Davis v. Ridder , 309 Neb. 865 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/20/2021 12:09 AM CDT
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DAVIS v. RIDDER
Cite as 309 Neb. 865Bettye Davis, appellant, v.
Thomas Ridder, appellee.
___ N.W.2d ___
Filed August 6, 2021. No. S-20-545.
1. Summary Judgment: Appeal and Error. An appellate court reviews
a grant of summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reasonable infer-
ences in that party’s favor.
2. ____: ____. An appellate court affirms a grant of summary judgment if
the pleadings and admitted evidence show that there is no genuine issue
as to any material facts or as to the ultimate inferences that may be
drawn from the facts and that the moving party is entitled to judgment
as a matter of law.
3. Actions: Pleadings: Parties: Notice: Limitations of Actions. The rela-
tion of an amended pleading back to the original filing is dependent
upon four requirements: (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 main-
taining 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.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Ken A. Winjum for appellant.
Michael T. Gibbons and Raymond E. Walden, of Woodke &
Gibbons, P.C., L.L.O., for appellee.
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DAVIS v. RIDDER
Cite as 309 Neb. 865Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Bettye Davis filed a lawsuit against Thomas Ridder alleg-
ing that after he negligently failed to put his vehicle in park
and entered a gas station, the vehicle rolled away, struck her
vehicle, and injured her. Davis filed this lawsuit just before the
statute of limitations expired, but soon thereafter, she discov-
ered a problem: Ridder was the owner of the vehicle that struck
hers, but someone else, Donald N. Limpach, Jr., was operat-
ing the vehicle just before it rolled away. Davis responded by
filing an amended complaint. This time, she sued Ridder and
Limpach, alleging that Limpach negligently failed to put the
vehicle in park and that Ridder negligently failed to maintain
it. The district court, however, found that both defendants were
entitled to summary judgment. The district court determined
that Limpach was entitled to summary judgment on statute of
limitations grounds, because the evidence would not permit a
finding that Davis’ claim against him related back to the date
of the initial complaint under Neb. Rev. Stat. § 25-201.02(2)
(Reissue 2016). The district court determined that Ridder was
entitled to summary judgment because Davis failed to submit
evidence that he negligently maintained the vehicle. We agree
that both defendants were entitled to summary judgment and
therefore affirm.
BACKGROUND
Accident.
On March 25, 2014, Davis was injured when her vehicle
was struck by an unoccupied Dodge Neon (the Neon). After
Limpach had parked the Neon at a gas station and gone inside,
the Neon rolled downhill into the street, coasted over a median,
and collided with Davis’ vehicle.
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DAVIS v. RIDDER
Cite as 309 Neb. 865Complaint and Amended Complaint.
On March 15, 2018, Davis filed a lawsuit against Ridder.
She alleged that Ridder negligently failed to place the Neon in
park and that she had been injured as a result.
On April 11, 2018, Davis filed an amended complaint, nam-
ing Ridder and Limpach as defendants. The amended complaint
alleged that Ridder owned the Neon, but that Limpach, rather
than Ridder, parked the Neon at the gas station and negligently
failed to place it in park. Ridder was still named as a defendant
in the amended complaint. It alleged that Ridder negligently
failed to maintain the Neon.
Limpach’s Motion to Dismiss.
Soon thereafter, Limpach moved to dismiss, contending that
the claim against him was barred by the governing 4-year stat-
ute of limitations. See Neb. Rev. Stat. § 25-207 (Reissue 2016).
In support of the motion to dismiss, he offered affidavits of
Ridder and himself.
Ridder stated in his affidavit that he learned about the law-
suit on March 19, 2018, when a representative of his insurer
contacted Ridder and told him that he had been sued regarding
an accident on March 25, 2014, involving a car he owned at
the time. Ridder stated that at that time, he did not discuss the
specific allegations of the complaint and was not told the com-
plaint alleged that he was the driver at the time of the accident.
Ridder also stated that he received a copy of the complaint on
March 24, 2018, and that he saw he was named as the only
defendant in the lawsuit, but that he did not read the part of
the complaint alleging that he was the driver at the time of the
accident. He stated that on April 2, he learned for the first time
that the complaint incorrectly named him as the driver at the
time of the accident. Finally, Ridder stated in his affidavit that
sometime between April 10 and 12, he learned Davis intended
to file an amended complaint naming Limpach as a defendant,
and that, at the request of the insurance representative, he con-
tacted Limpach to pass on that information.
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Cite as 309 Neb. 865Limpach stated in his affidavit that between April 10 and 12,
2018, he spoke by phone with Ridder, the insurance representa-
tive, and the attorney retained to defend Ridder, each of whom
told him that Davis either had filed or was going to file an
amended complaint against him. Limpach stated that “[d]uring
one or more of those calls,” he was told for the first time that
the original complaint named Ridder as the driver of the Neon
at the time of the accident, but that the amended complaint
would allege that he was the driver.
