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West v. Buchanan (6/11/99) sp-5134


     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA


CARMEN M. WEST,               )
                              )    Supreme Court No. S-8147
               Appellant,     )
                              )    Superior Court No.
          v.                  )    4FA-95-1394 CI
                              )
HILTRUD A. BUCHANAN,          )    O P I N I O N
                              )
               Appellee.      )    [No. 5134 - June 11, 1999]
                              )




          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                  Niesje J. Steinkruger, Judge.


          Appearances:  Arthur L. Robson, Robson Law
Office, Fairbanks, for Appellant.  Jonathon A. Katcher, Pope &
Katcher, Anchorage, for Appellee.


          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.


          FABE, Justice.
          EASTAUGH, Justice, with whom COMPTON, Justice,
joins, dissenting.


I.   INTRODUCTION
          Carmen West appeals the superior court's dismissal of her
personal injury action on statute of limitations grounds.  Although
West initially sued the wrong person on the last day available
under the statute of limitations, she substituted Hiltrud Buchanan
as the named defendant within the period allowed by court rule for
service of the complaint.  Because we conclude that West's amended
complaint substituting Buchanan as defendant should relate back to
the time of its initial filing, we reverse.
II.  FACTS AND PROCEEDINGS
          On June 17, 1993, Carmen West was involved in a traffic
accident with Hiltrud Buchanan, who was driving a car owned by
William Bembry.  That summer, West retained counsel, who began
negotiating on her behalf with Allstate Insurance, the insurer of
the Buchanan/Bembry vehicle.  The headings on Allstate's
negotiation letters referred to "our insured:  William Bembry."
          By June 1995 West and Allstate had failed to reach a
settlement agreement.  On June 16, 1995, the last day available
under the applicable statute of limitations, West filed a complaint
against Bembry.  West sent the complaint and summons to Bembry by
certified mail on June 19, 1995, and Bembry received them on June
22, 1995.
          About three months later, on September 25, 1995, West
moved to amend her complaint to substitute Buchanan as the
defendant.  Bembry opposed on the ground of futility, arguing that
the statute of limitations would bar the amended complaint since it
could not properly "relate back"to the original filing.  Superior
Court Judge Ralph R. Beistline granted the motion to amend,
reasoning that notice of the claim could be imputed to Bembry
because he was "apparently in a close relationship"with Buchanan
and that Buchanan "was a permissive user of his automobile."  Judge
Beistline also relied on the fact that "[n]egotations were on-going
to resolve the claim,"concluding that it was "clear that the
parties understood that a claim existed arising out of this
accident."
          Buchanan, now the named defendant, filed an answer and a
Notice of Change of Judge.  The case was reassigned to Superior
Court Judge Niesje J. Steinkruger.  Buchanan then moved for summary
judgment based on West's failure to file within the applicable
period of limitations.  Judge Steinkruger granted Buchanan's motion
for summary judgment "based upon the Statute of Limitations." 
Implicit in this holding was Judge Steinkruger's determination that
West's amended complaint did not relate back to the date of her
original complaint.  West moved for reconsideration, but Judge
Steinkruger denied this motion.  West appeals.
III. STANDARD OF REVIEW
          The issues on review involve questions of law.  We review
such questions de novo. [Fn. 1]  We are not bound by the lower
court's decision, but have the duty to "adopt the rule of law that
is most persuasive in light of precedent, reason, and policy."[Fn.
2]
IV.  DISCUSSION
     A.   Buchanan's Notice of Change of Judge Was Timely.
          West first suggests that Buchanan's Notice of Change of
Judge was untimely.  This contention is without merit.  Alaska
Civil Rule 42(c)(3) provides, in part: 
          Where a party has been served or enters an
action after the case has been assigned to a specific judge, a
notice of change of judge shall also be timely if filed by the
party before the commencement of trial and within five days after
a party appears or files a pleading in the action.

          West argues that because the amendment to her complaint
related back to the time of its initial filing, Buchanan should not
have been permitted to peremptorily challenge Judge Beistline.  But
West's contention rests on a false premise.  West asserts that
"Alaska Rule of Civil Procedure 42(c)(1) aggregates both Bembry and
Buchanan as a single party."  This interpretation is incorrect. 
Civil Rule 42(c)(1) explains only that "[t]wo or more parties
aligned on the same side of an action . . . shall be treated as one
side for purposes of the right to a change of judge."  (Emphasis
added.) In its discussion of the timeliness of peremptory
challenges, Civil Rule 42(c)(3) explicitly refers to parties, not
sides.  Moreover, the position West advocates would require
Buchanan to have peremptorily challenged Judge Beistline before she
was made a party to the action. [Fn. 3]  To adopt West's assertion
would eliminate the right of persons in Buchanan's position to
peremptorily challenge a judge.  The decision to allow Buchanan to
peremptorily challenge Judge Beistline was correct.
     B.   Judge Steinkruger Did Not Err in Declining to Follow the
Law of the Case.

