      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                      NO. 2014-CA-00179-COA



DAVIS DAVENPORT                                    APPELLANT

v.

HERTZ EQUIPMENT RENTAL CORPORATION                   APPELLEE

DATE OF JUDGMENT:                01/24/2014
TRIAL JUDGE:                     HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:       RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:         CARLOS EUGENE MOORE
                                 TANGALA LANIECE HOLLIS
ATTORNEYS FOR APPELLEE:          JAMES GRADY WYLY III
                                 KYLE STUART MORAN
                                 MICHAEL FRANKLIN HELD
NATURE OF THE CASE:              CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:         GRANTED SUMMARY JUDGMENT IN
                                 FAVOR OF APPELLEE
DISPOSITION:                     AFFIRMED – 03/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

                      CONSOLIDATED WITH

                      NO. 2014-CA-01021-COA

DAVIS DAVENPORT                                    APPELLANT

v.

TEREX CORPORATION                                    APPELLEE

DATE OF JUDGMENT:                05/20/2014
TRIAL JUDGE:                     HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:       RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:         CARLOS EUGENE MOORE
                                 TANGALA LANIECE HOLLIS
ATTORNEYS FOR APPELLEE:                          MARK D. JICKA
                                                 CAROLINE KUNZ IVANOV
NATURE OF THE CASE:                              CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                         GRANTED SUMMARY JUDGMENT IN
                                                 FAVOR OF APPELLEE
DISPOSITION:                                     APPEAL DISMISSED – 03/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.

       IRVING, P.J., FOR THE COURT:

¶1.    This is a consolidated appeal stemming from two separate, yet related, summary-

judgment orders rendered by the Circuit Court of Rankin County against Davis Davenport

and in favor of Hertz Equipment Rental Corporation and Terex Corporation, respectively.

The circuit court determined that Davenport had improperly substituted both Hertz and Terex

pursuant to Rule 9(h) of the Mississippi Rules of Civil Procedure and that the statute of

limitations had run before Davenport filed complaints against them. On appeal, Davenport

asserts that the trial court erred in (1) granting summary judgment in favor of Hertz and

Terex, and (2) certifying Hertz’s judgment as final pursuant to Rule 54(b) of the Mississippi

Rules of Civil Procedure.

¶2.    Finding no error, we affirm the summary judgment granted in favor of Hertz but

dismiss Davenport’s appeal of the summary judgment granted in favor of Terex, as it is not

a final judgment and was not so certified pursuant to Rule 54(b).

                                          FACTS

¶3.    On May 26, 2009, Davenport sustained on-the-job injuries after a raised “man buggy”

                                             2
that he was in suddenly fell to the ground, landing in a trash bin. Almost three years later,

on May 16, 2012, Davenport filed a complaint in the Rankin County Circuit Court against

the following parties: (1) JKS Construction Inc., a subcontractor of the general contractor

Dynamic Services Inc.; (2) Dynamic Services Inc.; (3) RSC Equipment Rental Inc., which

later became United Rentals; and (4) John Doe Corporations 1 and 2.1 At the time of

Davenport’s original complaint, he alleged that the John Doe Corporations were strictly

liable for negligently distributing and/or manufacturing the man buggy or its component

parts.       On August 2, 2012, Davenport responded to United Rentals’ first set of

interrogatories, wherein he revealed that he was aware that Hertz had performed repair work

on the subject man buggy prior to the accident. On August 13, 2012, Davenport moved to

substitute Hertz for one of the John Doe Corporations. On March 11, 2013, the trial court

granted Davenport’s motion to substitute, and on March 18, 2013, Davenport filed an

amended complaint, substituting Hertz for John Doe Corporation 2 and included theories of

liability against Hertz that were not asserted in the original complaint against the original

defendants.

¶4.      Following the filing of the amended complaint, Hertz filed a motion to dismiss the

complaint under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure, alleging that

Hertz had been improperly substituted and that the applicable statute of limitations had run



         1
       Davenport was employed by Jaimie Deano, who was a subcontractor of JKS. Deano
was never party to the litigation.

                                             3
on Davenport’s claims against Hertz. Following a hearing, the trial court denied Hertz’s

motion to dismiss. However, the trial court found that Davenport had improperly added

additional theories of liability and struck those allegations. By separate order, the trial court

dismissed the amended complaint and ordered Davenport to file a new amended complaint

in compliance with its March 11, 2013 order that allowed the substitution of Hertz.

