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309 Nebraska Reports

DAVIS v. RIDDER

Cite as 309 Neb. 865

Bettye 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 inferences 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 relation 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 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.

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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/22/2021 08:09 AM CDT
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DAVIS v. RIDDER

Cite as 309 Neb. 865

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

Bettye Davis filed a lawsuit against Thomas Ridder alleging 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 discovered a problem: Ridder was the owner of the vehicle that struck 

hers, but someone else, Donald N. Limpach, Jr., was operating 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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Complaint 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, naming 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 statute 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 lawsuit 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 complaint 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 contacted Limpach to pass on that information.
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Cite as 309 Neb. 865

Limpach stated in his affidavit that between April 10 and 12, 

2018, he spoke by phone with Ridder, the insurance representative, 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 evidence 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 reconsider 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 hearing 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. 865

did 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 testified 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 performed 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 accident, 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 rolling, 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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The district court entered an order granting Ridder’s motion 

for summary judgment and denying Davis’ motion to reconsider the district court’s dismissal of Limpach. The district 

court concluded that Davis did not present evidence to establish a genuine issue of material fact as to whether Ridder properly 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 dismissing 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 evidence 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 summary judgment.

STANDARD OF REVIEW

[1,2] 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 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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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. 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 judgment 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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later 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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Cite as 309 Neb. 865

831 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 limitations 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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Cite as 309 Neb. 865

limitations period expired. As Davis observes, the testimony of 

Ridder and of Limpach tends to conflict as to whether they discussed 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, however, 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 operate 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 passenger’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 explaining that the 11th Circuit focused on the wrong party when it 
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concluded 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 prospective 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 identity if it knew a party existed but believed it to have the status 

of another party or if it knew two parties existed but misunderstood 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 challenge 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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Under the reasoning of the U.S. Supreme Court’s decision 

in Krupski, it appears that Davis made a mistake concerning 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 misunderstanding 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 during 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 limitations, 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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known 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 limitation period expired was Ridder, and Ridder’s affidavit testimony 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 passenger 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 negligent maintenance theory. The fact that Davis had sued Ridder 
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thus 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 during 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 allowing 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 transmission 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 negligently failed to maintain the Neon. Ridder was entitled to 

summary judgment.
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CONCLUSION

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 generally 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 collision, 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 original filing for purposes of the statute of limitations. I write 

separately on that issue. I would find that there was no “mistake 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 statutory language, I repeat the relevant portion of § 25-201.02(2), 

which provides:
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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.

(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 thereunder, 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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This court has not expressly expounded on the term “mistake” 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 concerning the identity of the proper party” and the amendment is 

permitted to relate back.

Misnomer cases are the classic example of a mistake concerning identity of the proper party under Rule 15(c) and 

encompass such issues as incorrect spellings or form of corporate 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) comprises 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 permitted. In these “John/Jane Doe” cases, the amendment is not 
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within 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) (approving 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 mistake 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 judgment 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 incident 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” concerning 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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Krupski 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 evaluate 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 differences 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 during the limitations period only because the plaintiff misunderstood 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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The 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 hypothetical, 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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not relate back because the failure to name the defendants is 

considered by the court as “the result of a fully informed decision 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 original 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 incriminating 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 defendant, 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 dispute 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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differing 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 necessary; the amended complaint offers several theories of recovery, 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 concerning 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 construction 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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concurrence 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 predating 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.