Opinion
No. 1:99CV338-S-A.
September 19, 2000.
OPINION
This slip-and-fall case is presently before the court on the motion of defendant West Mac III, Inc., to dismiss based primarily on the expiration of the statute of limitations governing negligence actions. The facts underlying this motion are not in dispute, and the court begins there.
On October 22, 1996, plaintiff Mary Jane Essary fell while on the premises of Wal-Mart Supercenter in Corinth, Mississippi. Ironically, Ms. Essary fell on a caution sign that was lying flat on the floor. Following the incident, Ms. Essary was assisted by Wal-Mart employees, who prepared an incident report, and in the days that followed, she was contacted by Wal-Mart representatives. Wal-Mart continued its investigation of the accident but never indicated to either Ms. Essary or her attorney that McDonald's, which is located within Wal-Mart, might actually be responsible.
When Ms. Essary was unable to settle her claim with Wal-Mart, she and her husband filed suit against Wal-Mart, XYZ Corporations 1-25, and John Does 26-50. The complaint was filed on September 15, 1999, in the Circuit Court of Alcorn County, Mississippi. On September 29, 1999, the Essarys amended the complaint but did not alter the names of the defendants. Wal-Mart was timely served with the summons and complaint, and on November 4, 1999, timely removed this matter to this court, invoking diversity jurisdiction under 28 U.S.C. § 1332.
Pursuant to this court's Civil Justice Reform Act plan, this cause was scheduled for a case management conference, and on January 25, 2000, Wal-Mart indicated for the first time that it was not liable for Ms. Essary's injuries but that in fact McDonald's was actually responsible for the location where Ms. Essary had fallen. Twenty-one days later, on February 15, 2000, plaintiffs moved to join "McDonald's" as a defendant in this action. At that time, plaintiffs stated that "[d]espite diligent inquiry, [they were] unable to ascertain McDonald's proper corporate identity," but that "[n]ewly discovered evidence suggest[ed] that McDonald's may have been at least partly responsible for the premises in question." The court granted the motion on March 7, 2000, and on March 20, plaintiffs filed an amended complaint naming "McDonald's" as a defendant in this action and retaining all XYZ Corporations and John Does as defendants. Summons for "McDonald's," in care of the local manager in Corinth, was issued at that time. On April 6, 2000, an alias summons was issued for "McDonald's c/o Tom West and Victoria West, 36 Frenchmen's Key, Williamsburg, VA 23185." Nineteen days later, plaintiffs moved to substitute West Mac III for McDonald's, and a week later, the court granted the substitution of parties. The instant motion to dismiss ensued.
DISCUSSION
In the view of West Mac, plaintiffs' claims against it are time-barred, and plaintiffs can garner no relief from the relation back provisions of Fed.R.Civ.P. 15(c), which state:
An amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
I.
It is undisputed that this action is governed by the three-year statute of limitations set forth in Miss. Code Ann. § 15-1-49. In construing Fed.R.Civ.P. 15(c)(1), then, the court looks to Mississippi law to determine "if that law affords a more forgiving principle of relation back than the one provided in this rule. . . ." Fed.R.Civ.P. 15 advisory committee's note. In that regard, two Mississippi rules of procedure primarily come into play. First, under Miss. R. Civ. P. 9(h), which governs the use of fictitious parties,When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered the process and all pleadings and proceedings in the action may be amended by substituting the true name and giving proper notice to the opposing party.
And second, under Miss. R. Civ. P. 15(c), the relation back provision,
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining the defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.
Rule 4(h), referenced in Rule 15(c), requires service of the summons and complaint within 120 days of the filing of the complaint unless a plaintiff can show good cause for failure to serve within that time period.
As interpreted by the Mississippi Supreme Court, these provisions provide relief only in limited circumstances. For example, Rule 9(h), and thus the saving provision of 15(c)(2), only applies when a plaintiff makes a direct substitution for a fictitious party; otherwise "the new party must be served prior to the running of the statute of limitations." Doe v. Mississippi Blood Services, Inc., 704 So.2d 1016, 1018 (Miss. 1997). Therefore, if the plaintiff substitutes a new defendant for a named defendant and continues litigation against all fictitious defendants after the expiration of the statute of limitations, then she has merely joined a new party rather than made a 9(h) substitution. Doe, 704 So.2d at 1018. While a true substitution for a fictitious party will relate back to the original filing date under Miss. R. Civ. P. 15(c)(2), joinder of a new party in place of a named party will not.
