Mushkin, Inc. v. Anza Technology, Inc.

Fed. R. Civ. P. 15(c)(1)(B) states that an amended pleading will “relate back” to the date of an original pleading if the amended pleading “asserts a claim or defense that arose out of the conduct, transaction or occurrence set out – or attempted to be set out – in the original pleading.” This Petition should be granted to address the following questions:

1. Whether the appropriate standard of review for a “relation back” determination under Fed. R. Civ. P. 15(c) is: (1) the de novo standard of review applied by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuit Courts of Appeal,

2. the abuse of discretion standard of review applied by the Eighth, Eleventh, and District of Columbia Circuit Court of Appeals, with Eighth and Eleventh Circuits applying a clear error standard of review for factual findings, (3) the de novo standard of review applied by the Federal Circuit Court of Appeals in the present case, with fact findings reviewed for clear error, or, (4) the clear error standard of review supported by this Court’s recent precedent, U.S. Bank v. Village at Lakeridge, for appellate review of case-specific factual determinations made by a district court?

3. What is the proper test for a “relation back” determination under Fed. R. Civ. P. 15(c)(1)(B) in light of the 1991 and 1993 Amendment to Rule 15(c), which eliminated the notice requirements from the