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Florida Fourth DCA rules that third-party defendant voluntarily dismissed from action could not be added as defendant after expiration of statute of limitations

On March 15, 2017, in McCray v. Bellsouth Telecommunications, No. 4D16-1073, the Florida Fourth District Court of Appeal affirmed the trial court’s denial of plaintiff’s motion to amend a complaint to add a defendant because the statute of limitations had already expired. The potential defendant had been a third-party defendant in the case, but the party defendant had voluntarily dismissed the third-party complaint. Citing Federal Ins. Co. v. Fatolitis, 478 So. 2d 106 (Fla. 2d DCA 1985) and Biggers v. Town of Davie, 674 So. 2d 938, 939 (Fla. 4th DCA 1996), the Fourth DCA ruled that the voluntary dismissal divested the trial court of jurisdiction over the third-party defendant and the third-party defendant could not be added to the plaintiff’s complaint because the statute of limitations had expired. The Fourth DCA distinguished Caduceus Properties, LLC v. Graney, 137 So. 3d 987 (Fla. 2014), in which the Florida Supreme Court had applied the relation back doctrine to permit an amended claim, on the basis that in Caduceus the third-party complaint was dismissed after the third-party defendant was named as a defendant in the plaintiff’s amended complaint.