Following the running of the statute of limitations, when can claims against fictitious parties relate back to the original claims made against the named parties, for the purposes of replacing fictitious parties with real defendants?

Scenario:

Abigail Adams has a car that’s titled in her name. But she’s getting up in age, so she let’s John Quincy Adams use the car and keep it at his house. John Quincy has a friend Andrew Jackson who was in need of some wheels, because his ride was in the shop. While Andrew had the car, he let his mistress Hannah drive it. Hannah got in a wreck in Montgomery, Alabama, with the insufferable Martin Van Buren.

Almost two years after the wreck, Van Buren sues both Hannah (as the driver) and Abigail Adams (as the owner). In the style of the suit Van Buren lists Hannah and Adams and some fictitious parties, just in case he’s left anyone out. In the body of the Complaint, Van Buren makes his allegations against Hannah for negligence and wanton conduct and against Mrs. Adams for negligent entrustment of the vehicle to Hannah. But he fails to make allegations in the body of the Complaint against any of the fictitious defendants.

Several months into the lawsuit, and well over two years after the accident, Van Buren finds out some additional facts. Even though the police report from the accident listed Mrs. Adams as the owner and Hannah as the driver, Mrs. Adams had no idea that Hannah was driving the car. Even John Quincy says he didn’t know Hannah was driving the car. So Martin Van Buren decides he needs to add John Quincy and Andrew Jackson as defendants for negligent entrustment. Because it’s been more than two years since the accident happened, the statute of limitations has run, and Van Buren needs to know if his claims against John Quincy and Jackson will relate back to his original claims, such that the claims  against them won’t be barred by the statute of limitations.

Law:

Applicable Rules of Civil Procedure:

Alabama Rules of Civil Procedure 9(h) and 15(c) control the relation back principle of claims made against fictitious parties. ARCP 9(h) reads: “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 that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

ARCP15(c)(3) reads that an amendment of a pleading relates back to the date of the original pleading when “the amendment, other than one naming a party under the party’s true name after having been initially sued under a fictitious name, 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 applicable period of limitations or one hundred twenty (120) days of the commencement of the action, whichever comes later, 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, or (4) relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h).” And ARCP 15(c)(4) provides that “relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h).

Applicable Caselaw:

Stating a Claim against Fictitious Parties

However, in order to invoke the relation-back principle of Rule 15(c) in regard to fictitious party practice under Rule 9(h), a plaintiff “(1) must state a cause of action against the party named fictitiously in the body of the original complaint and (2) must be ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time of the filing that the later-named party was in fact the party intended to be sued.” Ex parte Hensel Phelps Constr. Co., 7 So.3d 999, 1002–03 (Ala. 2008) (quoting Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala. 1996)).

Stated differently, in order to invoke the relation-back principle and proceed under the fictitious party rule, “the original complaint must adequately describe the fictitiously named defendant and state a claim against such a defendant.” Ex parte Nationwide Ins. Co., 991 So. 2d 1287, 1290–91 (Ala. 2008) (Emphasis added) (Internal citations omitted). “To avoid the bar of a statute of limitations when a plaintiff amends a complaint to identify a fictitiously named defendant, the plaintiff (1) must state a cause of action against the party named fictitiously in the body of the original complaint and (2) must be ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time of the filing that the later-named party was in fact the party intended to be sued.” Ex parte Tate & Lyle Sucralose, Inc., 81 So.3d 1217 (Ala. 2011) (citing Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala.1996)). (Emphasis added) (Internal citations omitted).

Ignorance of the Identity of the Defendant’s True Identity

“In addition, a party must have been ignorant of the true identity of the defendant and must have used due diligence in attempting to discover it.” Pearson v. Brooks, 883 So.2d 185, 191 (Ala. 2003). “The correct standard for determining whether a party exercised due diligence in attempting to ascertain the identity of the fictitiously named defendant 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). Where a plaintiff knows or had opportunity to know the identity of a party at the time of filing suit or prior to the tolling of the statute of limitations but does not name the party, the plaintiff has failed to meet the criteria for invoking the relationship back principles of ARCP 9(h) and 15(c). See Ex parte Ismail, 78 So.3d 399 (Ala. 2011).

Applying the Law:

In order to relate back a claim, the original complaint must adequately describe the fictitious parties, and more importantly for our purposes, the plaintiff must state a claim against such defendants in the body of the original complaint. See Ex parte Nationwide Ins. Co., 991 So. 2d 1287, 1290–91 (Ala. 2008); see also Ex parte Tate & Lyle Sucralose, Inc., 81 So.3d 1217 (Ala. 2011); Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala. 1996).

In our case, because Van Buren did not state a claim in the body of the Complaint against any fictitious parties, he should be barred making any negligent entrustment claims against either John Quincy or Jackson because the statute has run and those claims will not be deemed to relate back to his original claims against Mrs. Adams and Hannah.

As to the merits of the negligent entrustment claim against Mrs. Adams, Van Buren is likely going to have some real problems, and that claim should be dismissed at the summary judgment level. In order to prove a claim of negligent entrustment, a plaintiff must show that (1) the borrower was incompetent, inexperienced, or reckless; (2) the supplier knew or had reason to know of the borrower’s incompetence; (3) the supplier did entrust the vehicle to the borrower; (4) the entrustment created an unreasonable risk of harm to the plaintiff; and (5) the plaintiff’s harm resulted from the entrustment. Thedford v. Payne, 813 So.2d 905, 911 (Ala.Civ.App. 2001). In order for there to be negligent entrustment, there must be manifestations of incompetence of the borrow prior to the time of the entrustment. Pryor v. Brown & Root USA, Inc., 674 So.2d 45 (Ala. 1995). Since Mrs. Adamas did not have control of the vehicle while it was in the control or  possession of either John Quincy or Andrew Jackson, she should not be found to have entrusted the vehicle to Hannah.

Artwork via Boston Public Library.