May 29, 2015
Ex parte Nicholson Manufacturing Limited
KyKenKee, Inc., et al. In re: Gerald A. Templeton, as administrator of the Estate of Casimiro Deleon Ixcoy, deceased
(Tuscaloosa Circuit Court, CV-12-901218).
Justice. Stuart, Bolin, Parker, Murdock, Main, Wise, and
Bryan, JJ., concur. Moore, C.J., dissents.
PETITION FOR WRIT OF MANDAMUS
Manufacturing Limited (" Nicholson" ) petitions
this Court for a writ of mandamus directing the Tuscaloosa
Circuit Court to enter a summary judgment in its favor on the
ground that Gerald A. Templeton's substitution of
Nicholson for a fictitiously named defendant was made after
the expiration of the applicable statutory limitations period
and does not " relate back" to the filing of the
original complaint. We grant the petition and issue the writ.
and Procedural History
December 31, 2010, Casimiro Deleon Ixcoy died as the result
of injuries sustained at KyKenKee, Inc., a sawmill where he
was employed. At this sawmill, logs are cut and, by way of an
" in-feed" conveyor, fed into a "
debarker" machine that removes the bark from the logs.
When the debarking process is complete, the logs are carried
on an " out-feed" conveyor to another station,
where they are then cut into boards. The conveyors were
manufactured by Morbark Industries, Inc.; the debarker
machine was manufactured by Nicholson. As Ixcoy was walking
through the debarking area, he was struck on the head by a
160-pound log that fell from a conveyor overhead. He died as
a result of the injury.
the administrator of Ixcoy's estate, retained the
services of an attorney to investigate any potential
wrongful-death claims. On January 5, 2011 -- five days after
the accident -- the attorney sent a letter to KyKenKee,
demanding that evidence regarding the accident be preserved.
Nearly two years later, in December 2012, a second attorney
was hired to assist in filing a complaint.
December 28, 2012, Templeton, through the second attorney,
filed a complaint seeking damages for wrongful death against
several named and fictitiously named defendants. Among other
things, the complaint alleged that the accident that resulted
in Ixcoy's death was a result of negligent, wanton,
willful, and intentional conduct. Additionally, Templeton
sought damages on a products-liability theory.
January 2, 2013 -- two days after the expiration of the
two-year statutory limitations period -- Templeton filed an
amendment to the original complaint seeking to substitute
Nicholson, as the manufacturer of the debarker machine, for
one of the fictitiously named defendants, claiming that
Nicholson was liable as the manufacturer of a defective
product. Nicholson filed an answer and raised the two-year
statute of limitations as an affirmative defense.
Nicholson moved for a summary judgment in its favor. It
argued that its substitution as a defendant after the
expiration of the two-year limitations period did not "
relate back" to the date the original complaint was
filed and that, therefore, the claims against it were
time-barred. In response, Templeton filed an opposition and
requested that the trial court deny Nicholson's
summary-judgment motion. Following a hearing, the trial court
denied Nicholson's motion. Nicholson then petitioned this
Court for a writ of mandamus.
Court will issue a writ of mandamus when the petitioner
shows: " '(1) a clear legal right to the order
sought; (2) an imperative duty upon the respondent to
perform, accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly invoked
jurisdiction of the court.'" Ex parte General
Motors of Canada Ltd., 144 So.3d 236, 238 (Ala. 2013)
(quoting Ex parte BOC Grp., Inc., 823 So.2d 1270,
1272 (Ala. 2001)). This Court generally will not review by a
writ of mandamus a trial court's
denial of a motion for a summary judgment unless one of a
limited number of exceptions apply. The case before us
satisfies one such exception:
" '...In a narrow class of cases involving
fictitious parties and the relation-back doctrine, this Court
has reviewed the merits of a trial court's denial of a
summary-judgment motion in which a defendant argued that the
plaintiff's claim was barred by the applicable statute of
limitations. See Ex parte Snow, 764 So.2d 531 (Ala.
