Boahen v. Trifiletti
United States District Court for the District of Connecticut
September 19, 2018, Decided; September 19, 2018, Filed
No. 3:18-cv-00171 (VLB) Lead Case; No. 3:18-cv-00075 (VLB) Member Case; No. 3:18-cv-00713 (VLB) Member Case

Reporter
2018 U.S. Dist. LEXIS 160276 *
KWAME BOAHEN, Plaintiff, v. PHILLIP TRIFILETTI, ET AL., Defendants.LM INSURANCE CORP., ET AL., Plaintiffs, v. KWAME BOAHEN, ET AL., Defendants.PHILLIP TRIFILETTI, Plaintiff, v. KWAME BOAHEN, ET AL., Defendants.

MEMORANDUM OF DECISION DENYING BOAHEN’S MOTIONS TO DISMISS COUNTERCLAIMS [DKT. NOS. 21 AND 22] AND GRANTING BOAHEN AND ENVIRO’S MOTION TO DISMISS AMENDED COMPLAINT [*3] [DKT. NO. 25]
The motions now before the Court arise out of the consolidation of three individual cases resulting from the same factual background.1 On December 13, 2017, Kwame Boahen (“Boahen”), a Connecticut resident, filed suit against Philip Trifiletti (“Trifiletti”) and Trifiletti’s employer, UPS Ground Freight, Inc. (“UPS Freight”), in Connecticut Superior Court for negligence. Trifiletti and UPS Freight removed the case to Federal Court in the District of Connecticut on January 30, 2018. [Case No. 18-cv-00171-VLB, hereinafter “Case 171”]. Trifiletti and UPS Freight both filed counterclaims on February 6, 2018, which Boahen now moves to dismiss.
Trifiletti, a New Jersey resident, brought the second case on January 10, 2018, in the Eastern District of Pennsylvania for negligence against Boahen and Boahen’s employer Enviro Express, Inc. (“Enviro”). [Case No. 18-cv-00713-VLB, hereinafter “Case 713”]. The Court transferred the case to the District of Connecticut on April 24, 2018. [18-cv-713, Dkt. No. 4].
On January 12, 2018, UPS Supply Chain Solutions, Inc., (“UPS Supply”) and UPS Freight (collectively “UPS”), LM Insurance Corporation (“LM”), as subrogee of UPS, and Helmsman Management [*4] Services LLC (“Helmsman”), as Third-Party Administrator for UPS (collectively the “UPS Parties”) filed a complaint against Boahen and Enviro in the District of Connecticut for negligence. [Case No. 18-cv-00075-VLB, hereinafter “Case 75”]. Boahen and Enviro now move to dismiss.
The Court consolidated the cases on April 6, 2018.
I. Background
Boahen, is a resident of Bridgeport, Connecticut and at all times herein was employed by Enviro. [Dkt. No. 1 (Boahen Compl.) ¶¶ 2, 3]. Trifiletti is a resident of Roebling, New Jersey and at all times herein was employed by UPS Freight. [Dkt. No. 1 ¶ 4]. On January 12, 2016, Boahen was driving a tractor-trailer owned by Enviro northbound on Interstate 95 (“I-95”). [Dkt. No. 1 ¶¶ 3, 5]. While driving, Boahen’s truck became disabled. [Dkt. No. 1 ¶ 5]. Boahen pulled into the right shoulder. [Dkt. No. 1 ¶ 5]. On the same day, Trifiletti was driving a truck with an attached trailer registered to UPS Freight northbound on I-95 in Connecticut. [Dkt. No. 11 (Trifiletti Countercl.) ¶¶ 2, 31]. At around 7:14 a.m., Trifiletti and Boahen were involved in a motor vehicle accident (“the Accident”). [Dkt. No. 11 ¶ 6].
Boahen filed suit in Case 171 on December 13, [*5] 2017. Trifiletti and UPS Freight both filed counterclaims on February 6, 2018, which Boahen now moves to dismiss.
On January 12, 2018, the UPS Parties filed a complaint in Case 75 against Boahen and Enviro. Process was delivered to the marshal on January 16, 2018 and the marshal served Defendants on January 23 and 24, 2018. Boahen and Enviro now move to dismiss.
II. Motions to Dismiss
a. Motions to Dismiss UPS Freight’s and Trifiletti’s Counterclaims
On February 6, 2018, UPS Freight and Trifiletti answered Boahen’s Complaint in Case 171 and each filed a counterclaim (the “Counterclaims”) against Boahen for negligence. [Dkt. No. 10 (UPS Freight Answer Countercl.) at 11; Dkt. No. 11 (Trifiletti Answer Countercl.) at 11]. The Counterclaims brought by UPS Freight and Trifiletti are identical. Boahen moved to dismiss the counterclaims in two separate motions filed on April 4, 2018 for failure to comply with the statute of limitations. [Dkt. Nos. 20, 22 (Mots. Dismiss)]. Boahen’s Motions to Dismiss the Counterclaims and supporting briefing are substantively identical and Trifiletti’s and UPS Freight’s opposition briefs are identical. [Dkt. Nos. 20-23; 34 and 35 respectively]. Therefore, the [*6] two motions are addressed together in the following analysis and the decision applies to both.