The district court granted the motion to dismiss. In its order,
it explained that Limpach’s statute of limitations argument
depended on whether Davis’ claim against him related back
to the filing of the initial complaint under § 25-201.02(2). It
concluded that Davis failed to allege facts indicating that, prior
to the expiration of the statute of limitations period, Limpach
was either aware of the lawsuit or knew or should have known
that, but for a mistake regarding his identity, Davis would have
sued him. Consequently, the district court found that the claim
against Limpach did not relate back under § 25-201.02(2). The
district court also denied Davis leave to amend the complaint.
It considered the affidavits offered by Limpach and other evi-
dence offered by Davis and determined that any amendment
would be futile.
Summary Judgment.
Sometime later, Ridder moved for summary judgment.
Davis opposed Ridder’s motion for summary judgment and
also asked the district court to reconsider its order dismissing
Limpach. In Davis’ motion asking the district court to recon-
sider its order dismissing Limpach, she stated that deposition
testimony from Limpach indicated that he was aware of the
lawsuit before the statute of limitations expired.
Depositions of Ridder and Limpach were received at a hear-
ing on Ridder’s motion for summary judgment and Davis’
motion to reconsider the dismissal of Limpach. Ridder testified
in his deposition that after he learned he had been sued, he
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DAVIS v. RIDDER
Cite as 309 Neb. 865did not initially talk to Limpach because his attorney instructed
him not to. He testified that by the time he spoke to Limpach
about the lawsuit, Limpach already knew about it. Ridder testi-
fied this conversation probably did not take place until April
12 or 13, 2018.
Limpach was also asked in his deposition about when he
learned about Davis’ lawsuit. Contrary to Ridder’s testimony,
Limpach testified that he “possibly” spoke with Ridder “shortly
after” Ridder learned of the suit. Limpach also testified that
Ridder first informed him that he had been sued regarding the
accident and that later, Limpach learned he was going to be
named. Limpach also testified that after the accident, he talked
to Ridder about whether Ridder’s insurance would provide
coverage for the accident.
Ridder and Limpach also testified in their depositions about
the Neon and the accident. Ridder testified that he purchased
the Neon and that Limpach’s automobile repair company per-
formed maintenance on it. Ridder explained that Limpach was
using the Neon to run an errand for him on the day of the
accident. According to Ridder, there was no evidence of any
mechanical issues with the Neon’s transmission prior to the
accident. He did acknowledge that sometime before the acci-
dent, Limpach’s repair company had replaced the clutch on
the Neon because it had been “slipping.” Ridder testified that
the Neon was a reliable car, that he drove it both before and
after the accident, and that after the accident, it performed as
it had before.
Limpach testified that at the gas station, he turned off the
Neon’s engine, put the gear into reverse to keep it from roll-
ing, filled the tank, and went inside the gas station. He was not
outside when the Neon rolled away. Limpach testified that the
Neon’s gear was not defective. When asked if he had a theory
on why the Neon rolled away from the gas station, Limpach
acknowledged the possibility that he might not have put the
Neon “all the way in reverse.”
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DAVIS v. RIDDER
Cite as 309 Neb. 865The district court entered an order granting Ridder’s motion
for summary judgment and denying Davis’ motion to recon-
sider the district court’s dismissal of Limpach. The district
court concluded that Davis did not present evidence to estab-
lish a genuine issue of material fact as to whether Ridder prop-
erly maintained the Neon.
As for Davis’ motion to reconsider, the district court
acknowledged that after Limpach initially moved to dismiss
and the district court received evidence outside the pleadings,
it should have informed the parties that the motion to dismiss
would be converted to a motion for summary judgment. The
district court went on to reconsider its earlier order dismiss-
ing Limpach with the additional evidence offered on Davis’
motion to reconsider. The district court found that Limpach
was entitled to summary judgment on statute of limitations
grounds and therefore overruled the motion to reconsider. It
concluded that the claim against Limpach did not relate back
to the filing of the initial complaint because there was no evi-
dence that Limpach knew about the lawsuit or that the “wrong
party was being sued” until after the statute of limitations
period had expired.
Davis appeals.
ASSIGNMENTS OF ERROR
Davis assigns three errors on appeal. She contends that
the district court erred by (1) granting Limpach’s motion to
dismiss, (2) finding that Limpach was entitled to summary
judgment, and (3) finding that Ridder was entitled to sum-
mary judgment.
STANDARD OF REVIEW
[1,2] An appellate court reviews a grant of summary judg-
ment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences
in that party’s favor. Gonzales v. Nebraska Pediatric Practice,
308 Neb. 571, 955 N.W.2d 696 (2021). An appellate court
affirms a grant of summary judgment if the pleadings and
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DAVIS v. RIDDER
Cite as 309 Neb. 865admitted evidence show that there is no genuine issue as to
any material facts or as to the ultimate inferences that may be
drawn from the facts and that the moving party is entitled to
judgment as a matter of law. Id.ANALYSIS
Statute of Limitations.
