Better Late Than Never: Effective Relation-back of Amended Complaint Not Limited to 63 Days

Author: Derek Long

Guest Editor: Tiffany Rouhi

January 7, 2019 9:00am

Plaintiffs often file complaints just barely within the time period allowed by law, often also without full knowledge of who the proper defendants are in any given case.  Justice would dictate that a defendant who is only named in a complaint that is amended after the running of the applicable statute of limitation should be out of jeopardy and entitled to their repose.  Unfortunately, this is not the case in Colorado.  Before 2013 Colorado courts generally allowed such amendments and service on defendants to be effective months after the running of the statute of limitations.

The defense bar had hope for change with the 2013 amendments to the Colorado Rules of Civil Procedure, which amended Rule 4 to limit the time for service to 63 days.  The defense bar could hope that Colorado courts would now set a 63-day limit to how long their clients would continue to be in legal jeopardy after the running of a given statute of limitation.

The Relation-Back Doctrine

C.R.C.P. 15 governs amended pleadings and whether a claim will “relate back” to the original filing date to be timely within the statute of limitation.  Rule 15(c) states that:

Whenever 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, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment: (1) Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

C.R.C.P. 15(c) (emphasis added).

The “period provided by law for commencing the action against him” of Rule 15(c) is the statute of limitation.  The Colorado Supreme Court previously held that Colorado adheres to the federal rule which permits relating-back of amended pleadings beyond the statute of limitations.  Dillingham v. Greeley Pub. Co., 701 P.2d 27, 32 (Colo. 1985).  Colorado adopted the federal interpretation of Rule 15(c) stating the newly named defendant must have notice of the lawsuit within a reasonable period of time after the filing of the original complaint, consistent with the judicial interpretation of the rule governing service of process under Rule 4 of the Rules of Civil Procedure.  Id. at 31-32; Garcia v. Schneider Energy Services, Inc., 2012 CO 62 (Colo. 2012).

Prior to 2013, Colorado generally adhered to the120-day period of F.R.C.P. 4(m) as the standard for what constituted a “reasonable period of time” for service.  See, Malm v. Villegas, 2015 CO 4, ¶ 11; Garcia, 2012 CO at ¶¶13-15.  Previous decisions of Colorado courts holding that up to 116 days were reasonable, such as in Garcia for example, were based on consideration that the federal version of Rule 4(m) permitted up to 120 days for service.  Malm, 2015 CO at ¶ 18; Garcia, 2012 CO at ¶ 16.  However, Colorado amended its Rule 4 in 2013 to further limit this period to 63 days.  Malm, 2015 CO at ¶ 11; C.R.C.P. 4(m) (added by amendment dated September 5, 2013).  ‘Where service after filing is, however, not actually accomplished until a statutory limitations period has passed, any delay in service beyond that “relatively short” initial period cannot be found reasonable simply because the plaintiff made diligent efforts to locate the defendant.’  Malm, 2015 CO 4 at ¶ 19.  The Colorado Supreme Court noted in Malm, delaying service beyond a limited time after the running of a statute of limitation was prejudicial to a defendant by “defeat of his right to repose, being exposed as he would then be to surprise litigation long after the statutory limitations period has run.”  Id. at ¶ 16.  Therefore, it would seem to be a reasonable assumption under Colorado law that in order for an amended pleading to properly relate back when joining a new defendant after the running of the statutes of limitation, the newly named defendant must have notice of the lawsuit within 63 days of the filing of the original complaint, unless the plaintiff can show some extraordinary excuse for the delay.

The Colorado Court of Appeals Says “Not So Fast”

Hope for firm 63-day limit was dashed recently in Taylor v. HCA-HealthONE LLC, 2018 COA 29.  The Colorado Supreme Court in Malm left open the question of whether the new 2013 Rule 4 set a firm 63-day limit to service after running of the statute of limitations.  The Court in Malm was faced with a set of facts where the defendant was not served for more than seven years, and did not need to decide the issue of whether 63 days was the hard limit.  The Court of Appeals in Taylor declined to adopt such an interpretation.  The Court of Appeals noted that in Garcia the Colorado Supreme Court held 116 days was a reasonable period, so the Court of Appeals reasoned that more than 63 days must also be reasonable.  This reasoning does not take into account that in 2012, when Garcia was heard, Colorado still generally held to the 120-day limit for service of the federal Rule 4, even though the Colorado Supreme Court expressly mentioned this fact in Malm.  This was altered by the 2013 amendments to the Colorado Rules of Civil Procedure but was not acknowledged by the Court of Appeals in Taylor.  The parties did not brief this distinction and the history of the 2013 amendments, and the Court of Appeals declined to take note of it.  Whether this distinction will be argued successfully in some future case is yet to be determined.


Colorado courts appear unwilling to set a reasonable limit on naming defendants to lawsuits well past the time permitted by law.  The effect of Taylor is a return to an ambiguous “reasonable period” for service on defendants after the running of a statute of limitation.  Potential defendants and their insurers once again will be left guessing if a plaintiff will amend a complaint and serve them, perhaps four months or longer after the statute has run.  There may be a future appeal in which this issue is reconsidered by the Court of Appeals, or resolved by the Colorado Supreme Court.  At present the 63-day limit for service in Rule 4 cannot be considered a hard limit.  Given these developments, we recommend clients and their insurers keep claim files open and preserve all documents and other evidence for at least six months after the running of the applicable statute of limitations, if not longer.

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