          Although Judge Beistline concluded that the statute of
limitations did not bar amendment of the complaint because the
amendment would properly relate back to the date the complaint was
filed, the case was then reassigned to Judge Steinkruger, who
viewed this issue differently.  In granting Buchanan's motion for
summary judgment based on the statute of limitations, Judge
Steinkruger implicitly held that West's amended complaint would not
relate back to the date her complaint was originally filed, thus
overruling Judge Beistline's earlier decision.  West suggests that
Judge Steinkruger erred by failing to follow the law of the case.
[Fn. 4]
          Stepanov v. Gavrilovich [Fn. 5] provides guidance on this
issue.  In Stepanov, we explained that the law of the case doctrine
"expresses the practice of courts generally to refuse to reopen
what has been decided."[Fn. 6]  This practice is not an absolute
rule of law.  Rather it is a matter of "sound judicial policy."
[Fn. 7]  We recognized the power of one trial court judge to
overrule another, in the proper exercise of judicial discretion.
[Fn. 8]  And, "[w]hile this power is not to be used lightly,"[Fn.
9] we observed that it is "entirely reasonable for a judge whose
responsibility it is to try a case to reconsider and reverse an
earlier ruling if convinced that that ruling was erroneous."[Fn.
10]  Judge Steinkruger was within her discretion to reconsider
whether West's amended complaint would properly relate back to the
date her complaint was originally filed.
     C.   West's Amendment Substituting Buchanan as Defendant
Relates Back to the Initial Filing of the Complaint.

          In order to determine whether West's amended complaint,
which substituted Hiltrud Buchanan as the defendant, relates back
to the original complaint, we must interpret the language of Alaska
Civil Rule 15(c).  This provision sets forth the criteria for an
amendment to relate back to the filing of the original pleading. 
The rule states:
          Whenever 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, the amendment relates back to the date of the original
pleading.  An amendment changing the party against whom a claim is
asserted relates back if the foregoing provision is satisfied and,
within the period provided by law for commencing the action against
the party to be brought in by amendment, that party (1) has
received such notice of the institution of the action that the
party will not be prejudiced in maintaining a defense on the
merits, and (2) 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.[ [Fn. 11]]
          In determining how to interpret a particular rule, we are
guided by the purpose of the rule. [Fn. 12]  The purpose of Rule
15(c) is remedial:  The rule is meant to liberalize the rules of
pleading and to "allo[w] amendments for clarification and/or
correction of the original complaint without being barred by the
statute of limitations."[Fn. 13]  And the purpose of statutes of
limitations is to protect defendants from the injustices that may
result from the prosecution of stale claims. [Fn. 14]
          With these goals in mind, we turn to the issue before us:
whether Buchanan, as the party who was brought in by amendment,
received notice of the institution of the action and knew, or
should have known, that she was the proper defendant "within the
period provided by law for commencing the action against [her]."
[Fn. 15] Buchanan suggests that because the lawsuit was filed on
the last day available under the statute of limitations, and she
did not learn of it that day before the statute expired, the
amendment substituting her as a party cannot relate back to the
original complaint.
          Buchanan argues that our decision in Adkins v. Nabors
Alaska Drilling, Inc. [Fn. 16] is dispositive of this issue.  In
Adkins,  Adkins had timely filed suit against Standard Oil and
others for personal injuries.  After the statute of limitations
ran, Adkins attempted to amend his complaint to add Nabors, arguing
that this was permitted by Rule 15(c). [Fn. 17]  Adkins's position
was that notice of the underlying facts of the action was the same
as notice of the institution of the action. [Fn. 18]  Relying on a
federal court's interpretation of the word "action"in the
analogous federal rule, [Fn. 19] we rejected this claim:
          Under this interpretation, any knowledge that
Nabors may have had concerning Adkins' injury is irrelevant. 
Adkins must prove that Nabors actually knew of his suit against
Standard prior to the limitations period.  Adkins filed suit on
July 20, 1977.  The limitations period expired on August 9, 1977. 
In order for the amendment to relate back, Nabors must have learned
of the lawsuit during this twenty-day period.[ [Fn. 20]]