Davis’ first two assignments of error concern the district
court’s conclusion that her claim against Limpach was barred
by the statute of limitations. Davis contends that the district
court erred when it granted Limpach’s motion to dismiss and
then when it overruled her motion to reconsider and found that
Limpach was entitled to summary judgment.
Davis argues the district court erred by not converting
Limpach’s motion to dismiss to a motion for summary judg-
ment and by ruling on the motion without giving Davis an
opportunity to depose Ridder and Limpach. Davis is correct
that because the district court received affidavits from Ridder
and Limpach in support of Limpach’s motion to dismiss, it
should have notified the parties that the motion would be
treated as one for summary judgment under Neb. Ct. R. Pldg.
§ 6-1112(b). Davis also has at least a plausible argument
that the district court should have given her an opportunity
to depose Ridder and Limpach and present evidence from
those depositions in opposition to Limpach’s motion. See,
e.g., Ichtertz v. Orthopaedic Specialists of Neb., 273 Neb. 466,
470, 730 N.W.2d 798, 803 (2007) (explaining that when court
converts motion to dismiss to motion for summary judgment,
court should give parties “reasonable opportunity to present all
material made pertinent to such a motion” (internal quotation
marks omitted)).
Although the district court should have converted Limpach’s
motion to dismiss to a motion for summary judgment and
possibly should have given Davis the opportunity to depose
Ridder and Limpach before ruling on it, any error in the district
court’s treatment of the motion to dismiss was cured when it
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DAVIS v. RIDDER
Cite as 309 Neb. 865later ruled on Davis’ motion to reconsider. There, the district
court acknowledged that it should have analyzed the motion as
one for summary judgment and went on to consider evidence
Davis presented from the depositions of Ridder and Limpach in
the course of concluding that Limpach was entitled to summary
judgment on the statute of limitations issue. We thus direct our
focus to whether that determination was correct.
There is no dispute that a 4-year statute of limitations applies
to Davis’ claim against Limpach. See § 25-207. Likewise, the
parties agree that the statute of limitations began to run on the
date of the accident, March 25, 2014. Because the original
complaint naming only Ridder was filed within 4 years of that
date but the amended complaint naming Limpach was not, the
question of whether Davis’ claim against Limpach is barred
by the statute of limitations turns on whether the claim against
Limpach asserted for the first time in the amended complaint
relates back to the date of the filing of the initial complaint.
Davis argues that the claim relates back under § 25-201.02(2).
That statute provides:
If the amendment changes the party or the name of the
party against whom a claim is asserted, the amendment
relates back to the date of the original pleading if (a) the
claim or defense asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, and (b)
within the period provided for commencing an action the
party against whom the claim is asserted by the amended
pleading (i) received notice of the action such that the
party will not be prejudiced in maintaining a defense on
the merits and (ii) knew or should have known that, but
for a mistake concerning the identity of the proper party,
the action would have been brought against the party.
§ 25-201.02(2).
[3] Section 25-201.02(2) essentially codified our decision
in Zyburo v. Board of Education, 239 Neb. 162, 474 N.W.2d
671 (1991). See Gibbs Cattle Co. v. Bixler, 285 Neb. 952,
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DAVIS v. RIDDER
Cite as 309 Neb. 865831 N.W.2d 696 (2013). In Zyburo, we adopted a rule set forth
in the then-current Fed. R. Civ. P. 15(c) (Rule 15(c)) for the
relation back of amendments substituting parties. See John
P. Lenich, Nebraska Civil Procedure, § 15.10 (2021). We
explained that under Rule 15(c), relation back was dependent
upon four requirements: (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. See Zyburo, supra.Section 25-201.02(2) allows for relation back if these same
requirements are shown, but clarifies that the second and third
requirements must be fulfilled “within the period provided for
commencing an action” and does not grant an additional grace
period for service of summons. See Kotlarz v. Olson Bros. Inc.,
16 Neb. App. 1, 740 N.W.2d 807 (2007).
The parties appear to agree that the substitution of Limpach
as the party who parked the Neon at the gas station was an
amendment “chang[ing] the party . . . against whom a claim is
asserted” under the statute. Cf. Gibbs Cattle Co., supra. There
also is no dispute that the claim against Limpach arose out of the
same occurrence set forth in the initial complaint. The district
court found, however, that there was no evidence that would
allow for a finding that, within the limitations period, Limpach
had notice of the action or knew or should have known that,
but for a mistake concerning the identity of the proper party,
the action would have been brought against him.
In our view, there appears to be a genuine factual dispute as
to whether Limpach had notice of the action within the limita-
tions period. The deposition testimony, viewed in a light most
favorable to Davis, showed a discrepancy regarding whether
Ridder informed Limpach about the lawsuit “shortly after”
Ridder learned about it in mid-March, or sometime after the
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DAVIS v. RIDDER
Cite as 309 Neb. 865limitations period expired. As Davis observes, the testimony of
Ridder and of Limpach tends to conflict as to whether they dis-
cussed the suit “within the period provided for commencing an
action.” We find it unnecessary to dwell on this issue, however,
because, as we will explain, we find there was no gen­uine issue
of fact as to whether Limpach knew or should have known
within the limitations period that, but for a mistake concerning
his identity, he would have been sued.
