Mandamus Review of Order Granting Motion to Dismiss - Right to Trial by Jury - Amended Complaint


Ex parte Lindsey, [Ms. 1171172, Jan. 10, 2020] __ So. 3d __ (Ala. 2020). The Court (Mitchell, J.; Parker, C.J., and Bolin, Shaw, Bryan, Mendheim and Stewart, JJ., concur; Sellers, J., concurs in the result) denies in part and grants in part a petition for writ of mandamus filed by the plaintiff seeking to vacate the Dallas Circuit Court’s order dismissing certain of plaintiff’s claims and striking her jury demand with respect to new issues raised in a second amended complaint.

“A writ of mandamus will not issue absent ‘the lack of another adequate remedy.’” Ms. *6, quoting Ex parte Utilities Board of Foley, 265 So. 3d 1273, 1279 (Ala. 2018). “Because an adequate remedy is available on appeal, we have held that ‘the denial of a motion to dismiss or a motion for summary judgment is not reviewable by a petition for writ of mandamus .... This principle applies with equal force to the granting of a motion to dismiss. The granting of a motion to dismiss is adequately remedied by a direct appeal or by an interlocutory appeal under Rule 54(b), Ala. R. Civ. P.” Ms. *7.

In regard to the order striking the jury demand, the Court noted Alabama’s strong public policy favoring trial by a jury. Ms. *8. “‘An amended or supplemental pleading sets in motion the 30-day time period for demanding of a trial for new issues raised in that pleading.’” Ms. *8, quoting 1 Champ Lyons, Jr., Alabama Rules of Civil Procedure § 38.6 (3d ed. 1996) (some internal quotation marks omitted). The Court held that even though the plaintiff “waived her right to a jury trial on the original negligence theory underlying her legal-services-liability claim, she is entitled to a jury trial on her new, alternative theor[ies] ...” asserted in her second amended complaint. Ms. *11.

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