1999) (issuing the writ and directing the trial court to
enter a summary judgment in favor of the defendant); Ex
parte Stover, 663 So.2d 948 (Ala. 1995) (reviewing the
merits of the trial court's order denying the
defendant's motion for a summary judgment, but denying
the defendant's petition for a writ of mandamus); Ex
parte FMC Corp., 599 So.2d 592 (Ala. 1992) (same);
Ex parte Klemawesch, 549 So.2d 62, 65 (Ala. 1989)
(issuing the writ and directing the trial court " to set
aside its order denying [the defendant's] motion to quash
service or, in the alternative, to dismiss, and to enter an
order granting the motion" ). ...'"
Ex parte Mobile Infirmary Ass'n, 74 So.3d 424,
427-28 (Ala. 2011) (quoting Ex parte Jackson, 780
So.2d 681, 684 (Ala. 2000)).
parties do not dispute that a two-year statute of limitations
applies to the claims against Nicholson. The accident that
resulted in Ixcoy's death occurred on December 31, 2010;
Templeton filed his original complaint on December 28, 2012.
The parties likewise do not dispute that on January 2,
2013--the date Templeton attempted to amend the complaint to
substitute Nicholson for one of the fictitiously named
defendants--the two-year limitations period had expired.
9(h), Ala. R. Civ. P., provides:
" When a party is ignorant of the name of an opposing
party and so alleges in the party's pleading, the
opposing party may be designated by any name, and when the
party's true name is discovered, the process and all
pleadings and proceedings in the action may be amended by
substituting the true name."
rule permits a party who is " ignorant of the name of an
opposing party" to identify that party by a fictitious
name. Once the true name of the opposing party is discovered,
the party may amend the pleadings to substitute that true
name. Rule 15(c)(4), Ala. R. Civ. P., provides that such an
amendment shall " relate back to the date of the
original pleading when ... relation back is permitted by
principles applicable to fictitious party practice pursuant
to Rule 9(h)."
" However, the relation back principle applies only when
the plaintiff 'is ignorant of the name of an opposing
party.' Rule 9(h); Harmon v. Blackwood, 623
So.2d 726, 727 (Ala. 1993) ('In order to invoke the
relation-back principles of Rule 9(h) and Rule 15(c), a
plaintiff must ... be ignorant of the identity of that
defendant ....'); Marsh v. Wenzel, 732 So.2d 985
Ex parte General Motors, 144 So.3d at 239.
" 'The requirement that the plaintiff be ignorant of
the identity of the fictitiously named party has been
generally explained as follows: " The correct test is
whether the plaintiff knew, or should have known, or was on
notice, that the substituted defendants were in fact the
parties described fictitiously." Davis v. Mims,
510 So.2d 227, 229 (Ala. 1987)....'"
Ex parte Mobile Infirmary, 74 So.3d at 429 (quoting
Crawford v. Sundback, 678 So.2d 1057, 1060 (Ala.
addition to being ignorant of the fictitiously named
party's identity, the plaintiff has a duty to exercise
" due diligence" in identifying such a defendant.
Ex parte Mobile Infirmary, 74 So.3d at 429;
Crowl v. Kayo Oil Co., 848 So.2d 930, 940 (Ala.
2002). It is incumbent upon the plaintiff to exercise due
diligence both before and after the filing of the complaint.
Ex parte Ismail, 78 So.3d 399 (Ala. 2011). Only if
the plaintiff has acted with due diligence in discovering the
true identity of a fictitiously named defendant will an
amendment substituting such a party relate back to the filing
of the original complaint. Ex parte Mobile
Infirmary, 74 So.3d at 429. Therefore, if at the time
the complaint is filed, a plaintiff knows the identity of the
fictitiously named party or should have discovered that
party's identity, relation back is not permitted and the
running of the statute of limitations is not tolled:
" [A]n amendment substituting a new defendant in place
of a fictitiously named defendant will relate back to the
filing of the original complaint only if the plaintiff acted
with 'due diligence in identifying the fictitiously named
defendant as the party the plaintiff intended to sue.'