We have not previously discussed or applied the mistaken
identity requirement of § 25-201.02(2)(b)(ii). Its language, how-
ever, is substantially similar to language found in Rule 15(c),
and we find the U.S. Supreme Court’s decision in Krupski v.
Costa Crociere S. p. A., 560 U.S. 538, 130 S. Ct. 2485, 177 L.
Ed. 2d 48 (2010), exploring the meaning of that language, a
helpful guide in understanding its Nebraska counterpart.
In Krupski, a passenger was injured on a cruise ship. She
filed suit against Costa Cruise Lines, alleging it operated the
ship and was responsible for her injuries. In fact, Costa Cruise
Lines was merely a ticketing agent, and the passenger’s ticket
identified the operator of the ship as Costa Crociere S. p. A.
After the statute of limitations expired, Costa Cruise Lines
obtained summary judgment on the grounds that it did not oper-
ate the ship. When the passenger filed an amended complaint
substituting Costa Crociere as the defendant, the trial court
dismissed the complaint as untimely. The trial court concluded
that the complaint did not relate back under Rule 15(c).
The 11th Circuit affirmed. It concluded that because the pas-
senger’s ticket informed her that Costa Crociere operated the
ship, the passenger either knew or should have known of Costa
Crociere’s identity as a potential party. Consequently, the 11th
Circuit concluded, it was appropriate to treat the passenger as
having made a deliberate choice to sue one potential party over
another rather than having made a mistake.
The U.S. Supreme Court reversed. It began by explain-
ing that the 11th Circuit focused on the wrong party when it
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Cite as 309 Neb. 865concluded that the passenger knew or should have known that
Costa Crociere was the proper party. The Court explained:
By focusing on [the passenger’s] knowledge, the Court
of Appeals chose the wrong starting point. The question
under Rule 15(c)(1)(C)(ii) is not whether [the passenger]
knew or should have known the identity of Costa Crociere
as the proper defendant, but whether Costa Crociere knew
or should have known that it would have been named as
a defendant but for an error. [The rule] asks what the pro-
spective defendant knew or should have known during the
[relevant] period, not what the plaintiff knew or should
have known at the time of filing her original complaint.
Id., 560 U.S. at 548 (emphasis in original).
Later, the Court added that the relevant inquiry under Rule
15(c)(1)(C)(ii) “is what the prospective defendant reasonably
should have understood about the plaintiff’s intent in filing the
original complaint against the first defendant.” Krupski, 560
U.S. at 554.
The Court also clarified that a plaintiff can be aware of
a party’s existence and still make a mistake regarding that
­party’s identity. It illustrated that point by observing that a
party would make a mistake concerning a proper party’s iden-
tity if it knew a party existed but believed it to have the status
of another party or if it knew two parties existed but misunder­
stood the roles the parties played in the events giving rise to
the claim.
With this understanding in mind, the Court found that the
amended complaint related back. Costa Crociere did not chal-
lenge the district court’s finding that it had notice of the
complaint during the relevant time period. And, because the
allegations within the complaint made clear that the passenger
intended to sue the entity that had operated the cruise ship,
Costa Crociere should have known that it was not named as
a defendant only because of the passenger’s misunderstanding
about which entity operated the ship.
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Cite as 309 Neb. 865Under the reasoning of the U.S. Supreme Court’s decision
in Krupski, it appears that Davis made a mistake concern-
ing the identity of the proper party when she filed the initial
complaint naming Ridder as the driver of the Neon rather
than Limpach. Even if Davis knew about the existence of both
Ridder and Limpach, the initial complaint demonstrated a mis-
understanding regarding the roles those parties played in the
events giving rise to the accident. However, even if Davis made
a mistake regarding the identity of the proper party, that would
not compel a finding that her claim against Limpach relates
back to the date the initial complaint was filed. Even if Davis
made the requisite mistake, a question remains as to whether
Limpach knew or should have known about that mistake dur-
ing the limitations period. We turn to that question now.
Davis argues that there is a genuine issue of material fact as
to whether Limpach knew or should have known before March
25, 2018, that, but for her mistake, he would have been sued.
She relies on Limpach’s deposition testimony that Ridder told
him about the lawsuit “shortly after” he learned of it. She also
notes that Limpach would have known that he had possession
of the Neon when the accident occurred and points to evidence
that, before the limitations period expired, Limpach asked
Ridder if Ridder’s insurance would provide coverage. Davis
argues that if prior to the expiration of the statute of limita-
tions, Limpach had expressed concerns about whether Ridder’s
insurance would provide coverage and knew that, despite his
role in the accident, Davis had sued Ridder, then a reasonable
finder of fact giving her the benefit of all reasonable inferences
could conclude that Limpach knew or should have known
before the statute of limitations expired that but for a mistake
regarding his identity, he would have been sued.
