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West v. Buchanan6/11/1999
rmer v. State, relying upon language from the United States Supreme Court's opinion in Schiavone v. Fortune, we stated that the relation back question was whether the defendant received notice within the limitations period.
"Relation back is dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period."[ ]
We have never disavowed our reliance on Schiavone's equation of the statutory limitations period with the language "the period provided by law for commencing the action." Indeed, Siemion approvingly cites Schiavone and quotes the same language we quoted in Farmer.
It seems unlikely the court in Siemion intended to hold that the time for commencing suit is enlarged by the service grace period, given that it did not cite Rule 4(j) or discuss the service grace period.
E. Schiavone v. Fortune
Because Federal Rule of Civil Procedure 15(c) was, until its amendment in 1991, identical to our Rule 15(c), federal interpretation of the unamended federal rule provides useful guidance. Until 1986, there was a dispute in the federal courts concerning the meaning of Rule 15(c)'s qualifying language -- that notice must have been received "within the period provided by law for commencing the action."
"Some courts ruled that notice had to be received before the statute of limitations had run. To rule otherwise arguably would have deprived the new party of the right to invoke the statute of limitations defense and that might raise a question of procedural due process. Other courts noted that the rule was satisfied as long as the action was filed within the statutory period and notice was accomplished within the time allowed for service of process."[ ]
That dispute, however, was resolved when the Supreme Court decided Schiavone v. Fortune. As explained in a leading treatise:
"Justice Blackmun, writing for the majority, concluded that notice must be received within the statute of limitations and it is not sufficient to find that notice is given within the time for service. This Conclusion, he noted, was required by the "plain language" of Rule 15(c). Further, he acknowledged"
". . . there is an element of arbitrariness here, but that is a characteristic of any limitations period. And it is an arbitrariness imposed by the legislature and not by the judicial process."[ ]
The result reached in Schiavone was criticized by commentators. Nonetheless, the federal courts, including the Supreme Court, adhered to Schiavone's reading of Federal Civil Rule 15(c) prior to its amendment. We also approvingly quoted from Schiavone in Farmer and Siemion. Our court today disagrees with the six-Justice majority in Schiavone. In interpreting our rules, we are certainly not bound by the federal courts' interpretations of their rules. But because the plain language which convinced the Supreme Court is also found in our rule, I would place significant weight on that Court's reasoned result.
Nonetheless our opinion today does invoke the federal experience in another way. In interpreting Alaska Civil Rule 15(c), our opinion relies on the post-Schiavone amendment of Federal Civil Rule 15(c). The 1991 amendment rewrote the federal rule to permit the result
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