Ignorance of the new defendant's identity is no excuse if
the plaintiff should have known the identity of that
defendant when the complaint was filed ...."
74 So.3d at 429 (quoting Ex parte Snow, 764 So.2d
531, 537 (Ala. 1999)(emphasis added)).
argues that Templeton did not act with due diligence in
attempting to discover its identity because, it says,
Templeton should have known when he filed the original
complaint that Nicholson manufactured the debarker machine.
Specifically, Nicholson argues that Templeton failed to
recognize that both a sheriff's incident report and a
Department of Labor decision and order issued following the
accident identified Nicholson as the manufacturer of the
debarker machine. With its summary-judgment motion below,
Nicholson provided a copy of the incident report, which
included multiple photographs of the debarker machine on
which was posted a clearly legible label stating "
NICHOLSON." Further, Nicholson also provided a copy of a
November 13, 2012, Department of Labor decision and order
discussing the accident that resulted in Ixcoy's death
and identifying, within the inspection-summary section, the
equipment allegedly involved in the accident as a "
Nicholson" debarker machine. Nicholson thus argues that
Templeton had sufficient and readily available sources of
information to lead to the discovery of its identity.
parte Mobile Infirmary, supra, the plaintiff filed a
wrongful-death action against an entity he identified in the
complaint as Infirmary Health Systems, Inc., which had
allegedly treated the decedent. 74 So.3d at 427. After the
statutory limitations period had run, the plaintiff attempted
to substitute Mobile Infirmary Association (" Mobile
Infirmary" ) for a fictitiously named defendant.
Id. In deciding whether the substitution related
back to the filing of the original complaint, we stated:
" The evidence attached to Mobile Infirmary's
summary-judgment motion indicates that [the plaintiff] did
not act with due diligence. When he filed the original
complaint, [the decedent's] family had possessed her
medical records for 20 months, and [the plaintiff] had
possessed [the decedent's] medical records for at least 3
months, including various paperwork from Mobile Infirmary,
which indicated that [the decedent] had been admitted to the
[Mobile Infirmary] Medical Center, had undergone
surgery there, and had been treated there following her
surgery. A reasonably diligent plaintiff possessing that
information should have at least attempted to identify the
corporation doing business as Mobile Infirmary Medical Center
and include it as a defendant. See Fulmer v. Clark Equip.
Co., 654 So.2d 45, 46 (Ala. 1995) (holding that where
plaintiff knew the allegedly defective forklift was
manufactured by 'Clark' and possessed forklift
manuals providing Clark's name but did not attempt to
amend the complaint until after the limitations period had
run, the plaintiff 'did not act diligently in attempting
to learn Clark Equipment's identity'). As this Court
" '[i]f the plaintiff knows the identity of the
fictitiously named parties or possesses sufficient facts to
lead to the discovery of their identity at the time of the
filing of the complaint, relation back under fictitious party
practice is not permitted and the running of the limitations
period is not tolled.'
" Clay v. Walden Joint Venture, 611 So.2d 254,
256 (Ala. 1992)."
74 So.3d at 429-30 (emphasis added). See Marsh v.
Wenzel, 732 So.2d 985, 990 (Ala. 1998) (holding that one
could not reasonably conclude that a plaintiff was ignorant
of the name of her pathologist when the pathologist was
identified by name in the plaintiff's medical records).
the plaintiff in Mobile Infirmary, Templeton had access to
information that would have led him to discover the identity
of the manufacturer of the debarker machine: photographs
included in the incident report clearly showing the "
NICHOLSON" label on the debarker machine and the
Department of Labor decision and order identifying Nicholson
as the manufacturer of the debarker machine. Templeton
argues, however, that he was not actually in possession of
the incident report at the time the complaint was filed and,
nevertheless, that he acted with due diligence in
investigating and discovering Nicholson's identity.
