                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2009-IA-00987-SCT


JANIS ANDERSON, INDIVIDUALLY, AND ON
BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF JESSE J. ANDERSON, JR.,
DECEASED

v.

ALPS AUTOMOTIVE, INC.


DATE OF JUDGMENT:                         05/29/2009
TRIAL JUDGE:                              HON. MICHAEL M. TAYLOR
COURT FROM WHICH APPEALED:                LINCOLN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  PATRICIA LOVERNE BEALE
                                          PAUL T. BENTON
                                          JOHN WINCIE LEE, JR.
                                          MICHAEL JACOB SHEMPER
ATTORNEYS FOR APPELLEE:                   BRENDA B. BETHANY
                                          EDWARD M. KRONK
                                          J. WYATT HAZARD
NATURE OF THE CASE:                       CIVIL - WRONGFUL DEATH
DISPOSITION:                              AFFIRMED - 11/18/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE GRAVES, P.J., LAMAR AND KITCHENS, JJ.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    Following an automobile accident, Janis Anderson filed suit for her injuries and for

the wrongful death of her husband, Jesse Anderson, Jr., against General Motors Corporation,

Stan King Chevrolet, Inc., and two fictitious defendants, alleging product liability, strict
liability, negligence, and breach of warranty. Nearly two years after filing her complaint,

Anderson learned that ALPS Automotive, Inc., had manufactured a key component of an

airbag that she contended had failed to deploy properly. However, she did not seek leave to

substitute ALPS for one of the fictitious defendants until nine-and-a-half months after she

had discovered ALPS’s identity. Although the trial judge allowed the plaintiff leave to

amend her complaint, he subsequently granted ALPS’s motion for summary judgment,

finding that the nine-and-a-half-month delay was unreasonable. This Court granted the

plaintiff’s motion for interlocutory appeal.

                                 Facts and Procedural History

¶2.    Jesse Anderson, Jr., was driving his wife, Janis Anderson, to work on February 15,

2003, in their 1998 Chevrolet Venture Van when it was struck head-on by a Ford truck

driven by Michael Beasley.1 Upon impact, the van’s passenger-side airbag deployed;

however, the driver-side airbag did not. As a result of the collision, Mr. Anderson died.

¶3.    At the request of the decedent’s widow, Richard Moakes, a chartered professional

mechanical engineer, along with a General Motors representative, inspected the Chevrolet

van on June 22, 2005. From that inspection of the vehicle, Moakes determined that the

driver’s-side airbag “did not deploy at the time of the incident, the clockspring at the top of

the steering column was broken, and this defective part denied Mr. Anderson the protection

provided by the driver’s side airbag.” Moakes further opined that “despite the fact that Mr.

Anderson was not wearing his seat belt at the time of the incident, there was sufficient space




       1
           Beasley is not a party to this lawsuit.

                                                 2
between the steering wheel and the back of the seat for him to occupy without being crushed,

and that had the airbag deployed, he would have received a better chance of surviving the

crash.” Moakes’s report was dated April 6, 2006, almost a year following the inspection.

¶4.    Mrs. Anderson filed her complaint on February 13, 2006, in the Circuit Court of

Lincoln County, Mississippi, against General Motors Corporation, Stan King Chevrolet, Inc.,

ABC, Inc., and XYZ, Inc. Both ABC, Inc., and XYZ, Inc., were described as “fictitious

defendant[s] sued because the identities of all entities involved in the design, manufacture,

sale and repair of the subject vehicle and the airbag mechanism at issue are presently

unknown.”

¶5.    On November 30, 2007, counsel for General Motors conducted a non-destructive

inspection of the clockspring. Representatives for General Motors, ALPS, and Anderson

were present for the inspection. The only manufacturer identified on the clockspring was

General Motors, shown thereon as “GM,” followed by a set of numbers. The names ALPS

or ALPS Automotive, Inc., did not appear anywhere on the clockspring. During the

inspection of the clockspring, an ALPS employee in attendance informed Anderson’s counsel

that ALPS had manufactured the clockspring.

¶6.    On September 16, 2008, Anderson circulated a proposed agreed order for leave to file

her second amended complaint to all counsel of record to replace XYZ, Inc., with ALPS

Automotive, Inc., as a defendant. The Lincoln County Circuit Court entered the agreed order

for leave to amend on November 24, 2008, and Anderson filed her second amended

complaint on December 8, 2008. ALPS was served with process on December 9, 2008.




