(251) 299-0101

TIMELINESS OF MANDAMUS PETITION - RELATION BACK OF AMENDMENT ADDING PARTY DEFENDANT AFTER EXPIRATION OF STATUTE OF LIMITATIONS: EX PARTE PROFIT BOOST MARKETING, INC.

Ex parte Profit Boost Marketing, Inc., [Ms. 1160326, Dec. 1, 2017] __ So. 3d __ (Ala. 2017). This unanimous decision by Justice Shaw (Stuart, C.J., and Bolin, Parker, Main, Wise, Bryan, and Sellers, JJ., concur) issues a writ of mandamus to the Marshall Circuit Court directing it to dismiss as a party defendant HVCM based upon expiration of the statute of limitations. Even though the plaintiff’s original complaint included fictitious parties, when the plaintiff sought to add HVCM, it did not substitute HVCM for a fictitious party, rather it added HVCM as a defendant. Ms. *16.

The Court first addressed the plaintiff’s contention that HVCM’s mandamus petition was untimely. The Court noted that the mandamus petition was filed some four months after the trial court had denied HVCM’s prior motion to dismiss based upon insufficiency of service of process as well as expiration of the statute of limitations and lack of personal jurisdiction. The Court noted that HVCM had included in its mandamus petition a statement pursuant to Ala. R. App. P. 21(a)(3) stating good cause for its delay in filing its mandamus petition “because it was reasonable to require [the plaintiff] to perfect service upon [HVCM] before it appealed lack of personal jurisdiction.” Ms. *13.

The Court concluded that the amendment adding HVCM did not relate back to the filing of the original complaint, because, as plaintiff conceded, plaintiff did not invoke the provisions of Rule 9(h) by substituting HVCM for a fictitious party listed in the original complaint. Ms. *23. The Court held relation back was not available under Ala. R. Civ. P. Rule 15(c) which allows relation back of an amendment filed after expiration of the statute of limitations if filed within 120 days of the commencement of the action and the party added “‘(A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits and (B) knew or should have known that, but for mistake concerning the identity of the proper party, the action would have been brought against the party ....’” Ms. *18, quoting Rule 15(c), Ala. R. Civ. P. Relation back under Rule 15(c)(3) was clearly not available, the Court reasoned, because “nothing in the materials before [the Court] indicates that HVCM either had notice of the institution of the action or should have understood that HVCM was, in the absence of mistake, an intended defendant.” Ms. *21-22.

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