
26 GOODMAN v. PRAXAIR, INC.

-- 26 of 29 --

tation of mistake as it is used in Rule 15(c)(3). That court differenti-
ates between mistakes involving "misnomer" and mistakes involving
"lack of knowledge concerning the proper party." See Eison v.
McCoy, 146 F.3d 468, 471-72 (7th Cir. 1998); Wood v. Worachek,
618 F.2d 1225, 1229-30 (7th Cir. 1980) (describing a misnomer situa-
tion as one in which "the proper defendant is already before the court
and the effect [of the amendment] is merely to correct the name under
which he is being sued").* We have done the same.
In Locklear v. Bergman & Beving AB, 457 F.3d 363, 366 (4th Cir.
2006), we drew a clear distinction between "mistake due to lack of
knowledge and mistake due to a misnomer," and that distinction was
necessary to our holding. Mistake due to lack of knowledge, we said,
is not a "‘mistake’ as that term is used in Rule 15(c)(3)(B)." Id. We
called the distinction between misidentification and lack of knowl-
edge "inherent in the meaning" of the Rule and stated plainly: "Rule
15(c)(3)(B) is not satisfied when the claimed mistake consists of a
lack of knowledge of the proper party to be sued." Id. at 367, 368. We
did not use the mistake language "as a shorthand term to hold that the
party to be added must have known of the mistake," as the majority
maintains. Ante at 19. We decided the case by interpreting the word
mistake in Rule 15(c)(3) to include one kind of error and exclude
another. See 457 F.3d at 368. The plaintiff in Locklear raised only
two arguments on appeal, the first of which was that his reason for
replacing one party name with another qualified as a mistake under
Rule 15(c)(3). See id. at 365. We determined that it did not, and ended
our deliberation there. Id. at 368. Perhaps our judgment also could be
justified by a lack of notice to the proper defendant, but we did not
rely on that justification in our decision. I find no support for the
majority’s claim that in Locklear "[w]e held that the manufacturer
was not chargeable within the limitations period with knowledge that
it should have originally been named a defendant." Ante at 19. More
*For other courts that limit relation back based upon the nature of the
plaintiff’s mistake, see, e.g., Rendall-Speranza v. Nassim, 107 F.3d 913,
919 (D.C. Cir. 1997) ("We hold, therefore, that the plaintiff’s attempt
belatedly to name the IFC as a defendant because she had earlier failed
to appreciate that the IFC might be liable is not an amendment based
upon ‘a mistake of identity’ . . . ."); Wilson v. United States Gov’t, 23
F.3d 559, 563 (1st Cir. 1994).
27 GOODMAN v. PRAXAIR, INC.

-- 27 of 29 --

importantly, we decidedly did not limit our holding in Locklear "to
the conclusion that the machine manufacturer did not have the knowl-
edge required by Rule 15(c)(3)(B)," as the majority maintains. Ante
at 20. Make no mistake: today the majority overrules Locklear. I
would not.
I see no reason to abandon our precedent of almost twenty years
in favor of a policy that will decrease the incentives for plaintiffs to
investigate their cases fully before filing a lawsuit. I think it good that
our former interpretation of the Rule limited the mistakes courts
would forgive to the clerical and inconsequential. Rule 15(c)(3) is not
intended to excuse errant lawyering, but to forgive technical, clerical
errors. See Fed. R. Civ. P. 15 advisory committee’s note (1991
amendment) ("[A] complaint may be amended at any time to correct
a formal defect such as a misnomer or misidentification.") It is rea-
sonable to expect plaintiffs properly to identify those whom they hale
into court. It is likewise reasonable to penalize careless plaintiffs who
tarry too long by forbidding them to substitute the correct defendant
after the limitations period has expired.
The majority’s interpretation will result in more lawsuits filed
against incorrect defendants as the costs associated with improperly
identifying the proper defendant drop. Plaintiffs, knowing that courts
will allow them to swap defendants if they select the wrong one by
mistake, will have fewer incentives to name the correct defendant the
first time. The incentives to name the proper defendant will remain
very strong of course, but on the margin we should expect an increase
in the number of incorrect defendants sued now that the majority has
given Rule 15(c)(3) a more liberal interpretation. Even though mis-
taken plaintiffs will eventually shift their lawsuits to the proper defen-
dants (or lose the lawsuits), the improper ones must still bear the costs
associated with defending themselves until the correct defendants are
found.
Under the interpretation of Rule 15(c)(3) we articulated in Lock-
lear, Goodman would not be permitted to relate his amendment back.
Goodman intended to sue Tracer’s successor-in-interest, but he mis-
takenly concluded that the successor was Praxair, Inc. instead of Prax-
air Services, Inc. As he admits, he "simply failed to determine that the
party [he] wanted to sue—Tracer’s successor-in-interest—was PSI
28 GOODMAN v. PRAXAIR, INC.

-- 28 of 29 --

rather than PI, in part because of the confusing corporate relation-
ships." (Appellant’s Reply Br. 14.) Similarly, Locklear knew he
wanted to sue the manufacturer of the machinery that injured him; he
simply failed to determine that the party was Luna and Bergman
instead of Hassleholms. See Locklear, 457 F.3d at 364. Goodman’s
case may seem a bit more sympathetic because his initial guess came
so close to the mark, but the policy implications for allowing relation
back in his case are the same as they were in Locklear. If Goodman
is permitted to relate back his amended complaint, a future plaintiff
will be free to file suit against a placeholder defendant while continu-
ing to search for the proper one any time the plaintiff can make a
plausible claim that he believed the originally named defendant was
the correct one, provided the other requirements of Rule 15(c) are
met.
The majority acknowledges the "good-sense results" obtained by
courts that interpret Rule 15(c)(3) as I do—as we did before today—
but chooses to part ways with them. Ante at 17, 20. I would remain
in their company and continue to reach those good-sense results.
29 GOODMAN v. PRAXAIR, INC.

-- 29 of 29 --