Ada Freese v. Continental Airlines, Inc., No. 09-4249 (6th Cir. 2011)
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0070n.06 No. 09-4249 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 03, 2011 LEONARD GREEN, Clerk ADA M. FREESE, Plaintiff-Appellant, v. CONTINENTAL AIRLINES, INC., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO Defendant-Appellee. _________________________________/ BEFORE: SUHRHEINRICH, COLE and COOK, Circuit Judges. PER CURIAM. Plaintiff-Appellant Ada Freese suffered an injury aboard a commercial airline flight in 2007. Approximately one year later she sued Defendant-Appellee Continental Airlines, Inc. ( Continental ) on several negligence theories in Ohio state court. Continental removed the case to federal court on diversity grounds. After the statute of limitations expired, Continental moved for summary judgment, arguing that, because it neither owned nor operated the flight upon which Freese incurred her injury, she had named the wrong defendant. Freese opposed summary judgment and sought to amend her complaint pursuant to Fed. R. Civ. P. 15 in order to name a new party defendant, the actual owner and operator of the flight, ExpressJet. The district court granted summary judgment to Continental, agreeing that Continental was not the proper defendant because it was not Freese s common carrier. The district court also denied Freese s motion to amend as futile, concluding the amendment did not relate back under Rule 15(c). Freese appeals both orders. We AFFIRM in part and REMAND in part. We review de novo a district court s grant of summary judgment. Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). We have carefully reviewed the record, the applicable law, and the parties briefs. We agree with the district court that Continental was not Freese s common carrier and AFFIRM, adopting its well-reasoned and thorough opinion regarding Continental s motion for summary judgment dated July 23, 2009. With regard to Freese s motion to name ExpressJet as a new party defendant, the district court concluded that her motion did not relate back under Rule 15(c). In support of this conclusion the district court looked to Sixth Circuit precedent, see In re Kent Holland Die Casting & Plating, Inc., 928 F.2d 1448, 1449 (6th Cir. 1991), which precludes relation back when the plaintiff seeks to add a new defendant. The district court also determined that suing Continental rather than ExpressJet was not a mistake within the meaning of Rule 15(c), citing Moore v. Tennessee, 267 F. App x 450, 455-56 (6th Cir. 2008) for support. Since the district court s ruling, the Supreme Court addressed mistake and relation back under Rule 15(c). Krupski v. Costa Crociere S. p. A., U.S. , 130 S.Ct. 2485 (2010). Accordingly, we REMAND the denial of Freese s motion to amend to the district court for limited consideration in light of Krupski. -2-
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