Boahen moves to dismiss both Counterclaims on the grounds that they are untimely due to an expired statute of limitations. [Dkt. No. 21 (Mot. Dismiss UPS Countercl. Mem.) at 1; Dkt. No. 23 (Mot. Dismiss Trifiletti Countercl. Mem.) at 1]. UPS Freight and Trifiletti assert that counterclaims can be brought at any time before the formal close of pleadings under the relevant statute of limitations. [Dkt. No. 34 at 1; Dkt. No. 35 at 1]. Furthermore, UPS Freight and Trifiletti argue that Boahen’s Motions to Dismiss the Counterclaims are untimely because they were brought more than twenty-one days after the Counterclaims were asserted. [Dkt. No. 34 at 5; Dkt. No. 35 at 5].
The applicable statute of limitations allows a suit to be commenced within two years of the date of injury but for an exception for counterclaims. Conn. Gen. Stat. § 52-584. The statute provides “no action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the [*7] exercise of reasonable care should have been discovered . . . except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.” Conn. Gen. Stat. § 52-584 (emphasis added). The statute is very clear that a counterclaim is not subject to the two-year statute of limitations and can be brought at any time before the pleadings in an action are closed. See Mulcahy v. Mossa, 89 Conn. App. 115, 872 A.2d 453, 459 (Conn. App. Ct. 2005) (“Section 52-584 expressly provides that a counterclaim may be filed at any time prior to the close of pleadings, irrespective of whether the statute of limitations governing the counterclaim has run.”). UPS Freight and Trifiletti properly asserted their Counterclaims before the close of pleadings. Therefore, the Counterclaims are timely and Boahen’s Motions to Dismiss, [Dkt. Nos. 20 and 22], are DENIED.
Further, a party must file a responsive pleading to a counterclaim within twenty-one days after being served with the claim. Fed. R. Civ. P. 12(a)(1)(B). Trifiletti and UPS Freight filed the Counterclaims on February 6, 2018. See [Dkt. No. 10; Dkt. No. 11]. Accordingly, responsive pleadings must have been filed on or before February 27, 2018. Boahen did not file the Motions to Dismiss the Counterclaims until April 4, 2018. [Dkt Nos. 20 and [*8] 22]. As such, Boahen’s Motions to Dismiss the Counterclaims, [Dkt. Nos. 20 and 22], are further DENIED as untimely, in addition to failing on the merits.
b. Motion to Dismiss the UPS Parties’ Amended Complaint in Case 75
On February 16, 2018, Boahen and Enviro moved to dismiss the UPS Parties’ Amended Complaint in Case 75 arguing that the action was not commenced within the applicable Connecticut statute of limitations. [18-cv-75, Dkt. No. 20 (Mot. Dismiss Am. Compl. Mem.) at 1]. The UPS Parties argue that their action was timely commenced. [Dkt. No. 48 (UPS Parties’ Opp’n) at 2].
In diversity cases, the relevant state statute of limitations governs the timeliness of claims and state law determines the commencement of an action. Guaranty Trust Co. v. York, 326 U.S. 99, 111-12, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945); Walker v. Armco Steel Corp., 446 U.S. 740, 753, 100 S. Ct. 1978, 64 L. Ed. 2d 659 (1980) (“state service requirements which are an integral part of state statute of limitations should control in an action based on state law which is filed in federal court under diversity jurisdiction”). The UPS Parties acknowledge this fact. [Dkt. No. 48 at 5].
They further acknowledge that, under Connecticut law, a civil action is commenced upon service on the defendant. Id.; accord Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996) (“This court has long held that an action is brought once the writ, summons and complaint have been served [*9] upon a defendant.”).
The applicable Connecticut statute of limitations is § 52-584 of the Connecticut General Statute. The statute provides, in relevant part, that “no action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . .” Conn. Gen. Stat. § 52-584.
The Accident occurred on January 12, 2016. As such, under § 52-584, the parties had until January 12, 2018 to commence any resulting actions. The UPS Parties electronically filed their Complaint with the court at 4:25 p.m. on Friday, January 12, 2018, and their Amended Complaint twenty-four minutes later. Immediately thereafter, at 4:50 p.m., the UPS Parties electronically requested that the clerk issue an electronic summons as to all defendants. As stated on the Court’s website,2 the Clerk’s Office had closed at 4:00 p.m., fifty minutes earlier. The summons was issued by the Clerk of Court on the next court day, Tuesday, January 16, 2018. [Dkt. No. 12 (Electronic Summons Issued)]. The summons and Amended Complaint were delivered to the state marshal that [*10] same day. [Dkt. No. 48 at 1-2]. Defendants were served on January 23 and 24, 2018, more than a week after the statutory deadline. Id.
