Krupski v. Costa Crociere, S.p.A. – Oral Argument – April 21, 2010

Media for Krupski v. Costa Crociere, S.p.A.

Audio Transcription for Opinion Announcement – June 07, 2010 in Krupski v. Costa Crociere, S.p.A.

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John G. Roberts, Jr.:

We’ll hear argument this morning in Case 09-337, Krupski v. Costa Crociere, S. p. A. Mr. Bendure.

Samuel A. Alito, Jr.:

–and doesn’t come back for 2 weeks.

Mark R. Bendure:

Mr. Chief Justice, and may it please the Court: This case revolves around Rule 15(c)(1)(C) of the Federal Rules of Civil Procedure.

In pertinent part, if two subsections are — are satisfied, the rule permits relation back of an amendment adding a new defendant after expiration of the limitations period.

The courts below found, and Respondent does not question, that we satisfied the first subsection: Notice and no prejudice.

That arose from the service of the original complaint upon Costa Cruise, the agent and corporate affiliate represented by the same attorney as Respondent Costa Crociere.

Ruth Bader Ginsburg:

Do you know, Mr. Bendure, what exactly the corporate relationship was between the two?

Mark R. Bendure:

No, Your Honor, not the corporate relation.

The functional relationship as described in the affidavit is that Costa Cruise is the booking agent for Costa Crociere.

And for the notice procedure, according to the affidavit of Mr. Klutz, Costa Cruise engaged the IRSI adjustment service to resolve claims arising on the ship.

So in that respect it was also, in our view, an agent of Costa Crociere.

But the specific corporate relationship is not known.

Ruth Bader Ginsburg:

Thank you.

Mark R. Bendure:

Because of that timely service on Costa Cruise, we satisfied the first subsection.

And as this Court noted in Schiavone, timely service on one defendant may serve to give imputed notice to a related defendant, which is what we have here.

John G. Roberts, Jr.:

Counsel, your — your client tripped over the cable, right?

Mark R. Bendure:

Correct.

John G. Roberts, Jr.:

What if the case were there were two people behind her and she was pushed?

And she didn’t know which one pushed her, Jones or Smith.

So she sues Jones, and Smith knows all about it because, of course, he’s a key witness or whatever.

Can he be substituted later on because he was the person she should have sued?

Mark R. Bendure:

If you’re talking about a lack of knowledge of the real name, probably–

John G. Roberts, Jr.:

Not just the real name.

It’s not that Jones pushed her, but his real name is Johnson.

It’s that Jones — whoever pushed her; I forget — but one guy–

[Laughter]

One of the people pushed her, and she named that — she named the other person.

She made a mistake about who pushed her.

Can they have substitution in that case?

Mark R. Bendure:

–I would say yes, because — again, assuming that all of the other criteria are satisfied.

John G. Roberts, Jr.:

Yes.

The non-pusher has notice–

Mark R. Bendure:

Yes.

John G. Roberts, Jr.:

–and everything else.

But there’s no relationship between the two of them.

Mark R. Bendure:

It’s — it’s obviously a slightly different and more difficult case from our perspective, but what I think is critical is the status that’s involved.

In this particular case, the suit was filed against the vessel operator, and that vessel operator was identified as Costa Cruise, when we know that the actual identity was Costa Crociere.

Ruth Bader Ginsburg:

What was the first — when was your first notice of that?

I mean, it was on the first page of the ticket, but the answer came after the statute of limitations.

Was that your first notice that there was this different entity, or did you know that earlier?

Mark R. Bendure:

It was — we say that was the first notice.

Now, the circuit court used an imputed knowledge rationale to suggest that the inclusion of the name “Costa Crociere” within the definitions section gave us what I would call constructive notice.

But in terms of actual knowledge that — that we had sued the wrong party, it was the answer which was filed after–

Antonin Scalia:

Well, you don’t — I didn’t understand you to deny that the ticket made it very clear who operated the ship.

Mark R. Bendure:

–I’m not sure–

Antonin Scalia:

Do you contest that?

Mark R. Bendure:

–I contest that it makes it very clear, but I don’t contest that one could conclude that that provided constructive notice, that if read carefully one might infer.

Antonin Scalia:

Well, why not?

Don’t you read the contract carefully before you bring a lawsuit?

Mark R. Bendure:

Well, actually it was under definitions.

And according to the definitions, Costa Crociere fell within the same definition of “carrier” as the steward, the ship itself, any–

Antonin Scalia:

So you are — you either are contesting or you’re not contesting that it’s clear from the ticket.

I had assumed it was clear from the ticket.

Mark R. Bendure:

–I’m not — I am not agreeing that it’s clear.

I am agreeing that it provides constructive notice from which one might infer that.

Not clear, but discernible.

Antonin Scalia:

So you had — so then you had notice even before the suit was filed.

It was on the — it was on the ticket.

Mark R. Bendure:

We had what the circuit court referred to as “imputed knowledge”.

Now, I think there’s a–

Ruth Bader Ginsburg:

Did the — did the name show up any place other than page 1 of the general conditions of passage?

Mark R. Bendure:

–I don’t believe so, Your Honor.

Ruth Bader Ginsburg:

That’s — and this is what?

An 11-page, very small print–

Mark R. Bendure:

It’s an 11-page, small print document.

And one thing that bears mention is that reference is under the designation “Definitions”, because Respondent makes some hay out of the fact that we complied with other requirements which are under a different heading which says “Limitations of liability”.

But what we also had was that we purchased the ticket from Costa Cruise; it was sent by Costa Cruise.

We had the pre-suit notice sent to Costa Cruise, responded by the — the gentleman under the heading “Costa” that says “claims administrator for Costa Cruise”.

So there was certainly what I would call conflicting information at best about which was the name of the actual vessel operator–

Antonin Scalia:

Not — not if you read the definitions on page 1.

And if you are not going to read all 11 pages before you file suit, I would think you would at least read page 1.

And that, it seems to me, made it clear.

Mark R. Bendure:

–Well, it — well, under the same definition, the steward would be a carrier every bit as much as Costa Crociere, S. p. A. So it seems to me by that reasoning you could conclude that the steward or the janitor is the vessel operator because they are likewise defined as the carrier in that definitional section.

And, in fact, it also includes the vessel itself within the definition.

