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West v. Buchanan6/11/1999
er, engrafts the service grace period onto the limitations period to make timely an amended complaint that was not timely. Thus, it fails to distinguish between commencing an action and serving process.
The opinion also fails to distinguish between Bembry and Buchanan. It assumes that what is fair for Bembry (who could be served after the limitations period had run) is also fair for Buchanan. But their situations must be distinguished. Bembry was named in a timely complaint and Buchanan was not. Rule 4(j) has only one possible application to Buchanan: it required that she be served within 120 days after the amended complaint was filed. Moreover, we should not necessarily assume that Bembry and Buchanan must be treated identically when applying the service grace period. If Buchanan had gone to the courthouse on the second anniversary of the accident and asked if she was a defendant in a lawsuit, she would have learned that she was not. She was thus not in the position of a defendant who was timely sued but not yet served. This distinction may not be conclusive, and does not preclude amending the rule; but it certainly justifies applying the rule as written absent any amendment.
The opinion states that "to say that Bembry received timely and adequate notice but Buchanan did not would seem little more than senseless formalism." But the distinction the opinion rejects is embedded in our rule, and we should observe it. The opinion asserts that Rule 15(c) is "not a model of clarity." Perhaps so, but it is sufficiently clear that we should apply it as written.
The second problem inevitably follows. The opinion changes the substantive law which governs the time for commencing an action. Even assuming Rule 4(j) purported to add 120 days to "the period provided by law for commencing" an action, it would necessarily extend every limitations period by 120 days as long as notice were received during that 120-day period. We should avoid such a substantive effect of a procedural rule. I read the words "provided by law" to refer to substantive law, not mere procedure. Our rule-making power does not give us authority to specify the time for commencing suit; that is for the legislature. We sometimes decide whether substantive court-made "law" delays or tolls the running of the statutory limitations period adopted by the legislature, but that is not what we are doing here.
D. Our Prior Decisions
In my view, our decision in Adkins v. Nabors Alaska Drilling, Inc., controls. There we rejected Adkins's attempt to amend his complaint to add Nabors after the statute of limitations had run. The court distinguishes Adkins from this case on the theory that Nabors did not receive notice of the suit until after the service period had expired. But that distinction ignores the rationale that governed Adkins: that the critical language in Rule 15(c) -- "the period provided by law for commencing the action" -- refers to the "limitations period." That rationale was not mere dictum, but controlled the result.
The court looks to Siemion v. Rumfelt, to support its holding. In Siemion, we permitted an amended complaint to relate back when the newly-named defendant, Jeffrey, "had notice of the institution of the suit within the same time he would have known had he been a properly named defendant." Because Rule 4(j) contemplates the possibility a properly named defendant will not receive notice of an action until 120 days after the statute of limitations expires, the court reads Siemion to support its holding here. But Jeffrey in fact had constructive notice within the applicable period of limitations, and Siemion cited Adkins with approval.
Moreover, in Fa
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