We do not dispute that the evidence upon which Davis relies
could allow one to conclude that Limpach knew or should have
known that he was a possible defendant in a lawsuit filed by
Davis regarding the accident. But in our view, this evidence
alone does not tell us what Limpach knew or should have
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Cite as 309 Neb. 865known about Davis’ intent in filing a lawsuit against Ridder.
As the U.S. Supreme Court explained in Krupski, while the
mistaken identity inquiry is appropriately focused on what the
defendant knew or should have known, the question is what
the defendant knew or should have known about the plaintiff’s
intent when filing the original complaint. Krupski, 560 U.S.
at 553-54 (“the question under Rule 15(c)(1)(C)(ii) is what
the prospective defendant reasonably should have understood
about the plaintiff’s intent in filing the original complaint
against the first defendant”).
Davis has not pointed us to any evidence which tends to
show that Limpach knew within the limitations period that
Davis intended to sue the person who last had control of
the Neon before the accident. Although there is evidence
that Limpach might have known before the limitations period
expired that David had sued Ridder regarding the accident,
there is no evidence that Limpach knew the specific allegations
of Davis’ complaint. To the contrary, the only possible source
for Limpach’s knowledge about the lawsuit before the limita-
tion period expired was Ridder, and Ridder’s affidavit testi-
mony that he did not learn that he had been mistakenly named
as the driver until April 2, 2018, is undisputed. In this respect,
this case differs from Krupski where the defendant that the pas-
senger added in the amended complaint was a related corporate
entity to the original defendant and acknowledged that it had
notice of the complaint during the relevant period.
Not only has Davis not pointed us to evidence that Limpach
knew that Davis intended to sue the person who parked the
Neon at the gas station, neither has she pointed us to evidence
that Limpach should have known that Davis intended to do so.
The fact that Davis had sued Ridder would not have informed a
reasonable person in Limpach’s position that Davis must have
made a mistake of identity. Ridder was the owner of the Neon
and therefore also a possible defendant. Even in the amended
complaint, Davis named Ridder as a defendant on a negli-
gent maintenance theory. The fact that Davis had sued Ridder
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Cite as 309 Neb. 865thus would not have informed a person in Limpach’s position
that Davis must have intended to sue the person who last had
control of the Neon but failed to do so because of a mistake
of identity.
Because Davis has not identified evidence tending to show
that Limpach knew or had reason to know which party Davis
intended to sue, we do not believe a reasonable fact finder
could conclude that Limpach knew or should have known dur-
ing the limitations period that, but for a mistake regarding his
identity, he would have been sued. Accordingly, the amended
complaint did not relate back and Limpach was entitled to
summary judgment on statute of limitations grounds.
Negligent Maintenance of the Neon.
Davis next claims that the district court erred when it
entered summary judgment in favor of Ridder. She contends
that Ridder violated his duty as the owner of the Neon to
ensure that it was in a reasonably safe condition before allow-
ing it to be operated on public roads. She argues that because
the Neon had previously experienced problems with the clutch
and Ridder did not have maintenance records for it, there was
a genuine issue of fact as to whether Ridder “failed to maintain
the [Neon] to the point that the clutch and/or gear were faulty,
causing [it] to roll.” Brief for appellant at 17.
Even if it is assumed that Ridder was under the duty Davis
describes, we find Ridder was entitled to summary judgment.
Although the clutch on the Neon had previously experienced
problems, Ridder had Limpach replace it and Ridder testified
that there was no indication of problems with the transmis-
sion before the accident. He further testified that he drove
the Neon after the accident and that it performed as it had
before. Limpach also testified that he did not believe the
clutch was defective. In contrast, Davis failed to identify any
evidence that would support an inference that Ridder neg-
ligently failed to maintain the Neon. Ridder was entitled to
summary judgment.
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Cite as 309 Neb. 865CONCLUSION
For the reasons set forth herein, we find that both Ridder
and Limpach were entitled to summary judgment. Accordingly,
we affirm.
Affirmed.
Miller-Lerman, J., concurring.
I concur in the outcome of the majority opinion. While gen-
erally I agree with the majority’s statement of facts, I would
note two additional sets of undisputed facts helpful to the
analysis. First, Davis testified that immediately after the colli-
sion, Limpach, the operator of the Neon, crossed the street and
essentially admitted that he had probably failed to properly put
the Neon in gear when he parked and Limpach called Ridder
who arrived at the scene of the collision and indicated to Davis
that he was the owner of the Neon. Second, Davis’ attorney
swore in an affidavit that, despite incorrectly naming Ridder as
the Neon’s operator in the initial complaint, his files prior to
the filing had accurately showed Limpach as the operator and
Ridder as the owner/insured.