So let’s assume that my client had, instead of suing Costa Cruise, sued Costa Magica, the name of the vessel itself.

Most of the cases would say that an amendment like that to add the actual name, once you have identified the status of the defendant you seek to sue, falls within the subsection (ii), which is addressed primarily to the constructive notice of the defendant, that they knew or should have known that they would have been brought in the suit but for a mistake concerning the proper party’s identity.

But the general focus of that second subsection, I think, is to look to whether this defendant knew or should have known that it was the intended target.

Anthony M. Kennedy:

Let me — I’ve been thinking about the Chief Justice’s question where the two people are pushed and you don’t know which person — or two people fired the shotgun, and there’s only one pellet, and you don’t know which gun the pellet came from.

In that case, I think we could stipulate that even by reasonable inquiry, you wouldn’t know.

In your case, I think the — and I think the difference in the case is that “reasonable inquiry” means you should have known.

So now we have a rule that excuses something you should have known but doesn’t excuse something you — you couldn’t have known, which seems odd.

And because it’s odd, therefore, maybe that’s why it only applies to clerical errors.

Mark R. Bendure:

Well, actually when it talks of mistake, it seems to me that the very notion of mistake connotes error.

I looked at a couple of definitions, dictionary definitions.

Merriam Webster’s defines a mistake as, quote, “a wrong judgment” or, quote,

“a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention. “

So, at least in that colloquial sense, the very nature of mistake implies some measure of blameworthiness.

And, indeed, it’s hard to conceive of a mistake that couldn’t be avoided.

And I think that’s the problem with looking to the ticket, because what the definition on the ticket essentially says is: With due diligence, you might have avoided the mistake.

But in my view, and I think in the view of the language of the rule, that doesn’t change the very nature of it as being a mistake.

Sonia Sotomayor:

Counsel–

Mark R. Bendure:

Certainly.

Sonia Sotomayor:

–assume I accept your argument, and I am the cruise operator — the cruise owner, cruise ship owner, and I look at the complaint, and I say: I think they really meant me, but — I think.

Now, within the 4(m) period, which is the period in which I am supposed to reasonably know that I would have been named absent a mistake, here an answer is filed, and you are told there is a mistake, and you don’t correct the mistake.

What conclusion would a reasonable person at that second juncture make about whether you made a mistake or not?

Mark R. Bendure:

I think–

Sonia Sotomayor:

And I think that’s what the issue is here, which is, assuming the complaint could be read as a mistake during the 4(m) period, wasn’t that mistake corrected, and you refused or failed to act?

Mark R. Bendure:

–Let me respond both legally and factually.

Legally, I submit that it doesn’t make a difference because under the text of the rule if during that 4(m) period they had the knowledge that you’re suggesting and which would be suggested by the Respondent when they say, I think, if you had filed the amended complaint and served it a month after the answer, it would have been timely, we would have done it.

That acknowledges that there was a mistake, and once there is a mistake, if during that 120-day period they knew or should have known that it would have been brought against them but for the mistake, that knowledge doesn’t evaporate by later events, as long as there is knowledge during that period.

Sonia Sotomayor:

That makes so little sense to me.

Here I think — and for the following reason: You seriously I don’t think could contend that if you had sought to amend a year later, that that would have been timely, correct?

Mark R. Bendure:

Correct.

Sonia Sotomayor:

All right.

But putting aside prejudice–

Mark R. Bendure:

Okay.

Sonia Sotomayor:

–what the lower court said was because your delay speaks to a choice, that that’s the only thing a reasonable defendant would have assumed, that having been told that you sued the wrong party and you continued in that action, that that’s what you intended to do, to sue that wrong party.

Mark R. Bendure:

Let me point out factually — and I did not stress it in my brief.

The answer was filed on February 25th.

Twenty-three days later, on March 20th, the court entered a scheduling order which said: You have until the end of June to amend your complaint to add parties.

So it seems to me that a defendant faced with a court order that says the time for amendment extends till the end of June would not be drawing any conclusions that the plaintiff’s state of mind had changed.

And one difficulty with trying to look at different points during the 120-day period is that it seems to me you’d have a constantly moving target.

If you say that we satisfied 120(m) at one point in time but somehow that’s not enough and at a later point in time maybe they didn’t know it any more, and then perhaps I guess in theory you could have them again — if we had sent them a letter even after that and said, you know, we really did mean it, and then for some reason they concluded otherwise, you’d have a constantly moving target.

And that’s–

Ruth Bader Ginsburg:

–Mr. Bendure, would you explain one factual matter to me?

I might have gotten this wrong, but I thought the answer was filed after the 1 year had run.

Mark R. Bendure:

–It had.

It had.

Ruth Bader Ginsburg:

So when the answer was filed it was too late for you to come within the statute of limitations.

Mark R. Bendure:

Absolutely true.

Ruth Bader Ginsburg:

And I thought that would be the answer that you would give to Justice Sotomayor, because when you got the answer — which was filed after how many days?

Mark R. Bendure:

It was filed I think 24 days after the complaint.

Ruth Bader Ginsburg:

If you had gotten that a few days earlier, you could have amended, and then we wouldn’t be here.

Mark R. Bendure:

That’s certainly true, Your Honor.

And I think it also–

Sonia Sotomayor:

I’m sorry.

You have 120 days to amend, don’t you, from the filing of the complaint?

Mark R. Bendure:

–No, Your Honor.

The 120 days is the time frame for the notice to the defendant.

Sonia Sotomayor:

Right.

Mark R. Bendure:

It — 120 days after the amended complaint is our time for service of the amended–

Sonia Sotomayor:

Complaint.

Mark R. Bendure:

–complaint on the new defendant.

But I think the point that is raised by Justice Ginsburg is this: Once we find out and the limitation period has already expired, school’s out.

If we tried to amend immediately thereafter — if we hadn’t made a mistake — we couldn’t amend 1 day after expiration of the limitation period.

So if we had acted immediately, we still don’t get relation back unless we’ve satisfied the two criteria of the subsections.

But if we do satisfy those within the 120-day period, then we fall in the safe haven provided by the rule whether the amendment itself occurs 1 week, 3 weeks, or 7 weeks afterwards.

That–

Ruth Bader Ginsburg:

But the basic point is the answer didn’t come in until you were already out under the statute of limitations.