Specifically, he argues that his current counsel did not
receive copies of the incident report until after the statute
of limitations had run. He also contends that the Department
of Labor decision and order does not provide proper notice
because, he says, it is " unsigned" and "
non-final." Lastly, he argues that his current counsel
had been denied access to inspect the accident site and,
therefore, was prohibited from identifying the manufacturer
of the debarker machine.
materials before us demonstrate that the incident report
containing the photographs of the Nicholson debarker machine
had been available to the public since September
2011. Further, despite the fact that the
Department of Labor decision and order, available since
November 13, 2012, was neither final nor signed, it
nevertheless identifies Nicholson as the manufacturer of the
debarker machine. Both sources would have led to the
discovery of Nicholson's identity with the exercise of
true that at the time of filing the complaint Templeton was
not in possession of the incident report. However, simply
lacking information that discloses an unidentified defendant
does not necessarily excuse the failure to exercise due
diligence. In Crowl, supra, the plaintiff, Crowl, was injured
when he slipped and fell at a gasoline-service station. 848
So.2d at 932. He attempted to initiate an action against the
owner of the gasoline-service station; after the statute of
limitations had run, Crowl discovered the name of, and
attempted to substitute for a fictitiously
named defendant, the actual owner of the service station,
Kayo Oil Company. 848 So.2d at 933-34. This Court
held that Crowl had failed to exercise due diligence because
Crowl did nothing to ascertain Kayo Oil's identity before
the statutory limitations period expired. Id. at
937. Specifically, we stated that the identity of Kayo Oil
could have been ascertained by requesting and reviewing the
publicly available property-tax records. Id.
circumstances surrounding the discovery of Nicholson's
identity are analogous to those in Crowl. The incident report
had been available for nearly 15 months and the Department of
Labor decision and order had been available for nearly 2
months before the expiration of the statutory limitations
period. Consequently, Templeton, like the plaintiff in Crowl,
could have easily obtained those documents before filing the
complaint. The documents are products of standard
investigations into a work-site-related death. Due diligence
in identifying an unknown defendant should lead a party to
seek out and to consult readily and publicly available
documents of importance regarding a standard investigation of
an accident forming the basis of a claim. Crowl, supra.
See also Ex parte Nationwide Ins. Co., 991 So.2d
1287, 1291 (Ala. 2008) (finding that the substitution of a
defendant for a fictitiously named party does not relate back
when the plaintiff could have discovered the insurer's
identity by, among other things, reviewing an accident
report). The fact that Templeton was not in possession of
both documents is the result of a failure to exercise due
diligence in attempting to discover Nicholson's identity.
we note that the evidence in this case discloses that the
debarker machine is labeled with the name of its
manufacturer. In a products-liability action, a party cannot
claim ignorance of the identity of the manufacturer of the
product--the very subject of the lawsuit--when a simple
inspection of that most crucial piece of evidence would have
revealed the name of the manufacturer, which is clearly
stated on the allegedly defective product itself. Ex
parte General Motors, 144 So.3d at 239 (holding that the
plaintiff failed to exercise due diligence to learn the
identity of an automobile manufacturer because, among other
things, no inspection of the automobile was undertaken that
would have discovered a label identifying the manufacturer
required by federal regulations); Fulmer v. Clark Equip.
Co., 654 So.2d 45, 46 (Ala. 1995)(holding that
exercising due diligence would have revealed the name of the
forklift manufacturer, which was clearly stated on the
identification plate on the forklift); and Jones v.