I would reach the same outcome as the majority, although
as to Limpach, my reasoning differs with respect to whether
the amended complaint relates back to the date of the origi-
nal filing for purposes of the statute of limitations. I write
separately on that issue. I would find that there was no “mis-
take concerning the identity of the proper party” as the term
“mistake” is used in the relation back statute, Neb. Rev. Stat.
§ 25-201.02(2) (Reissue 2016) and end the analysis there. The
majority seems to endorse the existence of a “mistake”; so that
is where we differ.
Davis contends that the claim against Limpach in the
amended complaint relates back to the original complaint.
Because of my emphasis on the text of “mistake” in the statu-
tory language, I repeat the relevant portion of § 25-201.02(2),
which provides:
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Cite as 309 Neb. 865If the amendment changes the party or the name of the
party against whom a claim is asserted, the amendment
relates back to the date of the original pleading if (a) the
claim or defense asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, and (b)
within the period provided for commencing an action the
party against whom the claim is asserted by the amended
pleading (i) received notice of the action such that the
party will not be prejudiced in maintaining a defense on
the merits and (ii) knew or should have known that, but
for a mistake concerning the identity of the proper party,
the action would have been brought against the party.
(Emphasis supplied.) Thus, the threshold issue under
§ 25-201.02(2)(b)(ii) is whether the amendment that changes
the party or name of the party is due to “a mistake concerning
the identity of the proper party.” “Mistake” is a term of art.
We have acknowledged parallels between § 25-201.02(2),
our relation back case law, and Fed. R. Civ. P. 15(c) (Rule
15(c)) jurisprudence to the extent the rules overlap. See,
Zyburo v. Board of Education, 239 Neb. 162, 474 N.W.2d 671(1991); West Omaha Inv. v. S.I.D. No. 48, 227 Neb. 785, 420
N.W.2d 291 (1988). The legislative history of § 25-201.02(2)
bears out the Legislature’s intent to model it after the federal
rules. See Introducer’s Statement of Intent, L.B. 876, Judiciary
Committee, 97th Leg., 2d Sess. (Jan. 25, 2002) (“the Federal
Rules of Civil Procedure [served] as a model”). For purposes
of the issues presented by this case, § 25-201.02(2)(b)(ii) is
equivalent to Rule 15(c)(1). Compare Kotlarz v. Olson Bros.,
Inc., 16 Neb. App. 1, 740 N.W.2d 807 (2007) (acknowledging
that Legislature’s enactment of § 25-201.02(2)(b) superseded
prior case law and Rule 15(c) and that Nebraska and federal
law differ regarding the time by which amendment must be
served). The text of § 25-201.02(2)(b)(ii), our case law there-
under, and the legislative history all direct us to apply the case
law under Rule 15(c) with respect to the term “mistake.”
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Cite as 309 Neb. 865This court has not expressly expounded on the term “mis-
take” as used in the “mistake concerning the identity of the
proper party” requirement in § 25-201.02(2)(b)(ii). This case
presents an opportunity to examine the differences between
the categories of mistakes litigants attempt to correct in their
amended pleadings.
Rule 15(c) jurisprudence identifies a few primary types of
mistakes: misnomer cases, lack of knowledge cases, and mere
mistake and inexcusable neglect cases. Of these, only the first
type, misnomer cases, are typically considered a “mistake con-
cerning the identity of the proper party” and the amendment is
permitted to relate back.
Misnomer cases are the classic example of a mistake con-
cerning identity of the proper party under Rule 15(c) and
encompass such issues as incorrect spellings or form of corpo-
rate organization. Relation back is typically permitted. These
cases often involve a mistake in the precision with which a
party is named or related entities which through an identity of
interest knew of the initial complaint. E.g., Krupski v. Costa
Crociere S. p. A., 560 U.S. 538, 542, 543, 130 S. Ct. 2485,
177 L. Ed. 2d 48 (2010) (party initially identified as “Costa
Cruise Lines” instead of “‘Costa Crociere S. p. A.’”); Morel
v. DaimlerChrysler AG, 565 F.3d 20, 22 (1st Cir. 2009) (party
initially identified as “Daimler-Chrysler Corporation” instead
of “DaimlerChrysler AG”); Goodman v. Praxair, Inc., 494 F.3d
458, 461 (4th Cir. 2007) (en banc) (party initially identified as
“Praxair, Inc.” instead of “Praxair Services, Inc.”); Pittman v.
Foote Equip. Co., 1 Neb. App. 105, 107, 487 N.W.2d 584, 586
(1992) (party initially identified as “Foote Realty Company”
and “Foote Tire Company,” not “Foote Equipment Company”
and “Robert L. Foote”).
Another category of cases analyzed under Rule 15(c) com-
prises those in which the plaintiff is unaware of the identity of
the defendant, and may name the defendant by a placeholder
such as John/Jane Doe. Relation back is typically not permit-
ted. In these “John/Jane Doe” cases, the amendment is not
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Cite as 309 Neb. 865within Rule 15(c), because the flaw in the complaint is caused
by a plaintiff’s lack of knowledge but not because of an error
or mistake in the identification or naming of a defendant. See,
e.g., Ceara v. Deacon, 916 F.3d 208 (2d Cir. 2019) (approv-
ing Barrow v. Wethersfield Police Dept., 66 F.3d 466 (2d Cir.