Mark R. Bendure:

–Correct.

Ruth Bader Ginsburg:

So from their point of view, nothing else matters; you were out when they filed their answer, and you could do nothing to cure that.

Mark R. Bendure:

We could do nothing to, as a matter of right, file within the limitation period.

Anthony M. Kennedy:

Did your amended complaint contain any new and material allegations other than the name correction?

Mark R. Bendure:

It actually was a second count, but it was the same allegations against Costa Crociere that had been made against Costa Cruise.

We did not amend the theories of liability.

And, again, getting back to the question of status and theories, I think that’s the critical distinction between this case and the cases they rely upon, Ish Yerushalayim and things like that, where you’re changing from an individual defendant to an institutional defendant or vice versa on a different theory.

And, of course, you couldn’t mistake an individual for an institution.

And that I think is the line of demarcation that we’re asking the Court to draw, and it explains why in the lower courts the decisions which present our paradigm all or virtually all allow relation back; whereas, those that seek to amend a change from an individual to a corporation or vice versa often don’t permit relation back–

Antonin Scalia:

I thought that the only condition was that it had to arise out of the same event or transaction, which would give you much more running room than — than what you assert.

Mark R. Bendure:

–Only if you’re amending against the same defendant.

Mark R. Bendure:

If you are adding a new defendant, you have to satisfy (i) and (ii), which look to the notice and reason to know of the new defendant.

Ruth Bader Ginsburg:

Mr. Bendure, in addition to the mailing of the ticket — the mailing of the ticket came; it said “Costa Cruise” — were there any other connections between the plaintiff passenger and Costa Cruise beyond the ticket coming in an envelope that says “Costa Cruise”?

Mark R. Bendure:

There was the — the pre-suit claims notice which was sent to Costa Cruise at the Florida address, in attempted compliance with the provision of the ticket which says you must file notice to the carrier before filing suit.

And you have to do that within 185 days.

So we not only got the ticket from Costa Cruise — we bought it from Costa Cruise — the ticket itself, if you look at I think it’s 25a of the appendix to the petition for certiorari, there is a prominent page which says “Costa Cruise, cruise company” next to a picture of the vessel.

So we have that.

Then when we filed the notice, we sent it to Costa Cruise, we get a letter back from a person who claims to be in a position to resolve the liability of the vessel over — owner, signed by him as claims administrator for Costa Cruise.

Those are the things — oh, and then we have, prior to the commencement of suit, the Internet investigation about which Florida company is registered to do business in the State of Michigan, and we look at the Costa Cruise Web site, which says:

“Costa Crociere with several offices in several countries, United States office, Costa Cruise, Florida. “

So those are some of the things which give rise to the mistake–

Antonin Scalia:

Mr. Bendure, can — can I come back to your — I’m not sure why it matters, but it seems to me you’re giving too narrow an interpretation, and I would not like our opinion to read any more narrowly than the statute allows.

It seems to me that if you assert a different claim arising out of the same transaction, you would be able to amend.

If you will look at (c)(1)(C), which is what you’re asserting here, right?

(C)(1)(C) says,

“the amendment changes the party or the naming of party against whom the claim is asserted, if Rule 15(c)(1)(B) is satisfied. “

Then you go back to (1)(B) and it says,

“the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out. “

It doesn’t say it has to be the same claim.

Mark R. Bendure:

–There’s no question we satisfy that.

Everybody agrees.

Antonin Scalia:

I understand that.

That’s why I don’t understand why you’re arguing a more narrow — a more narrow interpretation.

Mark R. Bendure:

Because I’m forced to–

Antonin Scalia:

It seems to me you’re home free with (B).

Mark R. Bendure:

–Unfortunately, (C) then goes on and says:

“And if, within the period provided. “

(i) and (ii).

So–

Antonin Scalia:

Oh, yes, but — but those are the only things we — we have to argue about.

Mark R. Bendure:

–That’s correct.

Antonin Scalia:

There’s no doubt that you are asserting — even if you were asserting a different claim, it certainly arose out of the same transaction or event, didn’t it?

Mark R. Bendure:

Certainly.

No question about that.

Antonin Scalia:

Okay.

Mark R. Bendure:

If the Court doesn’t have any additional questions at this time, I’d like to reserve the remainder of my time for rebuttal.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Glazier.

Robert S. Glazier:

Mr. Chief Justice, and may it please the Court: There are, we suggest, two issues before the Court: The first is the legal question of whether a plaintiff’s knowledge about the identity of the proper party can preclude a finding that there was a mistake concerning the identity of the proper party.

That, we suggest, is in some ways the easier issue, because there are — there’s abundant authority from the circuit courts of appeal and from this Court in Nelson v. Adams USA, where the Court said the rule requires a mistake.

In that case, there was no mistake.

Ruth Bader Ginsburg:

Mr. Glazier–

Stephen G. Breyer:

It’s no mistake if you happen to know it, if you happen to know who the right party is?

Robert S. Glazier:

Correct.

And–

Stephen G. Breyer:

Ever?

Robert S. Glazier:

–Yes.

Stephen G. Breyer:

Have you ever driven a car where your wife has said turn left and you’ve turned right?

[Laughter]

Has that ever happened to you?

Robert S. Glazier:

Yes.

Stephen G. Breyer:

Was there anything you didn’t know?

Robert S. Glazier:

What the facts are here, Your Honor–

Stephen G. Breyer:

No, I’m asking about this question, my hypothetical.

Robert S. Glazier:

–You know–

[Laughter]

Stephen G. Breyer:

Was there anything you didn’t know?

Robert S. Glazier:

There is nothing that you did not know.

Stephen G. Breyer:

Correct.

Did you do it by mistake?

Yes, of course, you did.

Stephen G. Breyer:

It’s happened to every human being.

There are millions of instances in which people do things by mistake where, in fact–

Antonin Scalia:

I think your wife made a mistake.

I don’t think you made a mistake.

[Laughter]

Stephen G. Breyer:

–No, my wife does not make mistakes.

[Laughter]

Robert S. Glazier:

I think–

Stephen G. Breyer:

I make mistakes, and sometimes I make mistakes knowing all the facts, and so do you and so does everybody else.

So I never heard of this thing that you can’t make a mistake knowing all the facts.

But anyway, here we have a person who didn’t know all the facts.