The UPS Parties contend that “[t]he Complaint was not required to be served on Defendants prior to the expiration of the statute” because of one of Connecticut’s “liberal savings provisions.” Id. at 1, 7. Specifically, the UPS Parties invoke § 52-593a(a) of the Connecticut General Statute in an attempt to save the action based on a thirty-day grace period afforded to the marshal to deliver process. Id. at 5, 7.
Section 52-593a(a) provides that “a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal, constable or other proper officer within such time and the process is served, as provided by law, within thirty days of the delivery.” Conn. Gen. Stat. § 52-593a(a) (2012).
Despite the fact that the summons and Amended Complaint were not delivered to the state marshal by the January 12, 2018 deadline, the UPS Parties argue § 52-593a(a) should be read to apply here given Connecticut courts’ preference to avoid termination of an action due to technical imperfections and to secure the litigant his day in court. [Dkt. No. 48 at 6 (citing Doe v. Town of West Hartford, 328 Conn. 172, 182, 177 A.3d 1128 (2018) [*11] ; Dickerson v. Pincus, 154 Conn. App. 146, 154, 105 A.3d 338 (2014))]. Further, the UPS Parties invoke the Connecticut Supreme Court’s guidance that this remedial provision should “be afforded liberal construction in favor of those whom the legislature intended to benefit” so as to “advance the remedy rather than to retard it.” Doe, 328 Conn. at 182. But the UPS Parties cite no legal authority in support of their interpretation, and a liberal construction of § 52-593a(a) cannot save them here, as the express terms of the statute, as well as authority from the Connecticut Supreme Court, preclude such an outcome.
The cases cited by the UPS Parties advising liberal construction consider different facts, and further, they explicitly require the action the UPS Parties have failed to take here. In Doe v. Town of West Hartford there was a dispute as to whether plaintiff’s counsel delivered the complaint and summons to the marshal within the statute of limitations as required by § 52-593a(a)—the marshal had failed to endorse the date of delivery on the return of service as required by § 52-593a and could not recall what day he had received the summons and complaint, but plaintiff’s counsel testified that the marshal had retrieved the documents from counsel’s office before the statute of limitations had run. 328 Conn. at 177-78. The defendants argued that the marshal’s failure to comply with § 52-593a’s endorsement requirement precluded the plaintiff from invoking the remedial extension of the statute of limitations. Id. at 181. The Connecticut Supreme Court determined that the endorsement requirement was directory rather than mandatory and denied summary judgment because there was a disputed issue of material fact [*12] as to whether the marshal received the materials in time. Id. at 185.3 Here, there is no dispute that the marshal did not receive the materials in time.
The Doe Court bore in mind the “remedial purpose” of the statute such that “it should not be given an overly restrictive construction that would defeat its curative goal.” Id. at 186. The Doe Court also emphasized that the “statute’s purpose is ‘to prevent a party from losing the right to a cause of action because of untimely service on the part of the marshal by giving the marshal additional time in which to effect proper service on the party in question'” and as such, in order “[t]o invoke the protection of the statute, a party ‘must deliver the writ to the marshal within the applicable statute of limitations.'” Id. at 183 (emphasis in original) (quoting Tayco Corp. v. Planning & Zoning Comm’n, 294 Conn. 673, 682, 986 A.2d 290 (2010)).
Indeed, the Connecticut Supreme Court expressly held in Tayco Corporation v. Planning and Zoning Commission that, “for the purposes of § 52-593a, delivery of process to the marshal must be made within the applicable limitations period.” 294 Conn. at 688. The Court clarified that the statute “does not give the litigant time beyond the statute of limitations in which to deliver process to the marshal for service” as “[s]uch a reading would [*13] run contrary to the intent behind § 52-593a(a) and would frustrate the purpose of statutes of limitation.” Id. at 686 (emphasis in original).