Thus, we interpreted the notice provision of Civil Rule 15(c) to
require notice of the lawsuit, as opposed to mere notice of the
facts underlying the action. [Fn. 21] 
          We disagree that Adkins controls this case.  Adkins
focused on the interpretation of the term "action"as used in the
phrase "notice of the institution of the action,"rather than the
phrase "within the period provided by law for commencing the action
against [the party]."  And contrary to the dissent's assertion,
[Fn. 22] we did not determine in Adkins that "the period provided
by law for commencing the action"refers to the limitations period. 
Thus, Adkins did not address a situation, such as this, in which
the substituted defendant learned of the plaintiff's cause of
action after the statute of limitations had run but before
expiration of time for service on the original defendant.
          Moreover, after we decided Adkins, we suggested in
Siemion v. Rumfelt [Fn. 23] that notice within the time for service
could be adequate under Rule 15(c).  In Siemion, we decided that a
complaint against Jeffrey Rumfelt's father could be amended to
include Jeffrey because of our view that "Jeffrey Rumfelt received
sufficient notice of the subject claim"and our "belie[f that] it
is reasonable to infer that Jeffrey had notice of the institution
of the suit within the same time he would have known had he been a
properly named defendant."[Fn. 24]
          While Civil Rule 15(c) is not a model of clarity, we
conclude that the language "within the period provided by law for
commencing the action"must be interpreted to encompass, when the
complaint is timely filed, the reasonable time for service of
process permitted by the rule for a named defendant.  The rule's
language combines the separate concepts of commencement of an
action with notice of the institution of the action.  But an action
may be filed and thus commenced without imparting notice to the
defendant.  Notice is usually given by service, which may take
place as long as 120 days after filing. [Fn. 25]  As a result, a
properly named defendant may not receive notice of an action until
120 days after the statute of limitations runs.  We can think of no
reason why the rule would require the added defendant to receive
notice earlier than a named defendant who is sued on the last day
of a limitations period.  Thus, we conclude that Rule 15(c) refers
to the process of commencing an action, rather than merely filing
a complaint; that process includes both timely filing and timely
service.
          We note that the prevailing interpretation of Rule
15(c)'s federal counterpart is not a bar to our decision today.  In
Schiavone v. Fortune, [Fn. 26] the United States Supreme Court
construed Federal Rule of Civil Procedure 15(c)(3) to require
notice to the intended defendant within the time for filing a
complaint under the applicable limitations period. [Fn. 27]  The
Schiavone court stated that the "plain language"of the Rule
dictated its result even though "there is an element of
arbitrariness here."[Fn. 28]  But as one commentator has noted,
the "disputed language is anything but plain, much less clear."
[Fn. 29]   Justice Stevens, joined by two other justices, came to
a different conclusion than the Court's majority when interpreting
the same "plain language":  
               The language . . . does not, however,
refer to the statute of limitations.  Rather, it describes "the
period provided by law for commencing the action against him"
(emphasis added).  As I have noted, that period includes two
components, the time for commencing the action by the filing of a
complaint and the time in which the action "against him"must be
implemented by the service of process.  If the party is
sufficiently described in the original complaint to avoid any
possibility of prejudice to the defendant, I see no reason for not
construing the Rule to embrace both components of the period
provided by law for bringing a timely action against a particular
defendant.[ [Fn. 30]]
          Furthermore, as even the dissent acknowledges, [Fn. 31]
commentators have heavily criticized this result. [Fn. 32]  As one
commentator explains, the Schiavone decision is troubling for
several reasons:
               The majority's decision effectively
vitiates the purposes of the Federal Rules of Civil Procedure in
general and of Rule 15(c) in particular. . . . Moreover, the
Schiavone Court's interpretation is clearly not in accord with Rule
8(f) in that the construction of Schiavone's pleading cannot, in
any light, be seen as accomplishing substantial justice.

               . . . [Finally,] [i]f a complaint against
a particular defendant must be filed within the limitations period
to survive Rule 15(c) scrutiny, as the Court seems to suggest,
there is no need for the relation-back doctrine at all where the
changing of a party is involved.[ [Fn. 33]]  

          Finally, other state courts, when faced with interpreting
state rules analogous to Federal Rule of Civil Procedure 15(c)(3)
in the aftermath of Schiavone, have not felt constrained to follow
the Schiavone decision with "blind devotion."[Fn. 34]  As the
Arizona Supreme Court explained, "[i]t would be foolish indeed to
interpret such a rule so narrowly as to allow its use only in those
cases in which it was not needed because the statute of limitations
had not yet run."[Fn. 35]