What the judge says is he should have known all the facts.

Where in the record does he say he did know all the facts?

Robert S. Glazier:

–Where — in three different times the plaintiff was informed of the facts.

But let me say on the–

Stephen G. Breyer:

That’s a different matter.

My wife told me to turn left and I turned right, okay?

But I didn’t take it in.

Robert S. Glazier:

–Well–

Stephen G. Breyer:

So that’s a different matter.

Where does it say that he did know the facts as opposed to he should have known the facts?

Robert S. Glazier:

–The circuit court refers — talks about imputed knowledge.

We disavow that.

There was no need for imputed knowledge in this case.

What imputes knowledge is someone who does not have knowledge.

Courts and lawyers make that up.

If you don’t have knowledge–

Stephen G. Breyer:

I just want the citations to the page.

I wasn’t challenging you.

I just wanted the citations to the page–

Robert S. Glazier:

–There are–

Stephen G. Breyer:

–where there’s a finding that, in fact, he knew that this company called “Costa Cruise” in Italian is the same as the company called “Costa Cruise” in English?

I take it “Crociere” means “cruise”.

Robert S. Glazier:

–They are — they’re separate corporations.

Stephen G. Breyer:

Yes, yes.

One is called “Costa Cruise” in Italian and one is called “Costa Cruise” in English.

And I just want to know where it says in the record that the client or he, the lawyer, actually knew, actually knew that he should have sued the one that spells its name in Italian?

Robert S. Glazier:

They are separate corporations.

There’s nothing in the record that says–

Stephen G. Breyer:

I didn’t ask you that question.

I’m asking for a record citation as to where there is a finding that this particular plaintiff knew that the Italian company called “Costa Cruise” was in fact the one he should have sued?

Robert S. Glazier:

–There is a finding–

Stephen G. Breyer:

I’ll write them down and look at them later.

Robert S. Glazier:

–The finding on page 19a of the district court opinion says–

Antonin Scalia:

19a of the petition?

Robert S. Glazier:

–19a of the cert petition says

“Her failure to timely naming Costa Crociere, S. p. A. as defendant. “

Stephen G. Breyer:

I thought what the district court said was “impute” the knowledge.

Robert S. Glazier:

No.

No, the district court did not impute knowledge, and this is an important point.

The circuit court imputed knowledge, and–

Stephen G. Breyer:

Where does it say that?

Where does it say that on 19a?

Robert S. Glazier:

–19a — it’s not precisely it, but it says,

“Her failure to timely named Costa Crociere as defendant was not the result of a mistake. “

It does not specifically say–

Stephen G. Breyer:

Well, I — I know.

I would say in reading this, that both courts have made the most elementary mistake of the English language in thinking that when a person doesn’t know something but should have known it, that that’s inconsistent with a mistake.

That’s the very definition of a mistake.

Robert S. Glazier:

–Your Honor–

Stephen G. Breyer:

Now, all I want is some citation from you that shows that isn’t what they thought.

Robert S. Glazier:

–Well, the best I can do is the conclusion that there is not a mistake.

But I — I need to–

Stephen G. Breyer:

Well, that’s the conclusion, and when I read two sentences down, it said they may have had constructive knowledge.

The word “constructive” to me, when I hear I want to run out the door, because what the word “constructive” to me means is not knowledge.

Robert S. Glazier:

–I’d like to–

Antonin Scalia:

I’m sorry.

I — I am not following it.

Where — where — where–

Stephen G. Breyer:

I’m on page 19a.

Antonin Scalia:

–Yes.

But he’s talking about constructive notice–

Stephen G. Breyer:

Constructive notice.

Antonin Scalia:

–by — by the defendant, not constructive knowledge by the–

Stephen G. Breyer:

All right.

Then what is — where is the page that it says that the plaintiff had actual, as opposed to imputed, knowledge?

Robert S. Glazier:

–The — there — there is not that sentence–

Stephen G. Breyer:

Okay.

Robert S. Glazier:

–in the opinion.

What there is, is the plaintiff made a conscious choice.

The facts of the case are, first of all, before the lawsuit is filed the plaintiff has the ticket.

There is no doubt, no doubt whatsoever, that the plaintiff or her attorney read–

Ruth Bader Ginsburg:

–Is there any other than that one page on the ticket, that against the mailing envelopes that she got that say “Costa Cruise” — is there anything in the entire record other than that definition page that includes carrier, that includes steward, anything else that tips her off that this is a different corporation?

Robert S. Glazier:

–There are three different pieces of evidence.

The first is the ticket.

The ticket defines carrier as Costa Crociere.

It is the only entity stated by name–

Antonin Scalia:

–It says it includes stewards.

What do you — what do you say to that?

Robert S. Glazier:

–I’m sorry.

Robert S. Glazier:

I didn’t–

Antonin Scalia:

It includes the stewards on the boat, according to your — your friend.

Robert S. Glazier:

–It lists one entity by name, Costa Crociere, and lists others by role.

Now, there may be some dispute over whether–

Sonia Sotomayor:

So why can’t Costa Cruise be perceived to hold one of those roles?

Robert S. Glazier:

–Well, one might argue that there might be a number of different entities that might be a carrier, but there is only one entity which is clearly the carrier, indisputably a carrier–

Ruth Bader Ginsburg:

What is the relationship between those corporations?

Robert S. Glazier:

–Costa Crociere is, I believe, one level removed an owner of Costa Cruise Lines.

Costa Crociere operates around the world.

They have different companies that operate as sales and marketing agents in different regions–

Ruth Bader Ginsburg:

But are they — are they sister corporations, a parent-sub–

Robert S. Glazier:

–No.

Ruth Bader Ginsburg:

–or what?

Robert S. Glazier:

Costa Crociere is parent, and I believe there’s a corporation below them, and then that corporation owns Costa Cruise Lines.

Anthony M. Kennedy:

When it’s below them, you mean it owns all the shares in its — in its subsidiary company?

Robert S. Glazier:

Yes.

John G. Roberts, Jr.:

You know, the — the definition of carrier includes independent contractors.

I mean — I — I would — other than that they are more closely related, I can see someone thinking, well, Costa Cruise is at least an independent contractor with which Costa Crociere does business.

Robert S. Glazier:

There might be more than one carrier, but there is one carrier identified by name.

