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Law School Case Brief

Everett v. Cherry - 671 F. Supp. 2d 819 (E.D. Va. 2009)


Virginia law assigns a two-year statute of limitations to personal injury and wrongful death causes of action. A court properly denies leave to amend a complaint, if the statute of limitations has run and the amended complaint does not relate back to the filing of the initial complaint.


Plaintiff June Everett, who was the personal representative of deceased Sandra Kenley, originally filed this case in state court on December 14, 2007. This complaint alleged that the defendants Roy Cherry, et al. were responsible for Kenley’s death resulting from inadequate medical care while incarcerated at the Pamunkey Regional Jail and the Hampton Roads Regional Jail. The complaint alleged a wrongful death cause of action, pursuant to Va. Code § 8.01-244, and a cause of action for violation of Kenley's rights under the Eighth and Fourteenth Amendments of the United States Constitution, pursuant to 42 U.S.C. § 1983. On July 24, 2009, plaintiff filed a Motion for Leave to File an Amended Complaint to add Prison Health Services as a defendant, on the ground that it had also provided Kenley with inadequate medical treatment.


Should the plaintiff be allowed leave to amend the complaint?




The magistrate judge's order denying plaintiff leave the amend the complaint was affirmed by the district court. Since the Personal representative failed to file a cause of action against the company within the specified time period, in order to amend the complaint and add the company as a party defendant, the cause of action against it had to relate back to the original filing of the lawsuit. The company did not receive notice of the original complaint such that it would not be prejudiced in maintaining a defense. In the first three and a half years following the inmate's death, the personal representative, at no point, served the company with any notice of a potential cause of action against it. Considering the evidence in the personal representative's possession, that failure was inexcusable.

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