25-201.02. Amendment of pleading; effect.

(1) An amendment of a pleading that does not change the party or the name of the party against whom the claim is asserted relates back to the date of the original pleading if 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.

(2) 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.

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Annotations

Subsection (2) of this section applies only to an amendment that “changes the party or the name of the party” and that refers to a substitution, rather than to an addition, of parties. Gibbs Cattle Co. v. Bixler, 285 Neb. 952, 831 N.W.2d 696 (2013).

Amended pleading to identify intended defendant and to plead that intended defendant had constructive notice of lawsuit would not relate back to original complaint which was served on defendant's father who bore same name, for purposes of 4-year limitations period; name of defendant was same in both original and proposed amended complaint, and thus, there was nothing to amend, and summary judgment evidence indicated that intended defendant did not know about lawsuit before limitations period expired. Rudd v. Debora, 20 Neb. App. 850, 835 N.W.2d 765 (2013).

This section eliminates the 6-month grace period from the time in which a substituted defendant could have acquired notice of the suit; therefore, the substituted defendant must have had notice before the statute of limitations ran. Kotlarz v. Olson Bros., Inc., 16 Neb. App. 1, 740 N.W.2d 807 (2007).