It is the first — it is the first person listed.

Costa Crociere is the carrier.

I — I suggest that if one reads the first page of the ticket, one might have questions about whether there might be some other entities that are carriers, but there is simply no doubt that Costa Crociere is the carrier.

Ruth Bader Ginsburg:

And if you went to–

Robert S. Glazier:

Now, there is no–

Ruth Bader Ginsburg:

–If you went to the Web site, which was mentioned, for Costa Cruise, there would be a tab that says “Our ships” “Our ships” — and one of those ships is Costa Magica, whatever.

Robert S. Glazier:

–Yes.

Ruth Bader Ginsburg:

“Our ships”, and it identifies Costa Cruise as the cruise operator.

That’s the information that’s given to passengers in the United States who are going to book on these ships.

It says Costa Cruise, our ships, Costa Cruise is the operator.

That’s what was being put forth to the public.

Robert S. Glazier:

What — what — the relationship between the parties was governed by the ticket.

The ticket says, for example, the claim against the carrier has to be filed within the Southern District of Florida.

This claim was filed in Southern District of Florida, but they did not sue the carrier as identified on the ticket.

And the question is was there a mistake concerning the identity of the proper party–

Ruth Bader Ginsburg:

So it shouldn’t matter that this confusion was caused in large part by this entity that advertises in English under the name “Costa Cruise” and identifies Costa Cruise as the operator.

“The largest European cruise operator” is how Costa Cruise is — is identified in — in the advertising.

Robert S. Glazier:

–We — we believe that the ticket is clear, and that governs.

But even if one would disagree with that, then we move forward.

If there were any confusion, there’s an answer filed.

Costa Cruise Lines is sued.

Costa Cruise Lines denies that it can be held liable, says it wasn’t the carrier, it wasn’t–

Ruth Bader Ginsburg:

And the answer is filed conveniently after the 1-year period has run.

Robert S. Glazier:

–The answer is filed, but the question of whether the defendant knew or should have known that there — it — it would have been sued but for a mistake, the inquiry there is not within the limitations period.

It was until the 1991 amendment, which followed the Schiavone case.

John G. Roberts, Jr.:

Well, but I don’t — I mean, there’s some sharp practice going on here.

Paragraph 10 of their complaint sues Costa Cruise Lines because — saying they owned, operated, managed, supervised, and controlled the ocean-going passenger vessel.

And it’s the same lawyer for Costa Cruise as for Costa Crociere, right?

Robert S. Glazier:

Yes.

John G. Roberts, Jr.:

Okay.

So that lawyer looks at this and says: Aha, they made a mistake; they named the cruise line rather than the name in Italian.

So I’m going to wait until the statute of limitations runs, and then a couple of days after, I’m going to say aha.

Robert S. Glazier:

The statute of limitations is not the measuring period.

It was before the 1991 amendment.

Now, what happened here is the answer is filed, which makes clear the defendant — the defendant Costa Cruise Lines denies it was involved with the ownership, operation, or management.

That’s Joint Appendix 30.

Joint Appendix–

Ruth Bader Ginsburg:

Did the answer say the statute — the 1-year period has run?

Was that raised as a defense in the answer?

Robert S. Glazier:

–It was not raised in the — in the defense — it was not raised as defense in the answer.

It — it was not.

Ruth Bader Ginsburg:

When was it raised as a defense?

Robert S. Glazier:

It was raised 10 weeks later in a motion for summary judgment, which was still within the Rule 4(m) period, and that is the crucial period.

If upon reading the answer, which says the–

Ruth Bader Ginsburg:

But that — the Rule 4(m) period concerns when you can serve.

It doesn’t say that the statute of limitations is any more than what was the term of the — of the passage, was 1 year.

Robert S. Glazier:

–Well, the Rule 4(m) period is awfully important because Rule 15(c) turns on, since 1991, on the Rule (4)(m) period.

If during the Rule 4(m) service period, the — it became clear to Costa Crociere that it was an intended defendant, that it would have been sued but for a mistake, then the complaint against Costa Crociere would relate back, even though it was not timely filed.

Antonin Scalia:

Now, that — that assumes — that assumes — when, what is it, 1(C)(ii), 4(m).

Now, in the early part of that period, at — at one point in the period you should have known.

And at another point, because the answer was filed, you shouldn’t have known.

Robert S. Glazier:

Well–

Antonin Scalia:

And you’re relying on the fact that they filed an answer which — I’m sorry — that — that you filed an answer which made it very clear to them what the situation was.

But was there any point, any — and all it takes I think is any point within that 4(m) period — when you — you knew or should have known?

Robert S. Glazier:

–The answer, we submit, is no.

When they filed the complaint, the complaint indicated a couple of things.

First of all, they were suing Costa Cruise Lines, but they had read — the complaint made clear that they had read the ticket.

They specifically relied on the venue provision of the ticket.

So we knew that they had read the ticket, which clearly identifies Costa Crociere as being the carrier, yet they still–

Ruth Bader Ginsburg:

Where — where is the defense — I mean, the ticket says suit must be filed within 1 year of the date of any alleged injury.

And where is the — that defense stated?

You said it comes up 10 weeks–

Robert S. Glazier:

–In the motion for summary judgment, which — which is not in the joint appendix.

It’s docket entry 19.

The affidavit which is — was filed with the motion for summary judgment is in the — the Joint Appendix at Joint Appendix 33.

And the motion — the answer made clear that Costa Crociere is the carrier which could be liable, not Costa Cruise Lines–

John Paul Stevens:

Yes, but–

Robert S. Glazier:

–but there was no change.

John Paul Stevens:

–being realistic about it, as I understand it you’re relying entirely on the condition, general conditions of passage in the ticket, the fine print describing the term “carrier”.

That’s — but do you take into account that the cover of the ticket, which is what the passenger would look at, uses “Costa Cruises”, blah, blah, blah — “Costa Cruise Lines” and so — and doesn’t even mention the carrier?

Robert S. Glazier:

The–

John Paul Stevens:

Don’t you think, looking at that ticket, if you were a passenger you would think you were doing business with Costa Cruise?

Robert S. Glazier:

–Well, Your Honor–

John Paul Stevens:

Just looking at the cover?

Robert S. Glazier:

–If what–

John Paul Stevens:

Am I correct that on the cover of the ticket, the Italian name isn’t used at all?

