concurring.
I agree with the opinion of the court that the case stood dismissed by operation of law under Neb. Rev. Stat. § 25-217 (Cum. Supp. 2006) and that once the case stood dismissed, Reid’s subsequent motion to amend and relate back was a nullity. I write separately to expand on additional reasons why Reid’s invocation of relation back would be unavailing and to point out that the version of Fed. R. of Civ. R 15(c) adopted by the Legislature is less forgiving than the current version of rule 15(c) adopted by the federal courts.
In his brief, counsel for Donald correctly notes that in adopting Neb. Rev. Stat. § 25-201.02 (Cum. Supp. 2006), Nebraska adopted language from a version of rule 15(c) of the Federal Rules of Civil Procedure governing relation back that has since been superseded. In 1991, Fed. R. of Civ. P. 15(c) was modified, and it presently allows for an amendment to a complaint to relate back to the original filing date of the lawsuit if the party added by the amendment received notice of the lawsuit during the period allowed for service of process, even if that time period extends beyond the statute of limitations. 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1107 (3d ed. 2002 & Supp. 2007). However, because Nebraska has adopted language derived from the previous rather than the current version of Fed. R., of Civ. P. 15(c), even if Reid’s relation-back argument had application, it would be unavailing.
In addition, there is a more fundamental reason in relation-back jurisprudence why Reid’s motion to amend by invoking relation back was inapplicable. Relation back is a concept that facilitates amendments to pleadings, and relation back is inapplicable to a lawsuit that has already been dismissed. In order for an amendment to relate back to the original filing date, there must be an action pending at the time the proposed amendment *723is filed. If a lawsuit has already been dismissed, there is nothing for a subsequent amendment to relate back to. See, Marsh v. Soares, 223 F.3d 1217, 1219 (10th Cir. 2000) (stating that subsequent pleading “ ‘cannot relate back to a previously filed petition that has been dismissed . . . because there is nothing for the [pleading] to relate back to’”); Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999) (stating that because “original . . . action was dismissed . . . there was no pending petition to which [the new pleading] could relate back or amend”). See, also, Hayes v. U.S., 73 Fed. Cl. 724, 729 (2006) (stating that “[b]ecause . . . case was dismissed] . . . present claim cannot relate back to that dismissed case”); Holloway v. U.S., 60 Fed. Cl. 254 (2004) (stating that subsequent pleading could not relate back to earlier complaint that had been dismissed); Frazer v. U.S., 49 Fed. Cl. 734, 736 (2001) (stating that once complaint had been dismissed, subsequent pleading “st[ood} alone. And standing alone, it is time-barred”). Reid’s action stood dismissed by operation of law on March 28, 2005, and Reid did not file her motion to amend until May 2. Because Reid’s lawsuit had been dismissed, there was nothing for her proposed amendment to relate back to.
If the Legislature was to revise § 25-201.02 to provide language similar to the current version of rule 15(c) of the Federal Rules of Civil Procedure, a plaintiff seeking to amend and take advantage of relation back who files a motion after the statute of limitations has run but during the period allowed for service, and who otherwise meets statutory requirements, would be able to amend the complaint. Revisions to § 25-201.02 could marginally enhance the utility of statutory relation back in Nebraska.
McCormack, J., joins in this concurrence.