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CIVIL PROCEDURE - FICTITIOUS PARTIES, RELATION BACK OF AMENDMENTS - EX PARTE NAIL

In Ex parte Nail, [Ms. 1110742, Aug. 16, 2012] __ So. 3d __ (Ala. 2012), the Supreme Court denied a petition for a writ of mandamus seeking to direct a circuit court to vacate its order denying nurses' motions for summary judgment, which contended that plaintiffs failed to use due diligence in identifying the nurses who participated in responding to a Code at a hospital. Denying the nurses' petition, the Supreme Court held that the due diligence required to invoke the relation back principles of Ala.R.Civ.P. 9(h) and 15(c) "means ordinary, rather than extraordinary, diligence." Ms. at * 17 (emphasis in original). Because the plaintiffs filed interrogatories seeking to identify the nurses who participated in the Code when they filed their complaint within the statute of limitations, the "nurses have not produced undisputed evidence of the absence of due diligence on the [plaintiffs'] part. Consequently, they have failed to show that they are entitled to the writ of mandamus they seek." Ms. at * 18.
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