1995), post-Krupski); Heglund v. Aitkin County, 871 F.3d 572(8th Cir. 2017) (cases collected); Garrett v. Fleming, 362 F.3d
692 (10th Cir. 2004).
A third category of cases comprises those in which the mis-
take in naming a party in the complaint, albeit a mistake, is
not a mistake of identity encompassed by Rule 15(c). Relation
back is typically not permitted. These cases include both simple
mistakes and inexcusable neglect. There are several scenarios
exhibited by this category, including the following: A plaintiff
is aware of the purported misconduct of an individual and the
role the individual played in the incident but is not required to
sue the individual, a plaintiff makes a mistake in legal judg-
ment and fails to name a party, and a plaintiff simply omits a
known defendant. These are not “mistakes” under Rule 15(c).
See, e.g., Cornwell v. Robinson, 23 F.3d 694 (2d Cir. 1994)
(where plaintiff is aware of misconduct of certain individual
but is not required to sue that individual); Harris v. Rambosk,
No. 2:18-cv-17-FtM-29MRM 2020 WL 6505036 (M.D. Fla.
Nov. 5, 2020) (purported defendant well-known from the inci-
dent not named as defendant); Lin v. Joedy, 214 F. Supp. 3d
207 (W.D.N.Y. 2016) (attorney mistakenly naming wrong party
where correct party known from incident, not “mistake” con-
cerning identity of proper party); Rendall-Speranza v. Nassim,
107 F.3d 913 (D.C. Cir. 1997) (mistake in legal judgment
not mistake in naming party). See, also, Ferencz v. Medlock,
905 F. Supp. 2d 656 (W.D. Pa. 2012) (attorney’s mistake in
choosing whom to sue is not mistake of identity). The instant
case belongs to this third category, and because there was no
“mistake” as used in § 25-201.02(2)(b)(ii), Davis cannot avail
herself of the benefit of relation back.
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Cite as 309 Neb. 865Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 130 S. Ct.
2485, 177 L. Ed. 2d 48 (2010), cited by the majority, is the
leading case on the law of relation back and mistake, and its
facts and dicta illustrate the nuance required to decide mistake
cases. At its core, Krupski was a misnomer case in which the
plaintiff sued “Costa Cruise Lines” instead of “‘Costa Crociere
S. p. A.’” and relation back was permitted. 560 U.S. at 542,
543. Most important, Krupski clarified that courts should eval­
uate the knowledge-of-mistake factor—if mistake there be—in
Rule 15(c) from the point of view of the defendant. In doing so,
Krupski described various potential “mistakes” and scenarios
which were not “mistakes” for Rule 15(c) purposes.
The Supreme Court stated in Krupski: “When the original
complaint and the plaintiff’s conduct compel the conclusion
that the failure to name the prospective defendant in the
original complaint was the result of a fully informed decision
as opposed to a mistake concerning the proper defendant’s
identity, the requirements of Rule 15(c)(1)(C)(ii) are not met.”
560 U.S. at 552. In Krupski, the Supreme Court stated: “We
agree that making a deliberate choice to sue one party instead
of another while fully understanding the factual and legal dif-
ferences between the two parties is the antithesis of making a
mistake concerning the proper party’s identity.” 560 U.S. at
549. The Court explained its rationale as follows:
A prospective defendant who legitimately believed that
the limitations period had passed without any attempt to
sue him has a strong interest in repose. But repose would
be a windfall for a prospective defendant who understood,
or who should have understood, that he escaped suit dur-
ing the limitations period only because the plaintiff mis-
understood a crucial fact about his identity.
Id., 560 U.S. at 550 (emphasis supplied). In Krupski, the Court
explained that a misunderstanding of a crucial fact about a
defendant is a misunderstanding of what role the omitted
defendant played.
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Cite as 309 Neb. 865The Supreme Court offered a hypothetical in Krupski in
which it explained that a plaintiff could know of a party’s
existence and still make a mistake within the meaning of Rule
15(c) with respect to that party’s identity. The hypothetical
stated as follows:
A plaintiff may know that a prospective defendant—call
him party A—exists, while erroneously believing him to
have the status of party B. Similarly, a plaintiff may know
generally what party A does while misunderstanding the
roles that party A and party B played in the “conduct,
transaction, or occurrence” giving rise to her claim. If
the plaintiff sues party B instead of party A under these
circumstances, she has made a “mistake concerning the
proper party’s identity” notwithstanding her knowledge of
the existence of both parties.
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 549, 130 S.
Ct. 2485, 177 L. Ed. 2d 48 (2010).