Davenport complied, and filed a second amended complaint on August 23, 2013.

¶5.    On October 4, 2013, Hertz filed a motion for summary judgment. In support of its

motion, Hertz attached an affidavit signed by Davenport’s brother, David Davenport, who

was working at the construction site and was at the scene of the accident when it occurred.

In his affidavit, David stated that the man buggy his brother was in was owned by Hertz and

that it had a visible Hertz label on it at the time of the accident.2 Hertz also attached

Davenport’s response to United Rentals’ interrogatory number 13, dated August 2, 2012,

wherein Davenport acknowledged that he knew Hertz had performed work on the man buggy

two days prior to the accident.

¶6.    In response, Davenport filed, inter alia, a memorandum in opposition to Hertz’s

motion for summary judgment and his own affidavit. In his affidavit, Davenport stated that

he was “unaware of the identity of all of the entities involved with repairing, manufacturing,

and/or distributing the man buggy, wherein [he] was injured” and that he “did not learn of



       2
        Nothing in the record explains how David knew that the man buggy was owned by
Hertz. Perhaps he assumed so because Hertz’s name was plainly visible on it.

                                               4
[Hertz’s] identity until August of 2012.”3

¶7.    Following the summary-judgment hearing, the trial court found that, pursuant to

Karpinsky v. American National Insurance, 109 So. 3d 84 (Miss. 2013), Hertz had met its

burden of showing that no genuine issues of material fact existed and that it was, therefore,

entitled to summary judgment. In arriving at this decision, the trial court determined that

Davenport had failed to show that he had made a reasonably diligent effort to identify Hertz

prior to the running of the statute of limitations and, consequently, the substitution of Hertz

did not relate back to the original complaint.4

¶8.    We now turn to the factual history regarding Terex. On October 30, 2013, Davenport,

pursuant to permission granted by an agreed order, filed his fourth amended complaint,

substituting Terex for John Doe Corporation 1. In this amended complaint, Davenport

alleged that Terex was the manufacturer of the man buggy. On February 24, 2014, Terex

moved for summary judgment, asserting that it was improperly substituted and that the statute

of limitations had run. After a hearing on Terex’s motion, the circuit court granted summary

       3
        Davenport he does not explain how or from whom he obtained the information about
Hertz having repaired the man buggy two days prior to the accident.
       4
          Following the decision of the circuit court, Davenport filed a motion for
reconsideration, and Hertz filed a motion for a Rule 54(b) final judgment. The circuit court
heard oral arguments in support of and in opposition to both motions on January 14, 2014.
On January 24, 2014, the circuit court entered separate orders, one denying the motion for
reconsideration and the other granting the motion for a Rule 54(b) final judgment. The
circuit court also dismissed all the claims against Hertz with prejudice. The court found that
there was no just reason for any delay in entering a final judgment with prejudice on Hertz’s
behalf and explained that the dismissal would not affect Davenport’s claims against the
remaining defendants.

                                              5
judgment in Terex’s favor, finding that Davenport had failed to make a reasonably diligent

inquiry to identify the manufacturer.

¶9.      Davenport now appeals the circuit court’s orders granting summary judgment in favor

of Hertz and Terex and the circuit court’s certification of Hertz’s judgment pursuant to Rule

54(b).

                                 STANDARD OF REVIEW

¶10.     We review a circuit court’s grant of summary judgment de novo. O’Neal Steel v.

Millette, 797 So. 2d 869, 872 (¶8) (Miss. 2001) (citation omitted). Under Rule 56(c) of the

Mississippi Rules of Civil Procedure, summary judgment should be granted when 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 judgment as a matter of law.” “The evidence must be viewed in

the light most favorable to the party against whom the motion has been made.” Jacox v.

Circus Circus Miss. Inc., 908 So. 2d 181, 184 (¶4) (Miss. Ct. App. 2005) (citation and

quotation marks omitted). As such, “[t]he movant bears the burden of persuading the trial

judge that . . . (1) no genuine issue of material fact exists, and (2) on the basis of the facts

established, he is entitled to judgment as a matter of law.” Palmer v. Biloxi Reg’l Med. Ctr.

Inc., 564 So. 2d 1346, 1355 (Miss. 1990). However, once the movant meets his burden, “the

non-movant may not rest on the allegations in his pleadings, and may not rely on a ‘mere

scintilla’ of evidence to defeat summary judgment.” Fruchter v. Lynch Oil Co., 522 So. 2d


                                               6
195, 198 (Miss. 1988). “The party opposing the motion must rebut [the movant party’s

argument], if he is to avoid entry of an adverse judgment, by bringing forth probative

evidence legally sufficient to make apparent the existence of triable fact issues.” Smith v.

