DANA M. CROSSMAN, Appellant/Plaintiff v. VAN DOLAN MOORE; and VAN DOLAN MOORE II, INDIVIDUALLY, Appellees/Defendants, 115 N.C. App. 372

ARNOLD, Chief Judge. Plaintiff contends the trial court erred in refusing to allow relation back of the amended complaint. Rule 15(c), which provides when an amended pleading will relate back, reads as follows: (

c) Relation back of amendments. — A claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading. N.C. Gen. Stat. § 1A-1, Rule 15(c) (1990). Admittedly, the language of the Rule provides very little help in deciding its application in misidentification cases. Case law, however, does supply some necessary guidance. In Schiavone v.

Fortune, involving a similar problem, the United States Supreme Court was called upon to interpret Federal Rule 15(c). Schiavone v. Fortune, 477 U.S. 21, 91 L. Ed. 2d 18 (1986). In its analysis, the Court set forth a four factor test to determine when an amended pleading adding a party-defendant after the expiration of the statute of limitations would relate back. Id.

Under the test, an amended pleading will relate back when: 1. the basic claim arises out of the conduct set forth in the original pleading, 2. the party to be brought in receives such notice that it will not be prejudiced in maintaining its defense, 3. the party knows 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 are fulfilled within the prescribed limitations period. Id. at 29, 91 L. Ed. 2d at 27.

The plaintiff in Schiavone argued that the prescribed limitations period, a key factor in the test, meant the time allowed by Rule 4 for service of process. The Supreme Court disagreed, stating that “[w]e are not inclined ... to temper the plain meaning of the language by engrafting upon it an extension of the limitations period equal to the asserted reasonable time, inferred from Rule 4, for the service of a timely filed complaint.” Id. at 30, 91 L. Ed. 2d at 28. In 1989, this Court adopted Schiavone’s four factor test, as well as the Court’s determination that the relevant period was the statute of limitations.

Ring Drug Co. v. Carolina Medicorp Enterprises, 96 N.C. App. 277, 385 S.E.2d 801 (1989); see also Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, cert. denied, 318 N.C. 511, 349 S.E.2d 873 (1986) (utilizing the test without formal adoption). Many, however, strongly criticized Schiavone, viewing it as an unwarranted construction contrary to the liberalized pleading policy of Rule 8. Diane S. Kaplan and Kimberly L. Craft, Time Warps and Identity Crises: Muddling Through the Misnomer/Misidentification Mess, 26 J. Marshall L. Rev. 257, 289-290 n. 164 (1993); see also Note, Schiavone v.

Fortune: Notice Becomes a Threshold Requirement for Relation Back under Federal Rule 15(c), 65 N.C.L. Rev. 598 (1987) (arguing that Schiavone creates a double standard for defendants). As a result of these and similar criticisms, Congress revised Federal Rule 15(

c) in 1991 to change the result in Schiavone. As amended, Federal Rule 15(

c) requires that the newly named defendant receive notice or become aware of the misidentification within the prescribed period for service of process under Rule 4(m). Fed. R. Civ. P. 15(c)(3). Plaintiff argues that, because we adopted the federal

interpretation of Rule 15(

c) created in 1986, we must now adopt the changes made in 1991 and overrule our decision in Ring Drug. While we recognize that Schiavone, and thus Ring Drug, represent a strict construction of Rule 15(

c) that should be reexamined, we are not in a position to change Rule 15(c), nor may we overrule Ring Drug. In fact, while Federal Rule 15(

c) has been amended, our version of Rule 15(

c) remains unchanged and it is not a function of this Court to legislate. Furthermore, a subsequent panel of this Court is bound by the decision of another panel on the same issue until it has been overturned by our Supreme Court. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989). Ring Drug remains good law. As a result, any changes must come from either the Legislature or the Supreme Court and, at this time, we are bound by our decision in Ring Drug. Applying the test to the facts of this case, we affirm the trial court’s order.

The third factor, requiring that the party knew or should have known that, but for a mistake concerning identity, the action would have brought against him, all within the period prescribed by law, is not met. Moore was served in April of 1992, three and a half months after the expiration of the statute of limitations. Clearly, Moore II could not have notice prior to the expiration of the statute of limitations. Accordingly, the order of the trial court is Affirmed. Judges GREENE and McCRODDEN concur.