          Because we are not bound by a decision of the United
States Supreme Court when interpreting a state rule of civil
procedure and because we find these critiques of Schiavone
persuasive, we decline to follow the Schiavone rationale.  As long
as a claim is filed within the time permitted by the applicable
statute of limitations and served within the time permitted for
service, the purposes of both Rule 15(c) and our statutes of
limitations are satisfied. [Fn. 36]  As Justice Stevens stated in
his dissent in Schiavone:
               The principal purpose of Rule 15(c) is to
enable a plaintiff to correct a pleading error after the statute of
limitations has run if the correction will not prejudice his
adversary in any way.  That purpose is defeated -- and the Rule
becomes largely superfluous -- if it is construed to require the
correction to be made before the statute has run.[ [Fn. 37]]

Our interpretation of Rule 15(c) better serves the rule's purpose
than a reading that would preclude the relation back of an
amendment where the intended defendant receives notice that is
timely but that comes after the deadline for filing the complaint. 
We note that Federal Rule of Civil Procedure 15(c) has been amended
to substitute "within the period provided by law for commencing the
action against him"with "the period provided by Rule 4[] for
service of the summons and complaint."[Fn. 38]  We regard this as
further evidence both of the purpose of the rule and that our
interpretation is faithful to the achievement of this purpose.
          We thus conclude that West has met the requirements of
Rule 15(c):  She has proved that Buchanan received notice of the
institution of the action and knew or should have known before
expiration of the period for commencement of the action that
Buchanan was the proper party in the suit.  In this case, Buchanan
received notice identical to Bembry's.  Although West's complaint
named Bembry as the driver, both Bembry and Buchanan knew that
Buchanan was the driver.  According to Buchanan, she accompanied
Bembry to pick up the certified letter containing the complaint. 
Upon reading the complaint, both Bembry and Buchanan should have
found it obvious that the complaint mistakenly named Bembry rather
than Buchanan.
          Given these circumstances, to say that Bembry received
timely and adequate notice but Buchanan did not would seem little
more than senseless formalism.  Thus, it was error for the superior
court to dismiss West's action against Buchanan on statute of
limitations grounds.
V.   CONCLUSION
          Because we hold that West's amended complaint
substituting Buchanan as defendant related back to the time of its
initial filing, we REVERSE the superior court's dismissal of West's
action against Buchanan and REMAND for proceedings consistent with
this opinion.
          EASTAUGH, Justice, with whom COMPTON, Justice, joins,
dissenting.
          The result the court's opinion reaches today is
foreclosed by the controlling rule, our past decisions, and
authoritative interpretation of the identical federal rule.  And it
should also be foreclosed by reticence to rely on a theory not
raised or argued by the parties.  I would affirm dismissal of
West's amended complaint as untimely; it did not relate back to
West's timely original complaint.
     A.   Facts
          While driving William Bembry's car, Hiltrud Buchanan
collided with Carmen West's vehicle.  The collision occurred on
June 17, 1993.  On June 16, 1995, West commenced suit by filing a
complaint naming William Bembry as the only defendant.  The two-
year statute of limitations expired the day after West sued Bembry.
Because West served Bembry by mail, Bembry did not receive notice
of the lawsuit until after the limitations period had run.
          On September 25, 1995, more than three months later, and
thus well after the limitations period had expired, West amended
her complaint to substitute Buchanan as the only defendant.  West
has not explained why her original complaint named William Bembry;
when deposed, West testified that she realized on the day of the
accident that the driver of Bembry's car was a woman.  It is
undisputed that Buchanan (and Bembry) did not learn of the lawsuit
until after the limitations period expired.
     B.   The Court's Decision
          The court's opinion holds that the amended complaint
naming Buchanan, although filed after the statute of limitations
had run, was timely because it related back to the timely complaint
that named only Bembry.  Because notice that Bembry had been sued
was received by Bembry and Buchanan after the statute of
limitations ran, but within the 120-day period Alaska Civil Rule
4(j) allowed for serving Bembry, the opinion reasons that the
service grace period must be included "within the period provided
by law for commencing the action,"as provided by Alaska Civil Rule
15(c), in deciding whether the action against Buchanan was timely. 
     C.   Alaska Civil Rule 15(c)
          A complaint must be filed within the time specified by
law, usually by the applicable statute of limitations adopted by
the legislature.  Absent exceptions not applicable here, an amended
complaint filed after the limitations statute has run is untimely
and must be dismissed unless the requirements of Alaska Civil Rule
15(c) are met.  If they are met, the amended complaint relates back
to the date when the original complaint was filed. 
          In this case, West timely commenced suit against the
wrong defendant; she attempted to sue the right defendant only
after the statute had run.  Rule 15(c) treats this type of
amendment differently from an amendment that simply changes the
claims.  "Rule 15(c)['s] requirements are strictly construed when
the amendment adds a new defendant."[Fn. 1]  Rule 15(c) requires
that Buchanan have received, "within the period provided by law for
commencing the action,"notice that the action had been instituted.
          The opinion defines this period to include the time set
by the applicable statute of limitations plus the 120-day service