The Tayco Court went on to hold that delivery is not complete until the marshal is given instruction to effectuate service, and further counseled that, “[i]n the even that the trial court determines that [the marshal] did not receive instruction to serve process on the defendant within the applicable statute of limitations, the motion to dismiss should be granted and the case should be dismissed for lack of subject matter jurisdiction.” Id. at 682.
Generally speaking, courts have denied the relief of § 52-593a(a) and dismissed an action where the plaintiff failed to deliver process to the marshal within the statutory period. See Johnson v. Preleski, 174 Conn. App. 285, 166 A.3d 783, 791 (Conn. App. Ct. 2017) (“Because we conclude that the petitioner failed to demonstrate that process, in any form, was personally delivered to a state marshal within the limitation period, we conclude that the petitioner is unable to avail himself of the relief afforded by § 52-593a” and “[t]he court properly dismissed the action.”); Antonacci v. Town of Watertown Bd. of Assessment Appeals, 2009 Conn. Super. LEXIS 1976, *5 (Conn. Super. Ct. July 21, 2009) (granting motion to dismiss because defendant was not served within the time to appeal and § 52-593a(a) did not apply because the appeal was not delivered to the marshal within [*14] the time to appeal). The same is required here.
The UPS Parties admit that the summons and complaint were delivered to the marshal after the statute of limitations had run. Indeed, the UPS Parties could not have delivered the summons and complaint to the marshal by the expiration of the statute of limitations because the complaint and the request for issuance of a summons were not filed with the Clerk of Court until after the Clerk’s Office had closed at 4:00 p.m. on the date the statute of limitations ran. [18-cv-75, Dkt. No. 1 (Compl.); 18-cv-75, Dkt. No. 6 (Am. Compl.)]. That day was a Friday, the court was closed for a national holiday on Monday and the summons was not issued until the following Tuesday. [Dkt. No. 12 (Electronic Summons Issued)]. The UPS Parties failed to meet the express requirements of § 52-593a(a) and therefore cannot take advantage of the savings statute.
The UPS Parties make further equitable arguments that Boahen and Enviro were in no way prejudiced by being served when they were because they already had notice of the ongoing litigation and the savings provision would have allowed service later than it occurred. [Dkt. No. 48 at 7]. But the UPS Parties’ cite no legal authority [*15] for this argument. Policy considerations are no doubt the reason why the saving provision exists, permitting a party to deliver the summons and complaint to the marshal, rather than having to effect service by the expiration of the statute of limitations, in order to get to the merits. However, where a party has plainly failed to qualify under a savings provision further leeway eviscerates the rule altogether.
As the UPS Parties acknowledge, they could have brought the action in Connecticut State Court where counsel may commence the action by delivering the summons and complaint to a state marshal on the last day of the statute of limitations. Conn. Gen. Stat. §§ 52-45a, 52-593a. The UPS Parties chose not to utilize this allowance, instead filing in federal court on the last day of the statutory period. The Court declines to assume the role of a legislator and judicially amend the statute.
For the foregoing reasons, Boahen and Enviro’s Motion to Dismiss the UPS Parties’ Amended Complaint is GRANTED. This dismissal is of course without prejudice to any rights the UPS Parties may have to file a second action pursuant to Conn. Gen. Stat. §52-592 or any other applicable statute or otherwise revive their claims.
III. Conclusion
For the foregoing [*16] reasons, Boahen’s Motion to Dismiss UPS Freight’s Counterclaim, [Dkt. No. 20], and Motion to Dismiss Trifiletti’s Counterclaim, [Dkt. No. 22], are DENIED and Boahen and Enviro’s Motion to Dismiss the UPS Parties’ Amended Complaint, [Dkt. No. 25], is GRANTED and the Court directs the clerk to close Case No. 18-cv-00075.
IT IS SO ORDERED.
/s/ Hon. Vanessa L. Bryant
United States District Judge

