Second Circuit Discusses Relation-Back Doctrine; Determines Appropriate Standard is De Novo
Per Slayton v. American Express Co., 460 F.3d 215 (2nd Cir. Aug. 7, 2006):
A dismissal with leave to amend is a non-final order and not appealable. Connecticut Nat'l Bank v. Fluor Corp., 808 F.2d 957, 960 (2d Cir.1987); Blanco v. United States, 775 F.2d 53, 56 (2d Cir.1985); Elfenbein v. Gulf & Western Indus., Inc., 590 F.2d 445, 448 (2d Cir.1978). However, an appellant can render such a non-final order "final" and appealable by disclaiming any intent to amend. Kittay v. Kornstein, 230 F.3d 531, 541 n. 8 (2d Cir.2000). The judgment from which the notice of appeal was filed was non-final but would become final when the plaintiffs disclaimed their intent to amend the complaint.
Many of our relevant decisions do not discuss the standard of review of district court decisions under Rule 15(c)(2). See e.g., Stevelman v. Alias Research Inc., 174 F.3d 79 (2d Cir.1999); Siegel v. Converters Transportation, Inc., 714 F.2d 213, 216 (2d Cir.1983); see also Tiller v. Atlantic Coast Line R.R., 323 U.S. 574, 581, 65 S.Ct. 421, 89 L.Ed. 465 (1945). However, those decisions that do address the standard of review hold it to be abuse of discretion. Tho Dinh Tran v. Alphonse Hotel Corp., 281 F.3d 23, 35-36 (2d Cir.2002). The use of the abuse of discretion standard may have resulted from applying the standard of review for denials of leave to amend under Rule 15(a) [FN10] to cases arising under Rule 15(c)(2). Another source of confusion about the proper standard of review of Rule 15(c)(2) decisions is that some courts have a different standard of review for these than for decisions under Rule 15(c)(3). [A] relation back decision under Rule 15(c)(2) does not involve an exercise of discretion. A court reviewing a Rule 15(c)(2) decision performs a function analogous to that performed by an appellate court reviewing a dismissal for failure to state a claim under Rule 12(b)(6). In our view, the relation back issue is more analogous to a dismissal on the pleadings than a balancing of factors involving the conduct of a lawsuit. If facts provable under the amended complaint arose out of the conduct alleged in the original complaint, relation back is mandatory. The proper standard of review of Rule 15(c)(2) decisions is therefore de novo and we so hold.