The Proper Way To Amend Pursuant To The “90 Day Rule”
posted on January 18th, 2008 in Comparative Joinder by clintIn Jones v. Prof. Motor. Esc. Serv., 193 S.W.3d 564 (Tenn.2006), the Supreme Court teaches us the proper way to add defendants under the “90 Day Rule.” In Jones, the Plaintiff filed a complaint alleging negligence against a Defendant Jones. Defendant Jones filed an answer alleging fault of two non-parties. On February 11, 2004, Plaintiff filed an amended complaint naming these two additional parties pursuant to the “90 Day Rule.” She did not file a motion to amend. Service of process on both new defendants was accomplished. One day later, the Plaintiff filed a motion to amend her original complaint to include the new defendants. On February 20, 2004, the trial court grants the Plaintiff’s motion to amend. The Plaintiff did not thereafter re-file her amended complaint. On March 1, 2004, the ninety-day period for the Plaintiff to add the new defendants expired. The new defendants filed a motion to dismiss the Plaintiff’s amended complaint as time-barred. The Supreme Court held that the Plaintiff’s one-day delay in filing a motion to amend complaint was not fatal under the “90 Day Rule,” where an amended complaint was filed, service of process on the added defendants was obtained, and leave to amend was granted within 90-day time frame required by statute. The “90 Day Rule” requires four discrete actions within ninety days: (1) the filing and (2) granting of a motion to amend, (3) the filing of an amended complaint, and (4) the issuance of process. Always attach a copy of the proposed amendment to the motion so that it becomes part of the record, regardless of what action the trial court takes on it.