First Federal Savings & Loan Ass’n of Grenada, 460 So. 2d 786, 792 (Miss. 1984). As such,

“[s]ummary judgment is appropriate when the non-moving party has failed to make a

showing sufficient to establish the existence of an element essential to the party’s case, and

on which that party will bear the burden of proof at trial.” Karpinsky, 109 So. 3d at 89

(¶11).

                                       DISCUSSION

         I.    Hertz’s Summary Judgment

¶11.     Here, Davenport argues that the circuit court erred when it determined that summary

judgment in Hertz’s favor was proper. In support of his argument, he asserts that there are

genuine issues of material fact regarding whether the claims against Hertz were barred by the

statute of limitations. More specifically, Davenport argues that, since Hertz was substituted

pursuant to Rule 9(h) for one of the John Doe corporations listed in the original complaint,

the amended complaint, bringing Hertz into the action, related back to the date of the filing

of the original complaint pursuant to Rule 15(c)(2) of Mississippi Rules of Civil Procedure.

Davenport asserts that this is so because he was ignorant of Hertz’s identity when he filed

his original complaint.

¶12.     Rule 9(h) provides:


                                              7
       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.

In addition, Rule 15(c)(2) provides that “[a]n 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.” We note that Davenport’s negligent-distribution

claim against Hertz was subject to a three-year statute of limitations. Miss. Code Ann. § 15-

1-49 (Rev. 2012). However, Davenport did not move to substitute Hertz for one of the John

Doe corporations until after the three-year statute of limitations had expired.

¶13.   Hertz argues that Rule 9(h) does not apply here because Davenport knew of Hertz’s

identity when he filed his original complaint, and, therefore, the amendment cannot relate

back pursuant to Rule 15(c)(2). Hertz also argues that, even if Davenport was ignorant of

Hertz’s identity at the time of the original filing, Rule 9(h) still does not apply because

Davenport did not exercise due diligence in trying to obtain such information.

¶14.   Davenport responds that a plaintiff who knows a fictitious defendant’s true name may

still be ignorant so long as the plaintiff does not know the facts that give him a cause of

action against the fictitious party. Davenport cites Womble v. Singing River Hospital, 618

So. 2d 1252 (Miss. 1993) (overruled on other grounds), where the Mississippi Supreme Court

established that

       [i]t is a principle of general application . . . that ignorance of the opposing
       party for fictitious party practice extends beyond mere lack of knowledge of

                                              8
       the opposing party’s name. 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.

Id. at 1267. However, we note that our supreme “[c]ourt has also acknowledged a

reasonable[-]diligence test [to be applied] when substituting unknown parties pursuant to

[Rule] 9(h).” Bedford Health Props. LLC v. Estate of Williams ex rel. Hawthorne, 946 So.

2d 335, 342 (¶13) (Miss. 2006).

¶15.    At the summary-judgment hearing addressing Hertz’s motion, Davenport failed to

specify how he learned of Hertz’s involvement with the case. Rather than informing the

court of when and from whom Davenport had obtained the information provided within his

discovery response, Davenport’s counsel simply asserted that he immediately sought leave

of the court to substitute the fictitious party with Hertz after receiving Davenport’s response

to United Rentals’ interrogatory number 13 in August 2012.

¶16.   The record reflects that in his original complaint, in the venue section, Davenport

stated that “Defendant Hertz’s registered agent [was] located in Rankin County, Mississippi.”

Davenport argues that this statement regarding Hertz was due to a typographical error

because his counsel initially thought that Hertz had distributed the man buggy to JKS. We

find it inexplicable how the inclusion of Hertz as a defendant in the venue section of the

original complaint could have been a typographical error if Davenport’s counsel initially

thought that the man buggy had been distributed by Hertz. Since Davenport named Hertz in

the venue section of his complaint but not in the caption, it seems more logical that the


                                              9
failure to include Hertz as one of the named parties in the caption may have been an

oversight, but that is not the argument Davenport makes. In any event, it is not subject to

legitimate debate that Davenport’s explanation for why Hertz had been named in the venue

section of the original complaint—that his counsel initially thought that Hertz had distributed

the man buggy—proves that Davenport was aware of Hertz’s identity as that term is defined

in Womble, because at the time that Davenport filed his complaint, he knew of Hertz’s role

as a distributor of the man buggy.