2018 WL 4177528

NOT YET RELEASED FOR PUBLICATION.
Supreme Court of Alabama.
EX PARTE AMERICAN SWEEPING, INC.
(In re Alabama Department of Transportation
v.
TK & S Trucking, LLC, et al.)
1170461
|
August 31, 2018
Synopsis
Background: Injured driver of a tractor-trailer truck who had intervened in state Department of Transportation’s action to recover bridge-repair costs from estate of driver of tractor-trailer truck that had collided with the rear of injured driver’s tractor-trailer truck amended his complaint in intervention for a second time to replace a fictitiously named defendant, which had been added in the first amended complaint in intervention, with sweeping and cleaning company that was performing operations on a bridge pursuant to a contract with the state Department of Transportation when its “buffer vehicle” was rear-ended shortly before the collision of the two tractor-trailers on the same bridge. The Circuit Court, Baldwin County, No. CV-15-901080, denied sweeping and cleaning company’s motion to dismiss on limitations grounds. Sweeping and cleaning company petitioned for a writ of mandamus.

[Holding:] The Supreme Court, Sellers, J., held that the injured driver’s failure to exercise due diligence to identify the cleaning and sweeping company precluded entitlement to the benefit of relation-back principles.

Petition granted; writ issued.

Parker, J., concurred in the result.

Shaw, J., dissented and filed opinion in which Bryan, J., joined.

West Headnotes (6)

[1]
Mandamus
Nature and scope of remedy in general

A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: (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.
Cases that cite this headnote

[2]
Mandamus
Dismissal or nonsuit, and reinstatement

A writ of mandamus is the proper means by which to seek review of a denial of a motion to dismiss filed by a party originally listed as a fictitiously named defendant when the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.
Cases that cite this headnote

[3]
Limitation of Actions
Amendment of defects

Injured driver of tractor-trailer truck that was hit in the rear by a second tractor-trailer truck on a bridge after a previous collision between a motor vehicle and a “buffer vehicle” for a cleaning and sweeping company that was working on the bridge pursuant to a state contract had caused traffic on the bridge to come to a stop failed to exercise due diligence to discover the identity of the cleaning and sweeping company, and thus injured driver’s substitution of the cleaning and sweeping company for a fictitiously named defendant in injured driver’s first amended complaint in intervention in state Department of Transportation’s action against estate of driver of second tractor-trailer truck to recover bridge-repair costs could not relate back to the date of the filing of the first amended complaint; cleaning and sweeping company’s identity could easily have been discovered from state Department of Transportation. Ala. R. Civ. P. 9(h), 15(c).
Cases that cite this headnote

[4]
Limitation of Actions
Amendment of defects

To be entitled to the benefit of relation-back principles, the plaintiff must act with due diligence to ascertain a fictitiously named defendant’s true name and to promptly amend the complaint to correctly identify that defendant. Ala. R. Civ. P. 9(h), 15(c).
Cases that cite this headnote

[5]
Limitation of Actions
Amendment of defects

The principal reason for rule on fictitious parties is to toll the statute of limitations in emergency cases where the plaintiff knows he has been injured and has a cause of action against some person or entity, but has been unable to ascertain through due diligence the name of that responsible person or entity. Ala. R. Civ. P. 9(h).
Cases that cite this headnote

[6]
Limitation of Actions
Amendment of defects

The test for determining whether a plaintiff has exercised due diligence to obtain the identities of fictitiously named defendants, as required to be entitled to the benefit of relation-back principles, is whether the plaintiff knew, or should have known, or was on notice, that the substituted defendants were in fact the parties described fictitiously. Ala. R. Civ. P. 9(h), 15(c).
Cases that cite this headnote

Petition for writ of mandamus (Baldwin Circuit Court, CV-15-901080)
Opinion

SELLERS, Justice.

*1 American Sweeping, Inc. (“ASI”), petitions this Court for a writ of mandamus directing the Baldwin Circuit Court to vacate its January 9, 2018, order denying its motion to dismiss the claims asserted against it in the underlying action as time-barred and to enter a dismissal in its favor. We grant the petition and issue the writ.

Facts and Procedural History
On May 22, 2014, two separate accidents occurred on the Interstate 65 bridge crossing the Mobile-Tensaw River Delta (“the bridge”). On the day of the accidents, ASI was performing sweeping and cleaning operations on the bridge pursuant its contract with the Alabama Department of Transportation (“ALDOT”). The first accident on the bridge occurred when a vehicle collided with the rear of the “buffer vehicle” that was following the ASI street sweeper. That accident caused traffic on the bridge to come to a complete stop. Shortly thereafter, the second accident occurred when the tractor-trailer truck being driven by William Leedy McRae and owned by TK & S Trucking, LLC, collided with the rear of the tractor-trailer truck being operated by Robert James Sanders. That collision caused both tractor-trailer trucks to explode, killing McRae and injuring Sanders.

In August 2015, ALDOT filed a complaint against, among others, TK & S Trucking and the Estate of William Leedy McRae, seeking to recover the costs of the repairs made to the bridge as a result of the tractor-trailer explosion. In December 2015 and April 2016, Mr. Sanders and his wife, Barbara, filed individual complaints in intervention, asserting claims against the same defendants seeking monetary damages for medical bills, pain and suffering, and loss of consortium. Neither complaint in intervention included fictitious-party designations.