Resorcon, Inc., 604 So.2d 370, 373 (Ala. 1992) (holding
that the plaintiff failed to exercise due diligence by not
inspecting the allegedly defective blower fan labeled with
the manufacturer's name).
argues that he was denied access to the accident site in
December 2012 and was thus prevented from discovering
Nicholson's identity. However, the refusal of access to
inspect an allegedly defective product that is the subject of
a products-liability action, this Court has previously held,
does not necessarily excuse the failure to examine it to
learn the identity of the manufacturer:
" It is relevant to the question of due diligence that
an inspection of the fan would almost certainly be necessary
to maintain the product liability action against any
defendant. If Jones's assertions that USX refused access
are true, then due diligence would have required an attempt
to obtain a courtordered inspection."
Jones, 604 So.2d at 373 (emphasis added).
instant case, as in Jones, Templeton--in the two years
following the accident--could have requested a court-ordered
inspection of the equipment forming the basis of the
defective-product claim. Unlike Jones, however, other
information that would have revealed the name of the
manufacturer of the debarker machine was readily available
and ascertainable from two other sources--the incident report
and the Department of Labor decision and order--both of which
were available to the public. Therefore, Templeton's
failure to ascertain this information amounts to a lack of
due diligence in identifying Nicholson as the manufacturer.
See Crowl, 848 So.2d at 937.
Templeton failed to act with due diligence in discovering the
identity of the fictitiously named defendant, the trial court
had no discretion other than to grant Nicholson's motion
for a summary judgment in its favor on the
statute-of-limitations ground. For the foregoing
reasons, we grant Nicholson's petition and issue a writ
of mandamus directing the Tuscaloosa Circuit Court to enter
an order granting Nicholson's motion for a summary
GRANTED; WRIT ISSUED.
Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur.
Chief Justice (dissenting).
dissent because I do not believe that the petitioner has
satisfied its burden of establishing the elements necessary
for mandamus relief.
" Mandamus is an extraordinary remedy and will be
granted only where there is '(1) a clear legal right in
the petitioner to the order sought; (2) an imperative duty
upon the respondent to perform, accompanied by a refusal to
do so; (3) the lack of another adequate remedy; and (4)
properly invoked jurisdiction of the court.' Ex parte
Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991). This Court
will not issue the writ of mandamus where the petitioner has
'" full and adequate relief" ' by appeal.
State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526
(1972) (quoting State v. Williams, 69 Ala. 311, 316
Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813
(Ala. 2003). Because there is a reasonable basis for
controversy concerning whether Gerald A. Templeton exercised
due diligence in identifying Nicholson Manufacturing Limited
(" Nicholson" ) as the manufacturer of the debarker
machine involved in the death of Casimiro Deleon Ixcoy, I do
not believe that Nicholson has a clear legal right to a
summary judgment. Furthermore, because nothing
indicates that Nicholson sought a permissive appeal of the
trial court's denial of summary judgment under Rule 5,
Ala. R. App. P., Nicholson also failed to exhaust its other
facts indicate that Nicholson's right to the relief
sought is far from clear and that the trial judge acted
within its discretion in denying its motion for a summary
judgment. Before the two-year statutory limitations period
expired, Templeton's attorney requested permission to
inspect the facility at which the fatal accident occurred,
and the request was denied. When Templeton filed his
complaint within the limitations period, he also filed
interrogatories requesting the name of the manufacturer of
the " conveyor and/or machinery which is at the basis of
this lawsuit." Despite the fact that the debarker
machine was on the property, and presumably within the
control of one or more defendants, other named defendants --
Treeline Transportation, Inc., Newton Lumber Company, LLC,
Kutz, LLC, Burt Holdings, LLC, and Burt Lumber Co., Inc. --
denied knowing the identity of the manufacturer of the
relevant machinery in responses dated five months after the
statutory limitations period had expired.