The plaintiff in Krupski fell into the description of the hypo-
thetical, because although she knew of both entities, she did
not know of the roles or status of the two entities. However, the
instant case bears no similarity to the hypothetical in Krupski,
because it is undisputed that Davis knew both the identities
of the two prospective defendants and the existence of their
differing roles as operator as distinguished from owner of
the Neon from the very outset of the incident. Davis did not
make the same type of nomenclature mistake as the plaintiff
in Krupski, who was, for practical purposes, unaware of the
defendants’ confusing corporate identities.
Courts following the Krupski decision explain the difference
between a mistake concerning identity, which allows relation
back, and an ordinary mistake or negligent failure to add a
party known to the plaintiff, which disallows relation back.
For example, in a case where a plaintiff’s amendment would
add two additional defendants whose purported misconduct
was known to the plaintiff and plaintiff was not required to
sue all the individuals, a court concluded that the claims did
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Cite as 309 Neb. 865not relate back because the failure to name the defendants is
considered by the court as “the result of a fully informed deci-
sion as opposed to a mistake concerning the proper defendant’s
identity.” Schoolcraft v. City of New York, 81 F. Supp. 3d 295,
301 (S.D.N.Y. 2015) (quoting Krupski, supra). Schoolcraft
summarized this type of filing situation as follows:
Where a plaintiff is aware of the purported misconduct
of certain individuals, and where a plaintiff “was not
required to sue them . . . her failure to do so in the origi-
nal complaint, in light of her obvious knowledge and the
detailed nature of that pleading[] . . . must be considered
a matter of choice, not mistake.” Cornwell v. Robinson,
23 F.3d 694, 705 (2d Cir.1994); see also Barrow, 66
F.3d at 470 (“the failure to identify individual defendants
when the plaintiff knows that such defendants must be
named cannot be characterized as a mistake”); Abdell v.
City of New York, 05-CV-8453, 2006 WL 2620927, at
*7 (S.D.N.Y. Sept. 12, 2012) (“Where a plaintiff fails to
timely sue a potentially liable party despite incriminat-
ing disclosures made within the statute of limitations, the
Court cannot find that a mistake was made for relation
back purposes.”).
81 F. Supp. 3d at 301.
In the instant case, Davis testified that after the collision,
Limpach crossed the street and admitted that he had been
operating the Neon and had failed to properly put it in gear
when he parked. Limpach then called Ridder to the scene,
and Ridder identified himself as the owner. The record shows
that Davis had knowledge of the specific role of each defend­
ant, as was clear from the affidavit sworn by Davis’ attorney
that acknowledged that in spite of the pleading, his files
accurately showed Limpach as the operator and Ridder as the
owner/insured. Limpach and Ridder disclosed their identities
to Davis, and unlike the plaintiff in Krupski, there is no dis-
pute in the record that Davis was not only aware of Limpach
and Ridder generally, but also knew of and appreciated their
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Cite as 309 Neb. 865differing roles with respect to the Neon from the very outset
of the incident. Further, there is no basis to presume that the
inclusion of both Limpach and Ridder in the suit was neces-
sary; the amended complaint offers several theories of recov-
ery, each of which would not necessarily implicate both as
prospective defendants.
Just as other courts have applied the equivalent portion of
Rule 15(c), I would hold that under § 25-201.02(2)(b)(ii), a
“mistake” does not include situations where, due to choice
or inexcusable neglect, a plaintiff does not sue a party where
the party’s identity and role are known to the plaintiff within
the limitation period. On the record before us, there is no
possible inference from the evidence that Davis’ exclusion of
Limpach in the original complaint was a “mistake concern-
ing the identity of the proper party” as understood under the
threshold inquiry of § 25-201.02(2)(b)(ii). Accordingly, Davis’
amended complaint adding Limpach filed after the statute of
limitations cannot be afforded the benefit of relation back and
Limpach is entitled to the benefits of repose. Ultimately, I
agree with the majority that the district court correctly ruled
that Davis’ claims against Limpach are time barred under
the 4-year limitations period provided by Neb. Rev. Stat.
§ 25-207(3) (Reissue 2016) and that Limpach was entitled to
summary judgment.
Cassel, J., concurring.
If this court were writing on a clean slate, I would agree
with the reasoning of the majority opinion. But when the
Legislature adopts a statute based on a federal rule which has
already received a known and definite construction in federal
courts, the Legislature is presumed to adopt the construc-
tion thus given. 1 On that basis, I join Justice Miller‑Lerman’s
1
See, McEwen v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d
120 (2019); Todd v. County of Box Butte, 169 Neb. 311, 99 N.W.2d 245(1959). See, also, John P. Lenich, Nebraska Civil Procedure § 1:4 (2020).
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Cite as 309 Neb. 865concurrence discussing “mistake concerning the identity of
the proper party” to the extent the federal decisions cited
therein either predate or are based on earlier decisions predat-
ing the Legislature’s enactment of Neb. Rev. Stat. § 25‑201.02
(Reissue 2016) in 2002. 2
2
See 2002 Neb. Laws, L.B. 876, § 2.