On May 17, 2016, the Sanderses amended their complaints in intervention to assert claims against fictitiously named defendants whose conduct, they alleged, wrongfully caused or contributed to the tractor-trailer accident involving Mr. Sanders.1

On August 31, 2017, the Sanderses once again amended their complaints to substitute ASI for a fictitiously named defendant, asserting that ASI had caused or contributed to the tractor-trailer accident by “failing to adhere to applicable statutory and administrative guidelines when it had a duty to do so.” ASI filed a motion to dismiss the claims against it on the ground that it was barred by the applicable two-year statute of limitations. See § 6-2-38(l), Ala. Code 1975.

On January 9, 2018, the trial court entered an order denying ASI’s motion to dismiss, in essence finding that the Sanderses’ substitution of ASI in the amended complaints of August 31, 2017, relates back to the filing of the complaints of May 17, 2016, which added fictitiously named defendants. ASI then petitioned this Court for a writ of mandamus.

Standard of Review
*2 [1] [2]A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: “ ‘(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 Nall, 879 So.2d 541, 543 (Ala. 2003)(quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001) ).
“A writ of mandamus is the proper means by which to seek review of a denial of a motion to dismiss filed by a party originally listed as a fictitiously named defendant ‘when “the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.” ’ Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 596–97 (Ala. 2005) (quoting Ex parte Snow, 764 So.2d 531, 537 (Ala. 1999) ) ….”
Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1290 (Ala. 2008).

Analysis
[3] [4] [5] [6]ASI argues that the trial court exceeded its discretion in denying its motion to dismiss because, it says, the Sanderses failed to exercise due diligence to discover its identity before the running of the limitations period; therefore, it says, the principles of fictitious-party pleading do not apply to the facts of this case. We agree. It is undisputed that the statute of limitations for filing a claim in the underlying action expired on or about May 22, 2016. On May 17, 2016, the Sanderses filed their amended complaints asserting claims against fictitiously named defendants. On August 31, 2017, the Sanderses amended their complaints to substitute ASI for a fictitiously named defendant–-well over a year after the two-year limitations period had expired. Therefore, the Sanderses’ claims against ASI are time-barred unless they have met the requirements of Rules 9(h) and 15(c), Ala. R. Civ. P.
“Rule 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 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.’
“This Court has held with regard to Rule 9(h) and the relation-back principles of Rule 15(c), Ala. R. Civ. P., that the plaintiff must state a cause of action against the fictitiously named party in the body of the original complaint; that the plaintiff’s ignorance of the true identity of the party intended to be sued is ‘in the sense of having no knowledge’ of the party’s identity at the time the complaint was filed; and that the plaintiff must have used due diligence in attempting to discover the identity of the fictitiously named party. Columbia Eng’g Int’l Ltd. v. Espey, 429 So.2d 955, 958 (Ala. 1983). To be entitled to the benefit of the relation-back principles, the plaintiff must act with due diligence to ascertain the fictitiously named defendant’s true name and to promptly amend the complaint to correctly identify that defendant.”
Ex parte Griffin, 4 So.3d 430, 436 (Ala. 2008). “[T]he principal reason for [Rule 9(h), Ala. R. Civ. P.,] is to toll the statute of limitations in emergency cases where [the] plaintiff knows he has been injured and has a cause of action against some person or entity, but has been unable to ascertain through due diligence the name of that responsible person or entity.” Columbia Eng’g Int’l, Ltd. v. Espey, 429 So.2d 955, 959 (Ala. 1983). The test for determining whether a plaintiff has exercised due diligence to obtain the identities of fictitiously named defendants 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).