¶17.   Davenport also argues that knowing Hertz’s name was not enough because there are

several Hertz entities. We accept Davenport’s argument that there are several entities

bearing the Hertz name, but that does not excuse his failure to name Hertz as a party in his

original complaint. That could have been sorted out during the discovery process. As

previously mentioned, according to David’s affidavit, the man buggy contained a “visible”

Hertz label. It is well established in our jurisprudence that a plaintiff cannot use Rule 9(h)

to “sleep on [his] rights.” Doe v. Miss. Blood Servs. Inc., 704 So. 2d 1016, 1019 (¶13) (Miss.

1997). Therefore, Davenport’s argument that he did not know Hertz’s legal name is

unpersuasive. He possessed enough information to determine the legal entity that owned the

man buggy bearing the Hertz label. Therefore, there is no genuine issue of material fact that

Davenport was not ignorant of Hertz’s identity.

¶18.   Even accepting Davenport’s argument that at the filing of his original complaint he

was ignorant of Hertz’s identity and involvement with the man buggy that injured him, he


                                              10
is still required to show that he made a reasonably diligent effort to learn the identity of the

John Does named in his complaint before the claims asserted in his amended complaint could

relate back to the time of the filing of his original complaint. And the “ reasonably diligent

inquiry into the identity of the unknown defendant [must be made] within the limitation

period” in order for a substitution under Rule 9(h) to allow a claim to relate back to the date

of the original pleading. Santangelo v. Green, 920 So. 2d 521, 525 (¶16) (Miss. Ct. App.

2006) (internal citations and quotations marks omitted). Hertz argues that Davenport failed

to show that he made such efforts. We agree.

¶19.   Our supreme court has established that

       [r]easonable diligence is a standard only for determining the efforts made to
       discover the true identity of a named fictitious party under Rule 9(h). 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.

Bedford, 946 So. 2d at 342 (¶13) (internal citations and quotation marks omitted). We note

that in Davenport’s response to Hertz’s motion to dismiss, he stated that “Plaintiff knew of

Defendant Hertz’s name in general at the time the [o]riginal [c]omplaint was filed.”

However, Davenport argues that he did not know the identity of the specific Hertz entity

involved with the man buggy and that prior to the expiration of the statute of limitations, he

conducted reasonable inquiries and investigations into what entities were involved in the

subject accident. He also argues that he received conflicting and incomplete information,

causing a lack of sufficient information to initially identify all of the real parties in interest.


                                                11
Davenport further argues that he did not have access to contractual agreements between the

pertinent parties, nor the means to readily obtain the true identities of the two John Doe

Corporations.

¶20.   Hertz cites Doe, Bedford, and Santangelo in support of its argument that Davenport

failed to make a reasonably diligent effort to establish the identity of the fictitious parties.

On the other hand, Davenport attempts to distinguish those cases.

¶21.   In Doe, the plaintiff filed a wrongful-death action against several defendants and

fictitious parties almost three years after her mother’s death, asserting that the negligent

blood transfusion given to her mother had infected her mother with HIV and, ultimately,

caused her death. Doe, 704 So. 2d at 1017 (¶4). One of the named defendants removed the

case to federal court. Id. at (¶5). While there, the plaintiff moved to dismiss the defendant

that had removed the case to federal court and asked for permission to name an additional

defendant. Id. Apparently, the plaintiff’s motion was granted and the case remanded back

to the circuit court. Id. On remand to the circuit court, the newly added defendant filed a

motion to dismiss, and the circuit court granted the motion. Id. The record reflected that the

plaintiff had made telephonic inquiries five days prior to the running of the statute of

limitations and only obtained limited information before the limitations period expired. Id.

at (¶3). The supreme court found that Rule 9(h) did not apply, as the plaintiff had failed to

exercise reasonable diligence in ascertaining the defendant’s true identity prior to the running

of the statute of limitations. Id. at 1019 (¶13). The supreme court reasoned that the


                                              12
plaintiff’s inquiry was not diligent and that Rule 9(h) does not provide an avenue for

plaintiffs to “sleep” on their rights. Id.

¶22.    In Bedford, the Mississippi Supreme Court concluded that with a reasonably

diligent inquiry, the plaintiff could have discovered the proper name of the nursing home

since she visited the home several times in a month, the nursing home was across the street

from the church the plaintiff attended, and the plaintiff's deposition testimony revealed that

she knew the proper name. Bedford, 946 So. 2d at 343 (¶17). In Santangelo, this Court held

that the plaintiff was not reasonably diligent because the new defendant was her treating

physician, and her medical records would have revealed his identity. Santangelo, 920 So.