grace period provided by Rule 4(j). 
          There are two main problems with this analysis.  First,
it is contrary to our Civil Rules, particularly Rule 15(c).  Our
rules distinguish between commencing an action and serving the
defendant.  Rule 3 addresses the "commencement"of an action.  An
action is "commenced"by filing a complaint. [Fn. 2]  Rule 4 deals
with process, i.e., serving the complaint.  Subsection j of Rule 4
sets the time within which the plaintiff must serve a timely filed
complaint on the defendant; it does not enlarge the time for
commencing an action.  Rule 15(c) observes the same distinction in
language that mirrors the operative language in Rule 3; the
operative language in Rule 4(j) is alien to the part of Rule 15(c)
here in issue.
          The opinion's reliance on the service grace period
conflates the purpose of that period with the doctrine of relation-
back.  Rule 4(j)'s service grace period sets the time in which the
plaintiff must achieve service of a timely filed complaint on a
defendant named in the complaint.  Rule 15(c)'s doctrine of
relation-back enlarges the time for correcting the name of the
defendant if the proper defendant has received, within the
limitations -- not service -- period, notice that suit was filed. 
The service grace period assumes a timely complaint; it does not
enlarge the time for filing a timely complaint.  Our decision
today, however, engrafts the service grace period onto the
limitations period to make timely an amended complaint that was not
timely.  Thus, it fails to distinguish between commencing an action
and serving process.
          The opinion also fails to distinguish between Bembry and
Buchanan.  It assumes that what is fair for Bembry (who could be
served after the limitations period had run) is also fair for
Buchanan.  But their situations must be distinguished.  Bembry was
named in a timely complaint and Buchanan was not.  Rule 4(j) has
only one possible application to Buchanan: it required that she be
served within 120 days after the amended complaint was filed. 
Moreover, we should not necessarily assume that Bembry and Buchanan
must be treated identically when applying the service grace period. 
If Buchanan had gone to the courthouse on the second anniversary of
the accident and asked if she was a defendant in a lawsuit, she
would have learned that she was not.  She was thus not in the
position of a defendant who was timely sued but not yet served. 
This distinction may not be conclusive, and does not preclude
amending the rule; but it certainly justifies applying the rule as
written absent any amendment.  
          The opinion states that "to say that Bembry received
timely and adequate notice but Buchanan did not would seem little
more than senseless formalism."[Fn. 3]  But the distinction the
opinion rejects is embedded in our rule, and we should observe it. 
The opinion asserts that Rule 15(c) is "not a model of clarity."
[Fn. 4]  Perhaps so, but it is sufficiently clear that we should
apply it as written.
          The second problem inevitably follows.  The opinion
changes the substantive law which governs the time for commencing
an action.  Even assuming Rule 4(j) purported to add 120 days to
"the period provided by law for commencing"an action, it would
necessarily extend every limitations period by 120 days as long as
notice were received during that 120-day period.  We should avoid
such a substantive effect of a procedural rule.  I read the words
"provided by law"to refer to substantive law, not mere procedure. 
Our rule-making power does not give us authority to specify the
time for commencing suit; that is for the legislature.  We
sometimes decide whether substantive court-made "law"delays or
tolls the running of the statutory limitations period adopted by
the legislature, but that is not what we are doing here. [Fn. 5]  
     D.   Our Prior Decisions
          In my view, our decision in Adkins v. Nabors Alaska 
Drilling, Inc., [Fn. 6] controls.  There we rejected Adkins's
attempt to amend his complaint to add Nabors after the statute of
limitations had run.  The court distinguishes Adkins from this case
on the theory that Nabors did not receive notice of the suit until
after the service period had expired. [Fn. 7]  But that distinction
ignores the rationale that governed Adkins: that the critical
language in Rule 15(c) -- "the period provided by law for
commencing the action"-- refers to the "limitations period."[Fn.
8]  That rationale was not mere dictum, but controlled the result.
          The court looks to Siemion v. Rumfelt, [Fn. 9] to support
its holding. [Fn. 10]  In Siemion, we permitted an amended
complaint to relate back when the newly-named defendant, Jeffrey,
"had notice of the institution of the suit within the same time he
would have known had he been a properly named defendant."[Fn. 11] 
Because Rule 4(j) contemplates the possibility a properly named
defendant will not receive notice of an action until 120 days after
the statute of limitations expires, the court reads Siemion to
support its holding here.  But Jeffrey in fact had constructive
notice within the applicable period of limitations, [Fn. 12] and
Siemion cited Adkins with approval. [Fn. 13]  
          Moreover, in Farmer v. State, [Fn. 14] relying upon
language from the United States Supreme Court's opinion in
Schiavone v. Fortune, [Fn. 15] we stated that the relation back
question was whether the defendant received notice within the
limitations period. [Fn. 16]  
          Relation back is dependent upon four factors,
all of which must be satisfied: (1) the basic claim must have
arisen out of the conduct set forth in the original pleading; (2)
the party to be brought in must have received such notice that it
will not be prejudiced in maintaining its defense; (3) that party
must or should have known that, but for a mistake concerning
identity, the action would have been brought against it; and (4)
the second and third requirements must have been fulfilled within
the prescribed limitations period.[ [Fn. 17]]

