Relation Back Unavailable Where Complaint Did Not Name Fictitious Parties

Ex parte Dail, [Ms. 1190846, Apr. 23, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Stewart, J.; Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, and Mitchell, JJ., concur) issues a writ of mandamus to the Montgomery Circuit Court directing dismissal of Jordan’s claims against Savannah and Cindy Dail as time barred. Jordan added the Dails to the action after the 2-year statute of limitations had expired but Jordan had not included fictitious parties in her original complaint. Ms. *2.

The Court explains that where plaintiff adds a new defendant rather than substituting a defendant for an incorrectly named defendant or a fictitiously named defendant, relation back under Rule 15(c)(3) is unavailable because Rule15(c)(3) “applies to a plaintiff’s attempt to amend in order to correctly identify a defendant included in or contemplated by the plaintiff’s original complaint.” Ms. *8, quoting Ex parte Profit Boost Marketing, Inc., 254 So. 3d 862 (Ala. 2017).

The Court also emphasizes that “even if Jordan had substituted the Dails for fictitiously named defendants, Jordan’s amended complaint would not relate back to the filing of the original complaint because Jordan knew the identities of the Dails and of their involvement in the accident but neglected her duty to investigate to determine their potential liability for her injury before the limitations period expired.” Ms. *13.

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