2d at 528 (¶21). As such, this Court ignored that the medical records were voluminous and

held by third parties and found that the plaintiff was not reasonably diligent because those

records, though voluminous, contained information regarding the identity of the fictitious

defendant. Id. at 526-27 (¶¶20-21).

¶23.    Davenport argues that Doe, Bedford, and Santangelo are distinguishable from this

case inasmuch as in each of those cases, unlike here, the plaintiff failed to make a reasonably

diligent effort to ascertain the identity of the correct party. As an example, he points out that

in Doe the plaintiff waited nearly seven years to bring a cause of action against the new

defendants, had access to medical records that would have revealed the potential defendants’

identities, and never substituted the fictitious names with the alleged real parties in interest.

¶24.   In response, Hertz argues that the aforementioned cases actually support its case


                                               13
because they show the repercussions of a plaintiff not making any substantive and exhaustive

inquiries to ascertain the true identity of a negligent party prior to the statute of limitations

running. Hertz contends that Davenport had to know Hertz’s proper name in order to

determine the proper registered agent mentioned in the venue section of his original

complaint.    Citing this Court’s decision in Santangelo, Hertz also            contends    that

Davenport’s assertion that there was a barrage of information when he tried to investigate

the case is unsubstantiated.

¶25.   We agree with Hertz’s version of how the above cases relate to the matter at hand.

Unlike the plaintiff in Doe, Davenport has only offered general allegations of his

investigation and diligent efforts to ascertain the identity of the fictitious defendant. In

addition, like the plaintiff in Bedford, Davenport admitted that he knew Hertz’s proper name

at the time of the alleged incident and when he filed the original complaint. As stated, we

find that Davenport knew of Hertz’s identity and involvement with the man buggy prior to

his filing his original complaint, but assuming that we are incorrect on that point, we also

find that had Davenport exercised reasonable diligence, he could have ascertained Hertz’s

proper identity prior to filing his original complaint. In summary, we find that Davenport

failed to prove that he lacked knowledge of Hertz’s identity prior to the filing of his original

complaint, but even if he did, he failed the reasonable-diligence requirement to ascertain

Hertz’s identity. Therefore, we affirm the circuit court’s grant of summary judgment in favor

of Hertz, as the statute of limitations had run when Davenport substituted Hertz for one of


                                               14
the John Doe corporations pursuant to Rule 9(h) without the benefit of the relating-back

provision of Rule 15(c)(2).

       II.    Terex’s Summary Judgment

¶26.   Davenport also argues that the circuit court erred in granting summary judgment in

favor of Terex. However, we find that this matter is improperly before this Court. The

summary-judgment order from which Davenport appeals dismisses Terex but fails to dismiss

the remaining defendants. This case involved multiple parties and claims in the circuit

court.5 Rule 54(b) provides, in pertinent part:

       When more than one claim for relief is presented in an action . . . or when
       multiple parties are involved, the court may direct the entry of a final judgment
       as to one or more but fewer than all of the claims or parties only upon an
       expressed determination that there is no just reason for delay and upon an
       expressed direction for the entry of the judgment. In the absence of such
       determination and direction, any order or other form of decision, however
       designated[,] which adjudicates fewer than all of the claims or the rights and
       liabilities of fewer than all the parties shall not terminate the action as to any
       of the claims or parties and the order or other form of decision is subject to
       revision at any time before the entry of judgment adjudicating all the claims
       and the rights and liabilities of all the parties.

The order granting summary judgment in favor of Terex did not include a Rule 54(b)


       5
         When Davenport appealed from the summary judgment in favor of Terex, the
following actions had occurred in his multi-party lawsuit: (1) On March 25, 2013, Davenport
had received a default judgment against Dynamic Services, as to liability only, with the issue
of damages to be reserved for a subsequent hearing to determine the amount of damages; (2)
On July 3, 2013, Davenport, by court order, had dismissed with prejudice his claims against
Defendant United Rentals; and (3) On October 28, 2013, the circuit court had granted
summary judgment in favor of Hertz and certified the judgment pursuant to Rule 54(b).
However, nothing in the record shows that JKS had been dismissed, although it had filed a
motion for summary judgment.