We have never disavowed our reliance on Schiavone's equation of the
statutory limitations period with the language "the period provided
by law for commencing the action."  Indeed, Siemion approvingly
cites Schiavone and quotes the same language we quoted in Farmer.
[Fn. 18] 
          It seems unlikely the court in Siemion intended to hold
that the time for commencing suit is enlarged by the service grace
period, given that it did not cite Rule 4(j) or discuss the service
grace period. 
     E.   Schiavone v. Fortune
          Because Federal Rule of Civil Procedure 15(c) was, until
its amendment in 1991, identical to our Rule 15(c), federal
interpretation of the unamended federal rule provides useful
guidance.  Until 1986, there was a dispute in the federal courts
concerning the meaning of Rule 15(c)'s qualifying language -- that
notice must have been received "within the period provided by law
for commencing the action."
          Some courts ruled that notice had to be
received before the statute of limitations had run.  To rule
otherwise arguably would have deprived the new party of the right
to invoke the statute of limitations defense and that might raise
a question of procedural due process.  Other courts noted that the
rule was satisfied as long as the action was filed within the
statutory period and notice was accomplished within the time
allowed for service of process.[ [Fn. 19]]

That dispute, however, was resolved when the Supreme Court decided
Schiavone v. Fortune. [Fn. 20]  As explained in a leading treatise:
          Justice Blackmun, writing for the majority,
concluded that notice must be received within the statute of
limitations and it is not sufficient to find that notice is given
within the time for service.  This conclusion, he noted, was
required by the "plain language"of Rule 15(c).  Further, he
acknowledged 

               . . . there is an element of
arbitrariness here, but that is a characteristic of any limitations
period.  And it is an arbitrariness imposed by the legislature and
not by the judicial process.[ [Fn. 21]]

          The result reached in Schiavone was criticized by
commentators. [Fn. 22]  Nonetheless, the federal courts, including
the Supreme Court, adhered to Schiavone's reading of Federal Civil
Rule 15(c) prior to its amendment. [Fn. 23]  We also approvingly
quoted from Schiavone in Farmer and Siemion. [Fn. 24]  Our court
today disagrees with the six-justice majority in Schiavone.  In
interpreting our rules, we are certainly not bound by the federal
courts' interpretations of their rules.  But because the plain
language which convinced the Supreme Court is also found in our
rule, I would place significant weight on that Court's reasoned
result.
          Nonetheless our opinion today does invoke the federal
experience in another way.  In interpreting Alaska Civil Rule
15(c), our opinion relies on the post-Schiavone amendment of
Federal Civil Rule 15(c). [Fn. 25]  The 1991 amendment rewrote the
federal rule to permit the result the court desires here. [Fn. 26] 
The opinion finds the 1991 amendment to be "further evidence of the
purpose of the rule and that our interpretation is faithful to the
achievement of this purpose."[Fn. 27]  This is problematic.  As a
matter of construction, I would not read an amendment that permits
a particular result to support a pre-amendment interpretation
contrary to the unamended language and its prevailing
interpretation.  That the federal rule was amended suggests that we
should rewrite our rule, not that we should simply reread it. 
Finally, for reasons discussed above, I think the court errs in
assuming that Rule 15(c) has an underlying purpose that justifies
the interpretation reached today.
     F.   Reliance on the Service Grace Period
          Apart from my substantive disagreement with relying on
the service grace period, it seems inappropriate to rely on it
here.  This issue was not preserved in the superior court. [Fn. 28] 
West's opening and closing appellate briefs say nothing about Rule
4(j) or the 120-day service grace period. [Fn. 29]  West instead
asserts other theories -- correctly rejected by the court here --
on which her amended complaint should be considered timely. 
Because West did not even raise the issue, it is not surprising
that Buchanan's appellee's brief does not discuss the issue,
either.  Buchanan could have persuasively argued that the service
grace period and Rule 4(j) have no application here.  The court's
opinion consequently relies on a rule not cited by appellant in
support of a rationale not advanced by appellant to reach a result
that is not justified by our rules as written or by our past
decisions.
     G.   Conclusion
          I agree with the court's resolution of the issues raised
by West.  But I disagree with the court's resolution of the issue
not raised by West, and would therefore affirm the judgment of
dismissal.