attorney requested the incident report kept by the Tuscaloosa
Sheriff's Department within the limitations period but
did not receive it until two days after the limitations
period had expired. The nonfinal decision issued by the
Department of Labor, publicly available for less than 2
months before the limitations period expired, is a 13-page
document containing a single reference to "
Nicholson," not " Nicholson Manufacturing
" The clear legal right must be an 'indisputable
right to a particular result.' Ex parte Rudolph,
515 So.2d 704, 706 (Ala. 1987) (emphasis added). '[T]he
right to the relief sought [must be] clear and certain, with
no reasonable basis for controversy.' Ex parte Nissei
Sangyo America Ltd., 577 So.2d 912, 914 (Ala. 1991)
Ex parte General Motors of Canada Ltd., 144 So.3d
236, 243-44 (Ala. 2013) (Moore, C.J., dissenting). I agree
with the sentiment expressed by the trial court in its order
denying Nicholson's summary-judgment motion that this is
a " close case." In close cases, we generally defer
to the reasoned judgment of the fact-finder. Because a
reasonable basis for controversy exists as to whether
Templeton exercised due diligence in identifying Nicholson as
the manufacturer of the debarker machine, Nicholson has not
established a clear legal right to the relief sought.
the materials before us do not show that Nicholson sought to
avail itself of the alternative remedy of a permissive appeal
under Rule 5, Ala. R. App. P. " In the normal case where
a party may, under Rule 5, Ala. R. App. P., petition for
permission to appeal, this court will not entertain a
petition for a writ of mandamus, because such a petition may
not substitute for an appeal." Ex parte Burch,
730 So.2d 143, 145 (Ala. 1999). Had Nicholson sought and been
denied permission to appeal, it might have established the
lack of an adequate remedy. See Ex parte Jackson,
780 So.2d 681, 685 (Ala. 2000) (" If [the petitioners]
had asked the trial court to give the certification required
by [Rule 5] and the trial court had refused, this might be a
different case." ).
fails to plead the elements necessary for the extraordinary
remedy of a writ of mandamus in its petition or reply brief,
much less shows how it satisfies those elements. "
Moreover, if [the petitioner] had adequately pleaded the
required elements, [the petitioner] would still not be
entitled to the writ" because it lacks a clear legal
right to the relief sought and because it failed to take
advantage of another adequate remedy. General Motors of
Canada Ltd., 144 So.3d at 246 (Moore, C.J., dissenting).
I believe that by relaxing a defendant's burden to prove
entitlement to mandamus relief in cases involving
fictitiously named parties and the relation-back doctrine,
this Court has turned the elements of mandamus relief into a
hollow refrain. Therefore, I respectfully dissent.
Templeton did not request a copy until
Indeed, Templeton's counsel states in
an affidavit that the photographs in the incident report gave
him the information necessary to file the amended complaint
substituting Nicholson for a fictitiously named defendant.
That information was available some 15 months before the
complaint was filed, and copies of the report had previously
been requested by other attorneys/law firms and by the
Occupational Safety and Health Administration.
Templeton argues that his current counsel
was hired shortly before the expiration of the statutory
limitations period and acted as diligently as possible
during that short time. However, as Nicholson notes, the duty
to exercise due diligence is the party's, and Templeton
had almost two years to discover Nicholson's identity. We
see no authority excusing a party's duty to exercise due
diligence when new counsel is acquired at the eve of the
expiration of the statutory limitations period. Cf. Ex
parte General Motors, 144 So.3d at 241.
The majority cites Jones v. Resorcon,
Inc., 604 So.2d 370 (Ala. 1992), in concluding that
Templeton should have sought a court-ordered inspection of
the debarker machine. However, Jones's lack of due
diligence was exhibited by a totality of circumstances.
" When Jones did begin efforts ... to determine the true
manufacturer, his efforts were sporadic and ineffectual
...." 604 So.2d at 374. After obtaining leave from the
trial court to substitute the proper defendant more than a
year after the limitations period had run, Jones waited
another 26 days to file his amended complaint. 604 So.2d at
Although the Jackson Court purported to
acknowledge an exception to the rule that mandamus cannot
substitute for an appeal in " cases involving fictitious
parties and the relation-back doctrine," that statement
was dicta, because relation back was not an issue in Jackson.
See Jackson, 780 So.2d at 684.