Fictitious Party Practice - Relation Back - Mandamus


Ex parte American Sweeping, Inc., [Ms. 1170461, Aug. 31, 2018] __ So. 3d __ (Ala. 2018). This 7-2 decision by Justice Sellers issues a writ of mandamus to the Baldwin Circuit Court directing the court to dismiss the underlying action against American Sweeping, Inc. (“ASI”) as time-barred.

The claims at issue arose from a May 22, 2014, crash that involved a tractor-trailer colliding with the rear of a “buffer vehicle” following an ASI street sweeper on the Interstate 65 bridge crossing the Mobile-Tensaw River Delta. Ms. *2. A subsequent collision in which a second tractor-trailer collided with the first tractor-trailer resulted in an explosion and substantial damage to the bridge. ALDOT brought an action against TKS Trucking and the estate of its driver, who was killed in the crash, to recover the cost of repairs made to the bridge. Ms. *3. Sanders, the driver of the second tractor-trailer, and his wife filed individual complaints in intervention asserting claims against the same defendants for personal injuries and loss of consortium. Ibid.

On May 17, 2016, five days before expiration of the statute of limitations, the Sanderses amended their complaints in intervention to assert claims against fictitiously-named defendants whose conduct allegedly contributed to the tractor-trailer accident involving Mr. Sanders. Ibid. The Sanderses subsequently amended their complaint on August 31, 2017, to substitute ASI for a fictitiously-named defendant. Ms. *3-4.

The Court held that the amendment adding ASI did not relate back because the Sanderses did not exercise due diligence to learn ASI’s identity. The Court concluded that the materials before the Court indicated the Sanderses made little to no effort to research the cause of the traffic on the bridge coming to a complete stop. The Court cited the fact that the Uniform Traffic Crash Report identified the driver of the ASI buffer vehicle and listed ASI as its owner. Ms. *7. The Court further held that “the most compelling information concerning the Sanderses’ knowledge of ASI’s identity comes from Jonathan Brown, an eyewitness to the tractor-trailer accident. Brown testified in his deposition, dated August 17, 2016, that he telephoned the Sanderses within a week after the tractor-trailer accident and at least two other times in 2014 to inquire about Mr. Sanders and that they all talked about the ‘accident that caused [Mr. Sanders’s] accident [“the street sweeper and the guy falling asleep at the wheel.’]” Ms. *10.

A dissent by Justice Shaw joined by Justice Bryan would have declined to reach the merits of the mandamus petition because of ASI’s failure to provide the Court with a copy of its motion to dismiss and resulting lack of compliance with Rule 21(a)(1)(E), Ala. R. App. P., requiring a petitioner to include “copies of any order or opinion or parts of the record that would be essential to an understanding of the matter set forth in the [mandamus] petition.” Ms. *13.

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