                            FOOTNOTES


Footnote 1:

     See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 2:

     Id.


Footnote 3:

     AS 22.20.022, by its terms, permits only "a party or a party's
attorney"to peremptorily challenge a judge.
      


Footnote 4:

     West also refers us to Civil Rule 77(k), which deals with  the
time limits within which motions may be reconsidered.  This
reference is off-point.  The motion for summary judgment considered
by Judge Steinkruger did have an issue in common with the motion to
amend considered by Judge Beistline.  But Judge Steinkruger did not
reconsider the motion to amend.  Civil Rule 77(k) is inapplicable.


Footnote 5:

     594 P.2d 30 (Alaska 1979).


Footnote 6:

     Id. at 36 (quoting Messinger v. Anderson, 225 U.S. 436, 444
(1912)).


Footnote 7:

     Id.


Footnote 8:

     See id.


Footnote 9:

     Id. at 36.


Footnote 10:

     Id.


Footnote 11:

     Alaska R. Civ. P. 15(c) (emphasis added).


Footnote 12:

     See, e.g., Van Alen v. Anchorage Ski Club, Inc., 536 P.2d 784,
787 (Alaska 1975) ("We have repeatedly stated that Alaska's
discovery rules should be given a liberal interpretation in order
to effectuate the underlying purpose of those rules.").


Footnote 13:

     Lawrence A. Epter, An Un-Fortune-Ate Decision: The Aftermath
of the Supreme Court's Eradication of the Relation-Back Doctrine,
17 Fla. St. U. L. Rev. 713, 718 (1990) (discussing the federal
counterpart to Alaska Civil Rule 15); see also Laurie Helzick,
Note, Looking Forward: A Fairer Application of the Relation Back
Provisions of Federal Rule of Civil Procedure 15(c), 63 N.Y.U. L.
Rev. 131, 140 (1988) ("Relation back was developed in order to
liberalize the rules of pleading for the plaintiff without
contravening the policies behind the statute of limitations.")
(discussing the federal counterpart to Alaska Civil Rule 15).


Footnote 14:

     See Pedersen v. Zielski, 822 P.2d 903, 907 (Alaska 1991).


Footnote 15:

     Alaska R. Civ. P. 15(c).


Footnote 16:

     609 P.2d 15 (Alaska 1980).


Footnote 17:

     See id. at 17-18.


Footnote 18:

     See id. at 20-21.


Footnote 19:

     See id.  At the time of Adkins, the federal rule was virtually
identical to Alaska's Rule 15(c).  Compare Alaska R. Civ. P. 15(c)
with Fed. R. Civ. P. 15(c) (1991) (amended 1991).


Footnote 20:

     Id. at 21.


Footnote 21:

     See id. at 21.


Footnote 22:

     See Dissent at 21.


Footnote 23:

     825 P.2d 896 (Alaska 1992).   


Footnote 24:

     Id. at 900 (emphasis added).


Footnote 25:

     See Alaska R. Civ. P. 4(j).


Footnote 26:

     477 U.S. 21 (1986).


Footnote 27:

     See id. at 30-31.


Footnote 28:

     Id.


Footnote 29:

     Epter, supra note 13, at 735 ("If the Court's characterization
of this language were accurate, Schiavone would never have been
decided by the Supreme Court: the conflicting and inconsistent
interpretation of that language is precisely what led to the grant
of certiorari.").


Footnote 30:

     Schiavone, 477 U.S. at 37 (Stevens, J., dissenting).


Footnote 31:

     See Dissent at 24.


Footnote 32:

     See, e.g., Robert D. Brussack, Outrageous Fortune: The Case
for Amending Rule 15(c) Again, 61 S. Cal. L. Rev. 671, 672-73
(1988); Epter, supra note 13, at 727-35; Helzick, supra note 13, at
148-49.


Footnote 33:

     Epter, supra note 13, at 731-33.