Robert S. Glazier:

–On the cover, the Italian name is not used.

The ticketing agent’s name–

John Paul Stevens:

And isn’t that what the–

Robert S. Glazier:

–is Costa Cruise Lines.

John Paul Stevens:

–what the passenger would normally look at, understand who he is doing business with?

Robert S. Glazier:

If one were to not read the ticket, which on page 1–

Antonin Scalia:

Assuming — assuming the lawyer would just look at the cover before he files a lawsuit?

Robert S. Glazier:

–We know — if this were a question of uncertainty whether the lawyer read the ticket, that would be one thing, but we know that the lawyer read the ticket.

Stephen G. Breyer:

Well, I don’t understand what the lawyer reading the ticket has to do with this question.

John Paul Stevens:

Because the question is whether the lawyer made a mistake.

Isn’t that the question?

Robert S. Glazier:

Well–

John Paul Stevens:

And he did make a mistake.

Robert S. Glazier:

–The principle is if one knows what the true facts are — if one knows what the true facts are and proceeds in any event, then there’s no mistake concerning the–

Stephen G. Breyer:

That isn’t true, is it?

In the English language, it’s not true?

I mean, that’s why I was giving you some examples.

I don’t know; maybe there’s some special legal language somewhere written in Blackstone, or maybe it’s Lord Coke, I don’t know, that says when you use the word “mistake” don’t use it in English, use — use it in Italian.

0 [laugshter.]

But I mean, if we’re going to use it in English, there — it’s not hard to find instances where a person would know, but he’d still make a mistake.

Robert S. Glazier:

–Well–

Stephen G. Breyer:

And there’s even a fortiori–

Robert S. Glazier:

–Your Honor–

Stephen G. Breyer:

–if he doesn’t know, even if he should.

Robert S. Glazier:

–We have–

Stephen G. Breyer:

Isn’t that true?

Robert S. Glazier:

–What we have up front is the — the ticket.

If we move past that, it’s sort of a test case.

All right, did this plaintiff really not–

Stephen G. Breyer:

What possible reason is there that somebody who is hurt on a ship and has a lawyer, and she has a broken leg, and she’d like to get recovery, would deliberately sue the wrong person?

Robert S. Glazier:

–The plaintiff–

Stephen G. Breyer:

Is there such a reason?

Robert S. Glazier:

–The evidence in the record is that the plaintiff’s lawyer looked at the Web site and chose a United States corporation instead of–

Stephen G. Breyer:

And I’m just saying, did he do it by mistake?

If you were representing this person, would you want to sue the company that could give you some money if they are liable?

Or would you rather sue the Bank of America that has nothing to do with it?

[Laughter]

Robert S. Glazier:

–Well, if it were — if I had to sue Costa Crociere through the Hague Convention in Genoa, maybe a lawyer–

Stephen G. Breyer:

Well, I want to ask you about that, because in your brief you refer in your footnote on page 6 to requirements of the Federal Government 44101-44103.

So I looked those up.

I discovered that 44103 says that it is a requirement, and you say you follow these requirements, that you shall establish under regulations of the FMC financial responsibility.

And those regulations tell you that, at least as best I could read them, that you must furnish a written designation of a person in the United States as a legal agent for service of process, and they are referring to instances in which somebody on a ship suffered an accident.

So since you say that you are complying with that, I would like to know the name and address of that person in the United States for whom you must send legal process, because if obviously that had been on the ticket, that is precisely the man to whom this plaintiff would have sent the notice.

Robert S. Glazier:

–I cannot answer the question now.

Stephen G. Breyer:

Well then, were you correct when you said in your — in your brief that this company which you represent does comply with 44103?

Robert S. Glazier:

My understanding is the answer is yes, but I cannot address the specific question.

I submit–

Stephen G. Breyer:

It is relevant, I think, because it adds to the confusion if they are under a legal requirement to have a service — an agent to receive service, and then they not only don’t do it, but they don’t have it printed on the ticket.

And they get everybody mixed up by having the same name in English, or a very similar one, and announcing someone you’re supposed to serve, and then it turns out to be not that person you’re supposed to serve.

It’s a mysterious person that you can’t find.

Robert S. Glazier:

–But the question, though–

Stephen G. Breyer:

It seems odd.

I’d like to know what the explanation is of this.

Robert S. Glazier:

–Well, the question is not a more generalized blame explanation, but under the rule, the language of the rule, whether Costa Crociere knew or should have known that the action would have been brought against it but for a mistake concerning the proper party’s identity.

And the most problematic case — part of the case for the plaintiff is why, when they were told in the answer that they had not sued the proper party, that Costa Cruise Lines was not the carrier, was not the operator, but Costa Crociere is, why did the plaintiff not do anything?

Ruth Bader Ginsburg:

–But we — let’s clarify that point now.

I am looking at 3a, which is the court of appeals opinion, and it says that

“Costa Crociere moved to dismiss, arguing that it had been sued after the 1-year ticket period allowed for claims set forth. “

–as set forth in the ticket.

Then the rule tells us that you have this much time to serve, and then the complaint will — the — the amendment will relate back to the date of the original filing.

It doesn’t change your statement, your defense.

The 1-year statute of limitations isn’t affected.

What is affected is the complaint will relate back if there’s an amendment filed.

But the 1-year statute of limitations remains, and you didn’t bother to answer until the — that time had run.

Robert S. Glazier:

But if — if, during the 120-day period — you know, the Rule 15(c) happens to rely upon the measuring point, but service is not the crucial point.

Within that 120-day period, if the plaintiff had done anything, anything at all, to indicate that she had not sued Costa Crociere because of a mistake, then the complaint would have related back, a very easy case–

Ruth Bader Ginsburg:

Yes, but the relation back is different from the point at which the statute has run.

The statute runs after 1 year.

Then, if she does what the rules say, it can relate back to the date of the original filing.

The fact remains that you didn’t file your answer until after the limitation period had run.

Robert S. Glazier:

–Yes.

Yes, we did not file the answer.

They filed the lawsuit on the eve of the–

Samuel A. Alito, Jr.:

Why does that even matter?

I’m not really sure I’m following this argument.