*3 As indicated, the accidents on the bridge occurred on May 22, 2014. The Sanderses knew at the time they filed their amended complaints on May 17, 2016, that another person or entity on the bridge had caused the traffic to come to a complete stop, thereby causing or contributing to the tractor-trailer accident as a result of which Mr. Sanders was injured. However, the materials before us indicate that the Sanderses made little or no effort to research what event, i.e., the accident involving ASI’s buffer vehicle, caused the traffic on the bridge to come to a complete stop. For example, the Uniform Traffic Crash Report for the first accident identified Christopher Donaldson as the driver of the ASI buffer vehicle and listed “American Sweeping Inc” as the owner of that vehicle. See Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1291 (Ala. 2008) (finding that a substitution of a party for a fictitiously named party did not relate back when the plaintiff could have discovered an insurer’s identity by, among other things, reviewing an accident report). In addition, it is also clear from the materials supplied to us that ASI’s identity could have easily been discovered from ALDOT. Mr. Sanders testified that, following the tractor-trailer accident, he saw a vehicle on the shoulder of the bridge that he described as being state and/or ALDOT equipment, that he remembered having a conversation with a person who was presumably operating the vehicle or equipment, and that he gave that person’s name to a state trooper.2 Had the Sanderses issued written discovery to ALDOT, they could have learned that, shortly after the accidents, ALDOT had written a letter to ASI informing ASI that it had learned that ASI’s equipment had been involved in an accident on the bridge and requesting that ASI preserve, without modification, its equipment as evidence in the event of litigation. Mr. Sanders also had a conversation with Donaldson, the driver of the ASI buffer vehicle. Donaldson testified in his deposition that, following the tractor-trailer accident, he had a conversation with Mr. Sanders and that Mr. Sanders had asked him to “sign a statement” but that Donaldson told Mr. Sanders he could not sign a statement because he did not witness the second accident.3 Donaldson further testified that he gave his name to Mr. Sanders, but neither Mr. Sanders nor his attorney contacted him. Moreover, the Sanderses either knew or should have known of ASI’s identity as of July 8, 2016, when they received notification that TK & S Trucking, the owner of the truck being driven by McRae, had filed a notice of intent to issue a nonparty subpoena to ASI, seeking a multitude of materials, including ASI’s file relating to the accident that occurred on May 22, 2014, involving Donaldson, Donaldson’s personnel file, and all documents related to ASI’s contract with ALDOT. Also, Mr. Sanders was deposed on July 14, 2016, at which time it was brought to his attention by one of the questioning attorneys that Donaldson was the driver of the vehicle “that was parked on the shoulder [of the bridge] straddling the fog line.”

Finally, the most compelling information concerning the Sanderses’ knowledge of ASI’s identity comes from Jonathan Brown, an eyewitness to the tractor-trailer accident. Brown testified in his deposition, dated August 17, 2016, that he telephoned the Sanderses within a week after the tractor-trailer accident and at least two other times in 2014 to inquire about Mr. Sanders and that they all talked about the “accident that caused [Mr. Sander’s] accident [‘the street sweeper and the–-the guy falling asleep at the wheel’].”4 Brown also stated in his deposition that he had provided a sworn statement to the Sanderses’ attorney, apparently disclosing the events he had witnessed on the bridge on the day of the accidents. Based on their conversations with Brown in 2014, the Sanderses either knew or should have known or were on notice that ASI was in fact one of the parties who they alleged caused or contributed to the tractor-trailer accident in which Mr. Sanders was involved. Even more compelling is the fact that the Sanderses conceded in their motion in opposition to ASI’s motion to dismiss, filed on January 7, 2018, that the identity of ASI had been available for discovery for well over a year and a half.5 See Ex parte Bowman, 986 So.2d 1152, 1158 (Ala. 2007)(recognizing that a “delay in amending a complaint to substitute a named party for a fictitiously named party once information is available can defeat the availability of relation back”).

*4 Based on the foregoing, we conclude that the Sanderses did not act with due diligence in discovering ASI’s identity either before or after they filed their amended complaints on May 17, 2016, asserting claims against fictitiously named defendants. Accordingly, the Sanderses’ August 31, 2017, amended complaints substituting ASI for a fictitiously named defendant do not relate back to their May 17, 2016, complaints; the August 31, 2017, complaints naming ASI as a defendant are therefore time-barred.

Conclusion
ASI has shown a clear legal right to dismissal of the claims asserted against it by the Sanderses. We therefore grant the petition for a writ of mandamus and direct the trial court to vacate its order denying ASI’s motion to dismiss and to enter an order dismissing the claims asserted against ASI.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Main, Wise, and Mendheim, JJ., concur.
Parker, J., concurs in the result.
Shaw and Bryan, JJ., dissent.

SHAW, Justice (dissenting).

The issue presented by this petition for the writ of mandamus is whether the trial court exceeded its discretion in failing to grant a motion to dismiss filed by the petitioner, American Sweeping, Inc. (“ASI”). In that motion ASI contended that the respondents’ action was barred by the statute of limitations. ASI, however, has failed to provide this Court with a copy of that motion. I believe that this requires that the petition be dismissed; I thus respectfully dissent.

A petition for a writ of mandamus must contain “copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition.” Rule 21(a)(1)(E), Ala. R. App. P. The Court of Civil Appeals has described the consequence of the failure to provide necessary materials as follows:
“[P]etitions for the writ of mandamus that do not comply with Rule 21(a)(1)(E) by failing to include certain materials, such as court orders and other parts of the record essential to our consideration of the request for relief, are due to be dismissed. Without such materials this court is unable to conduct a meaningful review or to grant the relief sought in the petition. In other words, without providing this court with such materials, a petitioner is unable to demonstrate that he or she has a clear legal right to the relief requested.”
Ex parte Veteto, 230 So.3d 401, 404 (Ala. Civ. App. 2017) (citation omitted).