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¶7.    ALPS filed its motion for summary judgment on February 19, 2009, alleging that the

statute of limitations on Anderson’s claims against ALPS had expired, that Anderson had

failed to exercise reasonable diligence in ascertaining the identity of ALPS under Rule 9(h)

of the Mississippi Rules of Civil Procedure, that Anderson had failed to meet the diligence

requirement of Rule 15(c)(2) in amending her complaint, and, as a result, Anderson’s claims

against ALPS, made in her second amended complaint, did not relate back to the filing date

of the original complaint. A hearing on the motion was held, resulting in a bench ruling

granting the motion for summary judgment. The trial judge adjudicated that a nine-and-a-

half-month delay between the time the plaintiff learned that ALPS had manufactured the

clockspring and the filing of the plaintiff’s second amended complaint to add ALPS as a

defendant was unreasonable under Mississippi Rule of Civil Procedure 9(h).

¶8.    Anderson filed a motion to reconsider, which was denied. The trial court further held

that, once ALPS had admitted being the manufacturer of the clockspring, ALPS was no

longer a fictitious party under Mississippi Rule of Civil Procedure 9(h), the mistake under

Rule 15(c) had been resolved, and that a nine-month period of delay in adding ALPS as a

defendant was unreasonable.

¶9.    Aggrieved by the trial court’s ruling, Anderson filed her petition for interlocutory

appeal, which this Court granted.

                                           Issue

¶10.   The plaintiff asks this Court to consider whether a nine-and-a-half-month delay

between learning the identity of a fictitious party and amending her complaint to substitute




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the true name of the defendant for a fictitious party is unreasonable and exhibits a lack of due

diligence.

                                    Standard of Review

¶11.   When reviewing a trial court’s grant or denial of summary judgment, this Court

applies a de novo standard of review. Crawford Logging, Inc. v. Estate of Irving, 41 So.

3d 687, 689 (Miss. 2010). A motion for summary judgment is to be granted “if the

pleadings, depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c).

                                          Discussion

¶12.   Anderson argues that the trial court erred in adjudicating that she failed to use

reasonable diligence in amending her complaint by waiting nine-and-a-half months from the

date she learned that ALPS had manufactured the clockspring before seeking leave to amend

her complaint. ALPS argues that Anderson is a tardy plaintiff who slept on her rights by not

seasonably naming ALPS a defendant in her product liability action.

¶13.   Mississippi Rule of Civil Procedure 9(h) provides:

       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.

(Emphasis added.) The phrase “when his true name is discovered,” suggests that an

immediate amendment of the complaint is required properly and timely to substitute a true




                                               5
defendant for the fictitiously named defendant. Rule 15 of the Mississippi Rules of Civil

Procedure governs the process of amending complaints and provides in pertinent part:

       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.

Miss. R. Civ. P. 15(c)(2). Thus, “a proper amendment pursuant to Rule 9(h) will relate back

to the date of the filing of the original complaint.” Bedford Health Props., LLC v. Estate

of Williams, 946 So. 2d 335, 341 (Miss. 2006). The plaintiff in the present case must have

made a “proper” amendment to avoid the running of the statute of limitations regarding

ALPS.2

¶14.   This Court has never spoken specifically on the issue of how much time constitutes

unreasonable delay in substituting a named defendant for a fictitious one. Although the

Federal Rules of Civil Procedure do not contain a counterpart to our Rule 9(h), the

Mississippi Rules of Civil Procedure and the Alabama Rules of Civil Procedure provide

almost identical means by which to substitute true parties in place of fictitiously named

parties. Furthermore, the Alabama Supreme Court has discussed pointedly the interplay

between that state’s rules on amending a civil complaint to substitute true defendants for




       2
        The parties agree that the statute of limitations had expired, unless Anderson’s
claims against ALPS related back to the filing date of the original complaint.

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fictitious parties.3 Although not binding on Mississippi, Alabama case law is instructive on

the application of Rules 9(h) and 15(c) in this case.

¶15.   The Alabama Supreme Court has held that Rules 9(h) and 15(c)(4) of the Alabama

Rules of Civil Procedure “allow a plaintiff to avoid the bar of a statute of limitations by

fictitiously naming defendants for which actual parties can later be substituted.” Ex parte

Nationwide Ins. Co., 991 So. 2d 1287, 1290 (Ala. 2008) (quoting Ex parte Chem. Lime of

Ala., Inc., 916 So. 2d 594, 597 (Ala. 2005)). The Alabama Court further explained that “to

invoke the relation-back principle of Rule 15(c), a plaintiff, after filing suit, must proceed in

a reasonably diligent manner to determine the true identity of a fictitiously named defendant

and to amend his complaint accordingly.” 4 Id. (quoting Ex parte FMC Corp., 599 So. 2d

592, 593-94 (Ala. 1992) (emphasis in original)).