Let’s say that the answer was filed during the limitations period, and the lawyer — the plaintiff’s lawyer is a solo practitioner, and he or she is out of the office because the lawyer’s on a cruise–

[Laughter]

And by that time, the limitations period has run.

It’s still a mistake.

Robert S. Glazier:

–If–

Samuel A. Alito, Jr.:

Where do you see in — the question on which cert was granted has to do with imputed knowledge.

Where do you see in the text of this rule anything that picks up the concept of either imputed knowledge or actual knowledge?

It just talks about a mistake.

Robert S. Glazier:

–We do not rely at all upon imputed knowledge.

The Court granted review, but we don’t think there is imputed knowledge here.

Samuel A. Alito, Jr.:

Well, where — just — where do you — where in the rule is there anything that relates to the reasonableness of the mistake?

What if it is the most foolish, negligent mistake you can possibly imagine?

Is it not still a mistake?

Robert S. Glazier:

The rule contemplates by its structure that the mistake will be the cause of the reason why the — the plaintiff did not sue the parties.

Sonia Sotomayor:

That’s not what the rule says.

The rule doesn’t talk about what kind of mistake or why.

The rule says what the defendant should have known.

And so, when you read this complaint, it’s very clear you know you’re the carrier.

Robert S. Glazier:

Yes.

Sonia Sotomayor:

You know cruise — the other line, the sales agent, can’t be the carrier, correct?

Robert S. Glazier:

We–

Sonia Sotomayor:

So it’s either a factual or a legal mistake.

There is no other way to read that other than that there is a mistake.

Robert S. Glazier:

–And then–

Sonia Sotomayor:

Because — then have you to answer Justice Breyer’s question, which is: What conceivable reason that is not either negligence or unintentional or inadvertent or just plain stupidity, however you want to define it, that someone who is injured would want to name a party who wasn’t responsible for the injury?

Robert S. Glazier:

–The most powerful evidence is simply when they were informed of the claimed mistake, they did nothing for 95 days to indicate in any manner whatsoever that it was a mistake.

They had–

Samuel A. Alito, Jr.:

Well, that’s evidence from which the absence of a mistake might be inferred.

I agree with that, but that doesn’t establish that it wasn’t — it wasn’t a mistake.

Robert S. Glazier:

–Well, this — whether something is a mistake ultimately is a factual issue.

There’s a legal question of whether a plaintiff’s knowledge of the identity of a proper party can preclude a finding of mistake.

But once we get past that–

Sonia Sotomayor:

But, counsel, don’t — what you’re really talking about is whether once the answer was filed, they were dilatory in making their motion.

I don’t understand how you can argue that the day you received this complaint, you didn’t understand that some sort of mistake had been made.

The day that the answer came in, you might start to have a doubt because of their delay in the motion to amend, but doesn’t that go to a 15(a) question, whether the judge should have given leave to amend because of dilatory tactics?

Isn’t that a 15(a) question, not a 15(c) question?

Robert S. Glazier:

–Well, delay in moving to amend via 15(a).

But 15(c) requires the judge to determine whether there was a mistake.

And here, in essence, we have a test case: Well, the plaintiff is claiming that the reason why she did not sue Costa Crociere–

Sonia Sotomayor:

Is there anything in the face of the complaint that would suggest anything but a mistake?

Sonia Sotomayor:

Now, forget — I’m being very specific.

On the face of the complaint.

You read that.

Robert S. Glazier:

–Yes, I believe there is.

The complaint specifically makes clear that the plaintiff’s lawyer read the ticket.

Sonia Sotomayor:

Where does it say:

“I know that the carrier is Costa Crociere? “

Where does it say that?

Robert S. Glazier:

The complaint certainly does not say that.

What–

Sonia Sotomayor:

What the complaint says is that Costa Cruise, the operator of the vessel, injured me, correct?

Robert S. Glazier:

–It says that the–

Sonia Sotomayor:

And is that an accurate statement of fact?

Robert S. Glazier:

–That — it’s not an accurate statement of fact.

Sonia Sotomayor:

So–

John G. Roberts, Jr.:

No, I would have said the previous paragraph, 9, says:

“The plaintiff has complied with all the pre-suit requirements of the passenger ticket. “

So you know they read the ticket.

Robert S. Glazier:

Right.

And in the paragraph before, venue is proper in Broward County; defendant’s passenger ticket contains a forum selection.

So we know when Costa — Costa Cruise Lines, or Costa Crociere learns of this, we know that the plaintiff decided–

John G. Roberts, Jr.:

Now, which is it?

Is that a Freudian slip?

[Laughter]

Robert S. Glazier:

–No.

No, because we’re — because we’re not disputing–

John G. Roberts, Jr.:

Just a mistake.

[Laughter]

Robert S. Glazier:

–We’re not — we are not disputing the notice issue.

What — what is clear is they have read the ticket, and despite that–

John Paul Stevens:

Despite that, they made a mistake.

Robert S. Glazier:

–they have decided to sue Costa Cruise Lines.

John Paul Stevens:

They made a mistake, right?

They read the ticket, and despite that, they made a mistake.

Robert S. Glazier:

No.

John Paul Stevens:

What?

Robert S. Glazier:

We don’t think so.

John Paul Stevens:

Why isn’t — why doesn’t the rule cover it?

Robert S. Glazier:

But, again, if we move past–

Antonin Scalia:

I object to your relying upon the — the answer as — as establishing compliance with (C)(ii), because (C), in the prologue, says

“is satisfied, if within the period provided by Rule 4(m). “

And there is at least some point within that period before the answer was filed.

And if, within that period before the answer, you knew or should have known that it was a mistake, it seems to me you lose.

Do you understand what I’m saying?

Robert S. Glazier:

–I understand what you’re saying, but there’s nothing in — just the point–

Antonin Scalia:

And the — the only thing you could rely on for that short period before the answer is filed is simply the ticket, right?

Robert S. Glazier:

–There’s nothing in the rule — the ticket and the complaint — there’s nothing in the rule that says that only events up to point of the running of the limitations period or the service of the answer are relevant.

It is throughout the certain — within the period–

Antonin Scalia:

Well, you are reading “within the period” to mean “throughout the period”.

It doesn’t say “throughout the period”.

It says “if within the period”.

Robert S. Glazier:

–Well, the district court, which is serving as the fact-finder there, looked at all the evidence.