Furthermore, the "relation back privilege provided for fictitious parties under Rule 15(c)(2) requires the plaintiff to actually exercise a reasonably diligent inquiry into the identity of the fictitious party." Id. at 1019. In that regard, the court stated: "The purpose of Rule 9(h) is to provide a mechanism to bring in responsible parties, known, but unidentified, who can only be ascertained through the use of judicial mechanisms such as discovery. It is not designed to allow tardy plaintiffs to sleep on their rights . . ." Id.
In this case, Miss. R. Civ. P. 9(h) would not provide plaintiffs with any relation back benefit.
McDonald's was not brought in until four and one-half months after the statute of limitations had expired; West Mac, not until six months after the limitations period had run. In that situation, the only way to gain relation back relief would have been to substitute McDonald's and West Mac for fictitious parties. Plaintiffs did not pursue that course, instead moving first to join McDonald's as an additional defendant in this litigation without deleting any of the original fifty fictitious parties. Likewise, when the Essarys discovered the proper corporate identity of McDonald's, they, like the plaintiffs in Doe, moved to substitute a new party for a named party, rather than for one of the fictitious defendants. Although these failures may represent, as plaintiffs and the Doe dissent argue, a "matter of semantics," Doe, 704 So.2d at 1020 (McRae, J., dissenting), and serve only to "inequitably limit the extent to which real parties may be substituted for fictitious parties," id., it is a failure which nonetheless forecloses relation back relief under the provisions of 9(h).
The court also believes that under the rationale of Doe, a Mississippi court would find that plaintiffs acted less than diligently in identifying the appropriate parties for suit. Ms. Essary knows where she was walking when she fell in Wal-Mart. Though no one has edified the court on this point, the court assumes that, given the position taken by Wal-Mart at the case management conference and plaintiffs' argument in their memorandum that "McDonald's personnel were present and aware of the injuries," the accident occurred somewhere near the McDonald's concession in the Wal-Mart facility. In almost three years of investigating this matter and attempting to negotiate a settlement with Wal-Mart, plaintiffs in the same way they put the onus on McDonald's — should have considered the possibility that McDonald's might be at least partly responsible for Ms. Essary's accident. Cf. Womble v. Singing River Hospital, 618 So.2d 1252, 167 (Miss. 1993) ("Even if the plaintiff knows the true name of the person, he is still ignorant of his name if he lacks knowledge of the facts giving him a cause of action against that person").
II.
The court chooses to bypass further analysis under Miss. R. Civ. P. 15(c), since the remaining provisions of that rule are essentially identical to the requirements of Fed.R.Civ.P. 15(c). Without dispute, the claims asserted by plaintiffs against McDonald's, and later West Mac, are identical to the claims asserted in the original pleadings, thereby fulfilling the initial prerequisite for relation back under 15(c)(3). Furthermore, the court has little hesitation in giving plaintiffs the benefit of the doubt that but for a mistake, they would have joined West Mac as the proper corporate entity. In this court's mind, however, the questions focus not on West Mac but on McDonald's: did McDonald's receive notice of the suit against Wal-Mart and the fictitious defendants within 120 days of the filing of that suit (or longer if good cause is shown), and did McDonald's know or should it have known that but for a mistake, it would have been sued in the first instance? In that regard, plaintiffs only argue, as the court previously noted, (1) that "McDonald's personnel were present and aware of the injuries. Clearly, they knew of the potential cause of action," and (2) that plaintiffs "had no reason to suspect the liability of the McDonald's restaurant in the Wal-Mart store." Even if the court gives plaintiffs the benefit of the identity of interest test which the Fifth Circuit employs in determining notice, see Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998) (notice will be inferred "if there is an identity of interest between the original defendant and the defendant sought to be added or substituted"; "`[i]dentity of interest generally means that the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other'"), it cannot fathom how plaintiffs can avail themselves of the argument that they were mistaken about the identity of the proper parties to this action until Wal-Mart brought the prospect of McDonald's liability to their attention. Even so, 15(c)(3) is not aimed at the situation advanced by plaintiffs but rather at "the misidentification of a defendant." Jacobsen, 133 F.3d at 320-21. In this case, there was no misidentification with regard to McDonald's; instead, as plaintiffs themselves argue, they were simply unable to identify the correct defendant. Consequently, relation back does not apply, and the claims against McDonald's, and hence, West Mac III, are time barred.
CONCLUSION
Having carefully considered the matter, the court finds that the claims against West Mac III, do not relate back to the original filing in this case under Fed.R.Civ.P. 15, and therefore, that they are barred by the statute of limitations. The motion of West Mac III, to dismiss is therefore granted.
An appropriate order shall issue.