Childers v. Carter-Burgess, Inc.

Citations: 7 So. 3d 999; 2008 Ala. LEXIS 218Docket: 1070877

Court: Supreme Court of Alabama; October 17, 2008; Alabama; State Supreme Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Hensel Phelps Construction Company has petitioned the court for a writ of mandamus to vacate a February 14, 2008, order that denied its motion to dismiss a claim by Thomas Childers. The court has granted the petition and issued the writ. 

The case arose from an accident on October 28, 2003, when Childers, while employed by Wal-Mart, injured his leg during maintenance work at a Wal-Mart distribution center in Pike County. Childers filed a complaint on October 27, 2005, against multiple parties, including Carter-Burgess, Inc., and Nixon, Laird Architects/Engineers, just before the statute of limitations expired. The complaint included fictitious defendants, with the intention to amend their names later.

Childers mailed the summons and complaint to addresses believed to be for Carter-Burgess and Nixon, Laird, but both were returned undelivered on November 15, 2005. Childers successfully served his supervisor, Murray, who filed a motion to dismiss on November 28, 2005. Childers requested multiple postponements of the hearing to serve Carter-Burgess and Nixon, Laird, citing difficulties due to Carter-Burgess's numerous locations.

Wal-Mart intervened in the case on February 27, 2006, and Childers eventually served Carter-Burgess's registered agent on July 5, 2006. Subsequently, Carter-Burgess and Nixon, Laird moved to dismiss based on untimely service. The trial court denied this motion on January 9, 2007, allowing Childers 30 days to perfect service, which he did on February 5, 2007. Following service on Nixon, Laird, discussions revealed Hensel Phelps’s involvement, leading to further discovery motions from Carter-Burgess, which the trial court compelled Childers to respond to by May 8, 2007.

Childers responded to a discovery request from Carter-Burgess on June 7, 2007, following Carter-Burgess's notice on May 10, 2007, to serve subpoenas on nonparties, including Hensel Phelps. A nonparty subpoena was served on Hensel Phelps on June 6, 2007. On September 13, 2007, Childers filed an amended complaint adding Hensel Phelps as a defendant, alleging negligence and/or wantonness against all defendants. Notably, Childers did not file formal discovery prior to this amendment. Hensel Phelps moved to dismiss the claim on October 31, 2007, citing the expiration of the statute of limitations, but Childers did not respond. The trial court denied the motion on February 14, 2008, finding no sufficient grounds for dismissal. Hensel Phelps then sought a writ of mandamus, establishing the criteria for such a writ: a clear legal right, an imperative duty with refusal, lack of an adequate remedy, and proper court jurisdiction. 

The key legal question was whether the trial court abused its discretion in denying the motion to dismiss, specifically regarding the relation-back doctrine under Rule 9(h) and Rule 15(c)(4) of the Alabama Rules of Civil Procedure. These rules allow for the substitution of a fictitiously named defendant if the plaintiff was unaware of the true identity of the defendant at the time of the original complaint. For the relation-back principle to apply, the plaintiff must have stated a valid cause of action against the fictitious party in the original complaint and must have been ignorant of the true party's identity.

In Crawford v. Sundback, the Alabama Supreme Court established that a plaintiff must exercise due diligence to ascertain the identity of fictitiously named defendants both prior to and after filing a complaint. The relation-back principle under Rule 15(c) requires that a plaintiff act reasonably diligently to identify and amend the complaint with the true names of these defendants. Hensel Phelps argued that Childers failed to demonstrate due diligence in identifying its true identity and did not amend the complaint in a reasonable timeframe after discovering it. Childers contended that the methods he used to investigate the identity of the fictitious parties were not limited to formal discovery, asserting that Hensel Phelps could not prove he took no action. However, the court noted that 23 months passed between the original and amended complaints, during which Childers appeared to conduct minimal inquiry and did not engage in formal discovery, which is crucial for showing due diligence. The court also highlighted that Childers waited seven months after identifying Hensel Phelps to amend his complaint, indicating a lack of diligence. The court reiterated that cases with similar or lesser activity have been found insufficient to establish due diligence, suggesting that Childers could not rely on the relation-back doctrine to extend the statute of limitations.

In Crowl v. Kayo Oil Co., the court determined that the plaintiff's inaction for over a year and a half to identify the defendant indicated a lack of due diligence. Similarly, in Jones v. Resorcon, Inc., the plaintiff was found lacking for not seeking a court order to inspect a fan to determine the identity of its fictitiously named manufacturer. Ex parte Klemawesch revealed that a two-year delay in initiating discovery after filing a complaint also constituted a failure in due diligence. Bowen v. Cummings emphasized that plaintiffs must comply with Rules 9(h) and 15(c)(4) of the Alabama Rules of Civil Procedure when identifying fictitious parties, underscoring that fictitious party practice is not meant for mere convenience. In the case at hand, Childers failed to adhere to these rules, delaying seven months after learning Hensel Phelps’s identity before amending his complaint. Consequently, the petition for a writ of mandamus was granted, directing the trial court to dismiss Hensel Phelps from Childers's claim. Childers's defense regarding the time taken to serve Carter-Burgess and Nixon, Laird was undermined by evidence indicating that he contributed significantly to the delay in service.