And the powerful evidence is the service of the answer, which identifies the party–

Antonin Scalia:

I think it’s an important issue with respect to the statute.

I don’t think we can treat cavalierly whether “within the period” means “throughout the period”.

That’s one of the issues here.

Anthony M. Kennedy:

I have one — one question about the face of the ticket, the one with the picture on it.

Is it Costa Cruise or Costa Crociere that got this big award for B.E.S.T. 4> [“]?

Robert S. Glazier:

–I — I don’t know the answer to that.

Anthony M. Kennedy:

Pardon me.

Robert S. Glazier:

I don’t know the answer at this time.

Anthony M. Kennedy:

I — I make the assumption that it’s the cruise line, Crociere, that got the award.

So the ticket itself confuses the two companies.

Is that a mistake, incidentally?

[Laughter]

If I am right, is that a mistake?

Robert S. Glazier:

I — Your Honor — clearly, as you said, Costa Crociere is the vessel operator.

The ticket makes it clear on the next page, the very next page–

Anthony M. Kennedy:

How many — if you have a 1,000-page ticket, how many pages do you have to read?

Robert S. Glazier:

–Here, you only have to read one.

Anthony M. Kennedy:

But this is the first one.

Robert S. Glazier:

Well, this is–

Anthony M. Kennedy:

The one I pointed out to you with the mistake, that’s the first one.

Robert S. Glazier:

–It’s — it’s on the cover.

The ticketing agent here, Costa Cruise Lines, adds the cover.

The first page of the provisions say Costa Crociere is the — is the vessel operator.

But, again, if one looks at the answer, there’s no response.

No response, and then a motion for summary judgment.

Still nothing.

If the plaintiff had merely said in an e-mail or a phone call, hey, I made a mistake, then it would be clear.

An easy case.

But they did not act despite being informed.

Despite being informed in the answer of the identity of the proper party and in the motion for summary judgment.

The trial court, serving as the trier of fact here on this issue, had to make that decision.

Maybe the court with another–

John Paul Stevens:

I’m still puzzled, because Rule (C) just requires — describes the state of mind of the defendant, correct?

C(i) and (ii); isn’t that right?

Robert S. Glazier:

–Yes.

John Paul Stevens:

And is it not true that under (i), the defendant did receive such notice of the action, would not be prejudiced?

That’s clear, isn’t it?

Robert S. Glazier:

Yes.

John Paul Stevens:

And is it also true that at the time they received the complaint, they knew or should have known that the action would have been brought against the carrier instead of the broker?

Robert S. Glazier:

The answer–

John Paul Stevens:

I just don’t understand how you get around the plain language.

Robert S. Glazier:

–Our answer is no, and especially considering, within the events, they don’t show that there’s–

John Paul Stevens:

You don’t think — you don’t think that the agent didn’t realize that they would have sued the carrier if they had known the identity of the right party?

Robert S. Glazier:

–What is known is that they had the ticket.

They still decided–

John Paul Stevens:

I understand all that.

Robert S. Glazier:

–to sue Costa Cruise Lines–

John Paul Stevens:

But we’re talking about the — about mindset of the defendant, and to say that they wouldn’t have sued — they would have sued the broker instead of this carrier?

It’s absurd.

Robert S. Glazier:

–Well, the events played a role and demonstrated that even after the plaintiff was informed of the identity of the proper party, they continued to pursue the claim against the ticketing agent.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Bendure, you have 9 minutes remaining.

Mark R. Bendure:

Thank you, Mr. Chief Justice.

Obviously, from the questions, the Court has a good grasp of the facts and the issues in our arguments.

I’d just like to clarify a couple of factual points.

The district court ruling didn’t rely on the ticket at all.

What the district court said was: I adopt the legal premise that if you knew before the filing of — before the running of the statute of limitations but didn’t sue, that would not be a mistake.

And here, says the district court judge, they filed their answer after the statute of limitations, and that’s why you lose under a rule that requires that notice before the statute of limitations expires.

That was the district court rationale.

The circuit court was the one who relied upon the imputed knowledge notion that is now, I think, disavowed by Respondent himself.

With regard to the–

Antonin Scalia:

This is sort of an equitable rule, isn’t it, this mistake?

We’re going to, you know — equity takes account of such things.

It seems to me very reasonable to say: If the mistake is egregious, it doesn’t apply.

Mark R. Bendure:

–I think now one gets into a wonderful process of trying to identify mistakes on a scale of egregiousness.

Like, how many points of egregiousness would it take?

And I think that’s beyond the statute, or the court rule itself, which just uses the plain language “mistake”.

John G. Roberts, Jr.:

I would have thought your answer would have been: This has nothing to do with equity at all.

It’s just the interpretation of a legal rule.

Mark R. Bendure:

Certainly.

And the rule itself — I understood Justice Scalia’s point to be that the interpretation of the rule is designed to be liberal in its application to avoid the forfeiture of potentially meritorious causes of action over technical mistakes which have nothing to do with the merits.

I thought that was the sense in which you used the word “equitable”.

The other point I’d like to make, even though it’s, in my view, legally insignificant, is their argument regarding the nature of the delay.

Their motion for summary judgment was filed on May 6th.

Two days later, the court erroneously dismissed the lawsuit for a period of approximately a month.

It was then reinstated on June 5th, and our response, which sought relation back, was filed on June 13th.

So in addition to the scheduling order, there is a 1-month period of time in which the case was erroneously dismissed.

So if it were significant, we could say there’s not significant delay.

But the ultimate point is it’s legally beside the point.

If the Court has no further questions, I’ll–

Stephen G. Breyer:

This might be tangential, but is there a reason to suggest the Federal Maritime Commission look into this?

Because I read the regs.

I don’t understand quite what’s going on, because it seems to me they have a rule that is designed to prevent this situation.

Mark R. Bendure:

–It may well–

Stephen G. Breyer:

Is that true, what I’m suggesting or not?

You know the area better.

Mark R. Bendure:

–I don’t know.

I’m not a maritime lawyer, Your Honor.

But I think certainly if the Court’s opinion were to note it, the Maritime Commission might well take a hint from the opinion and look into it.

John G. Roberts, Jr.:

Thank you, counsel.

Mark R. Bendure:

Thank you.

John G. Roberts, Jr.:

The case is submitted.