Fictitious Parties Practice - Relation Back


Ex parte McCoy, et al., [Ms. 1190403, Jan. 22, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Mitchell J.; Parker, C.J., and Bolin, Shaw, Wise, Bryan, and Mendheim, JJ., concur; Sellers, J., concurs in the result; Stewart, J., dissents) issues a writ of a mandamus directing the Jefferson Circuit Court to dismiss defendant police officers substituted for fictitious parties in a wrongful death action arising from a police case where the fleeing suspect crashed into the plaintiff’s decedent. Ms. *2. The Court holds that Griffin was unable to invoke Rule 9(h) and the relation back principle of Rule 15(c) as to the officers substituted after the statute of limitations expired

[W]hile we may take Griffin at his word that he did not actually know the identities of the defendant officers when he filed his original complaint, that actual ignorance does not entitle him to rely upon Rules 9(h) and15(c) and to avoid the bar of the statute of limitations if he nonetheless should have known of their identities based on the facts available to him at the time.

A review of the materials submitted to this Court demonstrates that Griffin should have been able to identify the defendant officers by name before filing his original complaint. The notices of claim filed with Trafford and Warrior establish that, within three months of Olvey’s death, his estate had retained legal counsel and had decided to pursue legal action against Trafford and Warrior based on their police officers’ allegedly negligent pursuit of Wright. But there is nothing in the materials filed with this Court indicating that any steps were taken to identify those officers over the next 21 months before Griffin’s original complaint was filed. Rather, it appears that Griffin never asked Trafford and Warrior to identify the officers who were on duty the night in question before initiating this action – despite the fact that he had known for almost two years that Trafford and Warrior employed officers who had taken part in the pursuit of Wright.

Ms. **12-13.

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