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Estate pf Kuhns v. Marco5/10/2000
ed petition cannot relate back to the original date of filing.
Plaintiffs argue, in the alternative, if rule 69(e) does apply, the recent amendment to rule 49(f) would permit their amended petition to relate back to the date of the original filing. Before the amendment, rule 49(f) did not provide for a specific time period in which to serve defendants with original notice, although case law required dismissal of an action if there was an "abusive delay" in completing service. See Alvarez v. Meadow Lane Mall Ltd. Partnership, 560 N.W.2d 588, 591 (Iowa 1997). Effective January 24, 1998, rule 49(f) imposes a ninety-day time limit after the date of filing within which to serve an original notice on defendants. See Iowa R. Civ. P. 49(f).
Because of this change, plaintiffs encourage us to adopt the standard used by the federal courts in Federal Rule of Civil Procedure 15(c) and extend the time for serving notice of amendments to pleadings within the time limit for service of process delineated by the rules of civil procedure. Rule 15(c) provides, in relevant part:
An amendment of a pleading relates back to the date of the original pleading when . . . (3) the amendment changes the party or the naming of the party against whom a claim is asserted if . . . within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits . . . .
Fed. R. Civ. P. 15(c)(3)(A). Rule 4(m) allows plaintiffs 120 days to serve defendants with notice of the complaint. Fed. R. Civ. P. 4(m). This court has declined to follow the federal relation-back standard in the past. See Butler, 547 N.W.2d at 20. Plaintiffs argue the Butler court was looking for the direction provided by the amendment to rule 49(f) to conform the Iowa standard to the Federal standard. However, plaintiffs overlook an important distinction between our rule 69(e) and the Federal Rule 15(c). Rule 15(c) specifically mentions rule 4(m) and states notice must be served within the period for service of the summons and complaint. Rule 69(e) states notice must be given within the period provided by law for commencing the action against the party. Rule 69(e) clearly and unmistakably requires notice of the amendment to be received within the statute of limitations period if the proponent of the amendment wishes it to relate back to the date of the original filing. Even after the amendment of rule 49, rule 69(e) does not include language extending the limitations period to include the time allowed to accomplish service of process as in Federal Rule 15(c).
We cannot extend the relation-back principle within rule 69(e) in a manner that is not authorized by the clear language of the rule. "We must accept the governing rules as they exist when we decide cases and interpret rules, like we do statutes, in a sensible, workable, practical, and logical manner." Butler, 547 N.W.2d at 20 (citing State v. Deierling, 406 N.W.2d 793, 794 (Iowa 1987)). Although we subscribe to the notion symmetry between Federal and Iowa rules of civil procedure should be promoted, our task is not to create rules, but to interpret them. Butler, 547 N.W.2d at 20. Marco did not receive notice of the amended petition within the period provided by law for commencing the action; and the statute of limitations period expired. Therefore, the amended petition does not relate back to the date of the original filing under the existing rules. Accordingly, we affirm the judgment of the district court.
V. Conclusion. We have considered all remaining arguments presented by
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