Saturday, June 09, 2007
Plaintiff loses auto accident case because she did not serve already deceased defendant in time. Two Justices also recommend cleaning up the civil procedure code on amending pleadings. Plaintiff in an auto accident case sued the defendant only a few months before the normal statute of limitations would have run. Plaintiffs counsel attempted service a number of times and shortly before the six month service deadline (25-217 RRS Neb)learned the defendant had passed away over year before they filed suit. Plaintiff served the defendant's son who was the decedent's administrator but did not attempt to amend the suit to name the personal representative defendant until her six month service deadline had run. Supreme Court agrees that any attempt to relate the amendment back to the suit filing date was void because there is no case after 25-217 caused the case to be dismissed. In concurring opinion, Justices Lerman and McCormack argue that the legislature should amend 25-201.02 to make the state version of FRCP 15 current with the federal version, which was amended in 1991 and then allowed relation back only if done within a time before the statute of limitations had run with the new defendant aware of the pending action. Reid v. Evans, S-05-1503"Because Reid’s lawsuit had been dismissed, her subsequent motion to amend and take advantage of relation back was a nullity, as would have been any order entered by the county court on that motion. Once Reid’s lawsuit had been dismissed, the county court lacked jurisdiction to make any further orders other than to formalize the dismissal. See id. The district court did not err in determining that the county court lacked jurisdiction to consider Reid’s motion to amend, and we affirm the district court’s decision. Concurring opinion: If the Legislature was to revise § 25-201.02 to provide language similar to the current version of rule 15(c) of the Federal Rules of Civil Procedure, a plaintiff seeking to amend and take advantage of relation back who files a motion after the statute of limitations has run but during the period allowed for service, and who otherwise meets statutory requirements, would be able to amend the complaint. Revisions to § 25-201.02 could marginally enhance the utility of statutory relation back in Nebraska.