                                              15
certification. Therefore, any appeal therefrom would be interlocutory, requiring permission

from the Mississippi Supreme Court, which was not obtained. Consequently, we must

dismiss the Terex appeal for lack of jurisdiction.

       III.   Rule 54(b) Final Judgment

¶27.   Davenport also argues that the circuit court erred in granting Rule 54(b) certification

of the Hertz summary judgment. We apply an abuse-of-discretion standard when reviewing

a Rule 54(b) final judgment. Laird v. ERA Bayshore Realty, 841 So. 2d 178, 180 (¶7) (Miss.

Ct. App. 2003). “Where a summary judgment dismisses some of the parties to a lawsuit, but

not all of the parties, Rule 54(b) . . . governs.” Fairley v. George Cty., 800 So. 2d 1159,

1161 (¶4) (Miss. 2001). “A 54(b) certificate should be reserved for a case where a delay in

the appeal might result in prejudice to a party.” Cox v. Howard, Weil, Labouisse, Friedrichs

Inc., 512 So. 2d 897, 900 (Miss. 1987).

¶28.   The core of Davenport’s argument here is that because the circuit court had not ruled

on his pending motion for reconsideration, it erred in certifying Hertz’s summary judgment

as a Rule 54(b) judgment. In support of his argument, Davenport contends that Hertz had

failed to provide any facts or evidence demonstrating any prejudice that it would suffer by

remaining as a party in the case until his motion for reconsideration was decided. Davenport

also insists that final judgments under Rule 54(b) are rare and that the courts are to consider

the following factors when determining whether a final judgment should be issued: “[1]

Whether the claims under review [are] separable from the others remaining to be adjudicated


                                              16
and [2] whether the nature of the claims already determined was such that no appellate court

would have to decide the same issues more than once even if there were subsequent appeals.”

Reeves Constr. & Supply Inc. v. Corrigan, 24 So. 3d 1077, 1083 (¶16) (Miss. Ct. App. 2010)

(internal citations and quotations marks omitted). Davenport also contends that Hertz’s

argument that his claim against Hertz is in no way related to the other claims in this matter

is erroneous. As such, Davenport postulates that, but for Hertz’s involvement, the incident

would not have occurred, and Davenport would not have had claims against any of the other

parties.

¶29.   In response, Hertz argues that the Rule 54(b) final judgment was proper based on

significant anticipated delay and the distinct nature of Davenport’s remaining claims against

other defendants. Hertz contends that it would be unfair for it to be forced to wait for a final

judgment. Hertz also argues that it is not relevant that the claims against the other defendants

may have risen out of common facts and that the measure is whether the claims against the

defendants are distinct in nature. Ind. Luberman’s Mut. Ins. v. Curtis Mathes Mfg., 456 So.

2d 750, 752-53 (Miss. 1984).

¶30.   We agree with Hertz and find that Davenport’s motion for reconsideration did not

prevent the court from entering a final judgment in favor of Hertz. Davenport has failed to

offer any authority for his argument that a court errs by granting a motion for entry of a Rule

54(b) judgment while an opposing motion for reconsideration is still pending. Moreover, the

record reflects that the circuit court denied Davenport’s motion for reconsideration on the


                                              17
same day that it granted Hertz’s Rule 54(b) final judgment. Therefore, we find that the circuit

court did not abuse its discretion in granting the 54(b) final judgment and dismissing the

claims against Hertz. This issue is without merit.

                                       CONCLUSION

¶31.   As to Davenport’s claims against Hertz, we find that summary judgment was properly

granted in favor of Hertz, as the statute of limitations had run, and Hertz was not properly

substituted pursuant to Rule 9(h), but even if it was, the relating-back provision of Rule

15(c)(2) did not apply because Davenport failed to establish that he utilized reasonable

diligence in an effort to timely identify Hertz as a fictitious party. Also, we cannot find that

the circuit court abused its discretion in granting a Rule 54(b) certification of Hertz’s

summary judgment. Consequently, we affirm the judgment of the Circuit Court of Rankin

County granting summary judgment in favor of Hertz. However, we dismiss the appeal of the

summary judgment granted to Terex as not a final, appealable judgment.

¶32. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS
AFFIRMED AS TO HERTZ, AND THE APPEAL OF THE JUDGMENT IN FAVOR
OF TEREX IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
THE APPELLANT.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, WILSON AND
GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN
PART WITHOUT SEPARATE WRITTEN OPINION.              FAIR, J., NOT
PARTICIPATING.




                                              18