       3
         Rules 9(h) and 15(c)(4) of the Alabama Rules of Civil Procedure are substantially
similar to our Rules 9(h) and 15(c)(2).

       Rule 9(h) of the Alabama Rules of Civil Procedure 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 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.

       Rule 15(c)(4) of the Alabama Rules of Civil Procedure provides that:

       An amendment of a pleading relates 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), Ala. R. Civ. P.
       4
         This Court also has held that “[t]he 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.” Wilner v. White, 929 So. 2d 315, 323 (Miss.
2006) (quoting Doe v. Miss. Blood Servs., Inc., 704 So. 2d 1016, 1019 (Miss. 1997)).

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¶16.   In Ex parte Hensel Phelps Construction Company, 7 So. 3d 999, 1001-1002 (Ala.

2008), the Alabama Supreme Court considered whether a delay of seven months from the

date on which the plaintiff discovered the true identity of a fictitiously named defendant and

the date on which the plaintiff sought to amend his complaint to substitute Hensel Phelps

Construction Company in place of the fictitious defendant constituted an unreasonable delay.

The Alabama Supreme Court held that “[t]he recalcitrant plaintiff cannot . . . use the relation-

back rule to gain what might otherwise amount to an open-ended statute of limitations.” 5 The

Court found that the plaintiff failed to act with due diligence in ascertaining the identity of

Hensel Phelps, and that the plaintiff failed to comply with the rules governing fictitious party

practice by waiting seven months to amend his complaint to substitute Hensel Phelps for a

fictitious defendant. Id.

¶17.   In this case, Anderson acted consistently with Rule 9(h) of the Mississippi Rules of

Civil Procedure by filing her original complaint against two known defendants and two

fictitious defendants.   Anderson described ABC, Inc., and XYZ, Inc., as “fictitiou[s]

defendants sued because the identities of all entities involved in the design, manufacture, sale

and repair of the subject vehicle and the airbag mechanism at issue are presently unknown.”

Anderson knew the reason for the failed deployment of her husband’s airbag was a defective

component of the airbag system; she was merely unaware of all maintenance facilities that

had serviced the van and of the identity of the manufacturer of the allegedly defective part.



       5
         This Court also has held that “[t]he purpose of Rule 9(h) is to provide a mechanism
to bring in responsible parties, known, but not identified, 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.” Doe, 704 So. 2d at 1019.

                                               8
By participating in the discovery process, Anderson was able to ascertain the true identity

of both fictitious defendants.

¶18.   The trial judge found that it was not until November 30, 2007, at the non-destructive

inspection of the clockspring, that the plaintiff learned that ALPS had manufactured the

clockspring, but she did not seek to substitute ALPS as a party until nine-and-a-half months

later. At the hearing on ALPS’s motion for summary judgment, the trial judge stated, “I am

satisfied that the Plaintiff did what the Plaintiff could do or needed to do up until the moment

in time that the Plaintiff, by their own admission, learned that ALPS manufactured the

clockspring. From there a delay of something upwards of nine months simply is not

reasonable diligence.”

¶19.   In her motion to reconsider, the plaintiff alleged that ALPS had notice of the lawsuit

as early as June of 2005, eight months prior to the actual filing of the lawsuit and well within

the three-year statute of limitations. In the motion to reconsider, Anderson asked the trial

court to consider her second amended complaint under Rule 15(c) of the Mississippi Rules

of Civil Procedure instead of Rule 9(h). In denying her motion to reconsider, the trial court

reasoned that Anderson had acted with due diligence in ascertaining the true identity of the

fictitious party under Rule 9(h), but that she had failed to act with due diligence in amending

her complaint under Rule 15(c).

¶20.   In the absence of any reasonable explanation by Anderson of why she waited more

than nine months after learning ALPS’s identity to seek the trial court’s leave to include it

as a defendant in her lawsuit, we agree that the plaintiff failed to exercise reasonable

diligence to bring this party into the litigation in a timely manner. The plain language of


                                               9
Rule 9(h) contemplates that the plaintiff must amend her complaint “in a reasonably diligent

manner” once she learns the true identity of the fictitious party. See Ex parte Hensel Phelps

Constr. Co., 7 So. 3d at 1003. As in Hensel Phelps, we find a delay of more than nine

months unreasonable. Id. at 1002. Accordingly, we hold that the trial judge did not err in

granting summary judgment to ALPS, and the entry of summary judgment for ALPS is

therefore affirmed.

¶21.   AFFIRMED.

    WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH,
LAMAR, CHANDLER AND PIERCE JJ., CONCUR.




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