Footnote 34:

     Ritchie v. Grand Canyon Scenic Rides, 799 P.2d 801, 805 (Ariz.
1990); see also Brown v. Winn-Dixie Montgomery, Inc., 669 So. 2d
92, 95-97 (Miss. 1996) (noting that Mississippi courts were "not
bound to blindly apply the observation or interpretation [of Rule
15] by the federal court"); Hughes v. Water World Water Slide,
Inc., 442 S.E.2d 584, 586 (S.C. 1994) (declining to follow
Schiavone even though South Carolina had not adopted the 1991
amendment to Fed. R. Civ. P. 15(c) setting the time allowed for
changing the defendant in accord with federal law rather than state
statutes of limitations).


Footnote 35:

     Ritchie, 799 P.2d at 808.


Footnote 36:

     Although the dissent complains that we are deciding this issue
on a ground not argued by the parties, Buchanan challenged Judge
Beistline's reliance on our suggestion in Siemion that a complaint
may be amended to include a defendant who has "had notice of the
institution of the suit within the same time he would have known
had he been a properly named defendant."  Moreover, the
applicability of the Schiavone rule to this case was argued at
length by Buchanan in her brief to this court.  And as the
Schiavone dissent and the commentators who criticize the Schiavone
majority opinion recognize, a properly named defendant may not
receive notice of an action until service, which under both the
Alaska and Federal Rules may take place as long as 120 days after
filing.  Thus, although the parties do not specifically refer to
Civil Rule 4(j) in their briefs, its applicability to the issue
before us is manifest.


Footnote 37:

     Schiavone, 477 U.S. at 38 (Stevens, J., dissenting).


Footnote 38:

     Compare Fed. R. Civ. P. 15(c) with Fed. R. Civ. P. 15(c)
(1991) (amended 1991).




                       FOOTNOTES (Dissent)


Footnote 1:

     Siemion v. Rumfelt, 825 P.2d 896, 899 n.3 (Alaska 1992)
(quoting McCutcheon v. State, 746 P.2d 461, 469 n.16 (Alaska
1987)).


Footnote 2:

     See Alaska R. Civ. P. 3(a) ("A civil action is commenced by
filing a complaint with the court.").


Footnote 3:

     Op. at 15.


Footnote 4:

     Op. at 10.


Footnote 5:

     See, e.g., Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d 763,
766-69 (Alaska 1987) (discussing conditions under which Alaska
courts will delay or toll running of statutory limitations
periods).


Footnote 6:

     609 P.2d 15 (Alaska 1980).


Footnote 7:

     See Op. at 9.  


Footnote 8:

     609 P.2d at 21. 


Footnote 9:

     825 P.2d 896 (Alaska 1992).


Footnote 10:

     See Op. at 9-10. 


Footnote 11:

     Siemion, 825 P.2d at 900.


Footnote 12:

     See id.


Footnote 13:

     See id. at 899 n.3.


Footnote 14:

     788 P.2d 43 (Alaska 1990).  


Footnote 15:

     477 U.S. 21 (1986).


Footnote 16:

     See 788 P.2d at 49 (emphasis added).


Footnote 17:

     Id. (quoting Schiavone, 477 U.S. at 29) (emphasis added).


Footnote 18:

     See Siemion, 825 P.2d at 899.  


Footnote 19:

     6A Charles A. Wright, et al., Federal Practice and Procedure
sec. 1498, at 107-13 (1990) (footnotes omitted).  


Footnote 20:

     See 477 U.S. at 30-31.


Footnote 21:

     Wright, at 113-14 (footnote omitted) (quoting Schiavone, 477
U.S. at 31).  


Footnote 22:

     See id. at 114.  


Footnote 23:

     See id.


Footnote 24:

          See Farmer, 788 P.2d at 49; Siemion, 825 P.2d at 899. 


Footnote 25:

     See Op. at 14.


Footnote 26:

     See Fed. R. Civ. P. 15 advisory committee's note (1991).


Footnote 27:

     Op. at 14.


Footnote 28:

     See Rowen v. Rowen, 963 P.2d 249, 255 (Alaska 1998) (refusing
to consider father's eligibility for "visitation credit"to reduce
child support owed when father failed to raise issue at trial);
Brooks v. Brooks, 733 P.2d 1044, 1053 (Alaska 1987) (stating that
matters not raised at trial will not be considered on appeal).


Footnote 29:

     We have consistently held that the failure to argue a point in
a brief constitutes an abandonment of it and we will not consider
it on appeal.  See Petersen v. Mutual Life Ins. Co., 803 P.2d 406,
411 n.8 (Alaska 1990); State v. O'Neill Investigations, Inc., 609
P.2d 520, 528 (Alaska 1980); Lewis v. State, 469 P.2d 689, 691 n.2
(Alaska 1970).