MANDAMUS & FICTITIOUS PARTIES/RELATION BACK OF AMENDMENTS - EX PARTE LUCAS
Ex parte Lucas, [Ms. 1150382, June 10, 2016] __ So. 3d __ (Ala. 2016). The Court grants a petition for a writ of mandamus and directs the Shelby Circuit Court to vacate its order denying a defendant's motion for a summary judgment and to enter a summary judgment in her favor based upon an untimely attempt to amend a complaint to substitute for a fictitious party. Citing Ex parte Nicholson Mfg., Ltd., 182 So. 2d 510 (Ala. 2015), the Court reiterates several important principles of fictitious party practice:
Ignorance of the new defendant's identity is no excuse if the plaintiff should have known the identity of that defendant when the complaint was filed. ... [Ms. *14]
... Simply lacking information that discloses an unidentified defendant does not necessarily excuse the failure to exercise due diligence. [Ms. *18]
Due diligence in identifying an unknown defendant should lead a party to seek out and to consult readily and publicly available documents of importance regarding a standard investigation of an accident forming the basis of a claim. [Id.]
Because the identity of the driver of a third vehicle in a rear-end-chain-collision could have been determined from obtaining publicly available records, i.e., a Uniform Traffic Accident Report, plaintiff failed to exercise "due diligence" prior to filing the complaint and therefore her attempt to amend her complaint to substitute for fictitious parties beyond the two-year statute of limitations was impermissible.