VENUE - EX PARTE HAMPTON INS. AGENCY AND GINGER SPENCER
In
Ex parte Hampton Ins. Agency and Ginger Spencer, [Ms. 1101211, Nov. 18, 2011] __ So. 3d __(Ala. 2011), the Alabama Supreme
Court held that Ala. Code ¤ 6-3-2-(a)(3), the venue provision governing
individuals, is the only venue provision that applies to a defendant that
is an unincorporated entity operating as a sole proprietorship. Therefore,
in an action against a sole proprietorship, venue is proper either "in
the county of [the sole proprietorship's] residence or in the county
in which the act or omission complained of. . .occurred." As a result,
the Court held that proper venue in the case was Tuscaloosa County rather
than Hale County, where it was originally filed. The plaintiff argued
that her substitution of new defendants for fictitiously named parties
related back to the original complaint and therefore made venue proper
in Hale County. The Court acknowledged that amendments to the complaint
substituting the true name of a fictitiously named party should be considered
in determining whether venue is proper at the commencement of the action. See
Ex parte Lugo de Vega, 65 So. 3d 886, 892 (Ala. 2010). However, the Court held that the plaintiff's
claim that she was ignorant of the identities of additional defendants,
as required by Rule 9(h) of the Alabama Rules of Civil Procedure, was
"untenable." Furthermore, the Court held that the plaintiff's
inclusion of
new defendants in the amended complaint was not a
substitution of the true names of fictitiously named defendants, stating: "In fact, we note both the absence of any language in the
amended complaint expressing the alleged intended 'substitution'
and the fact that, despite the purported substitution, fictitiously named
defendants A-C remained as parties in [Plaintiff's] amended complaint." See
Ex parte Overstreet, 748 So. 2d 194, 197 (Ala. 1999) (holding "that the addition of a
new party, as distinguished from the substitution of a party for a previously
named fictitious party, would not relate back for purposes of determining
proper venue."). For all these reasons, the Court held that Tuscaloosa
County was the only proper venue.
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