Caselaw also holds that our review of a mandamus petition “is limited to those facts that were before the trial court.” Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala. 2002). Evidence that was “not presented to the trial court will not be considered in a mandamus proceeding.” Ex parte Volvo Trucks North America, Inc., 954 So.2d 583, 587 (Ala. 2006). On mandamus review, appellate courts will not issue the writ on a ground or based on a contention that was not presented to the trial court for its consideration. Ex parte Ebbers, 871 So.2d 776, 786 (Ala. 2003). Thus, it is critical that this Court know what was argued and presented to the trial court to determine whether that court exceeded its discretion.

As stated above, ASI’s motion to dismiss, the denial of which we are called upon to review, is not attached to the petition as an exhibit, nor is it included in the other materials before us. We do not know what it alleged, what evidentiary exhibits were attached to it, or what legal authority was cited. In sum, we do not know the exact analysis the trial court was called upon to make or whether ASI properly supported its arguments. Under these circumstances, I find it impossible to determine whether the trial court was wrong, because I do not know what it was asked to consider.6

*5 ASI does provide this Court with the respondents’ opposition to the motion to dismiss. I note that it challenges ASI’s “rendition of facts” as “incomplete/wrong.” It does not tend to indicate what evidence was submitted in support of the motion to dismiss. I suppose from the opposition to the motion to dismiss we could make inferences as to what the motion argued; however, I do not believe that the standard of review on a mandamus petition, which generally requires a high burden of argument and support, allows us to make inferences in favor of a petitioner/movant.

There is evidence presented to this Court suggesting that the respondents knew, or should have known, that they had a potential claim against ASI before the statute of limitations ran, and the arguments in the petition are rather convincing. But we are not called upon to determine the applicability of the statute of limitations in the abstract; instead, we are asked to determine whether the trial court exceeded its discretion in denying ASI’s motion to dismiss. I have to know what was provided and argued to the trial court before I can determine whether its decision was wrong.7

In light of the above, I respectfully dissent.

Bryan, J., concurs.
All Citations
— So.3d —-, 2018 WL 4177528

Footnotes

1
The materials before us do not include the Sanderses’ initial complaints in intervention or their amended complaints asserting causes of action against fictitiously named defendants.

2
It appears from the materials before us that the equipment Mr. Sanders described as being state and/or ALDOT equipment on the shoulder of the bridge was presumably the ASI street sweeper and/or buffer vehicle.

3
It appears from the deposition excerpts that Donaldson and Mr. Sanders had a conversation near the tractor-trailer accident. Presumably then, Mr. Sanders asked Donaldson to give a statement about the tractor-trailer accident, and not the accident involving the ASI buffer vehicle.

4
The “guy falling asleep at the wheel” is presumably the person who was driving the vehicle that collided with the rear of the buffer vehicle that was following the street sweeper.

5
The Sanderses contended in their motion, as they contend in their response brief, that they did not have a “cognizable claim” against ASI until they learned in June 2017 of ALDOT’s policies and procedures requiring ASI to have two buffer vehicles when performing sweeping operations on the bridge. By making this argument, the Sanderses implicitly claim that they did not know that a cause of action existed against ASI at the time they filed their amended complaints on May 17, 2016, asserting claims against fictitiously named defendants. If such is the case, then Rule 9(h) would be inapplicable. However, ASI does not argue that the Sanderses’ May 17, 2016, complaint failed to state a cause of action against it. And, as indicated in note 1, the complaints asserting claims against fictitiously named defendants are not before us. See Columbia Eng’g Int’l, Ltd. v. Espey, 429 So.2d at 960 (emphasizing that “Rule 9(h) was not meant to excuse ignorance of the identity of a cause of action, but only ignorance of the name of the party against whom a cause of action is stated”); see also Threadgill v. Birmingham Bd. of Educ., 407 So.2d 129, 133 (Ala. 1981)(noting that “where the identity of a party is known at the time suit is filed, but where the cause of action against such defendant is unknown, Rule 9(h)… does not allow a relation back to the original filing of the complaint where the statute of limitations has run”).

6
ASI may have had a good reason for failing to provide a copy of its motion. Unfortunately, in my opinion, it prevents proper review of this mandamus petition.

7
The dismissal of this petition for failure to comply with Rule 21(a)(1)(E) would not act as a bar to further litigation as to whether the statute of limitations applies in this action, and ASI could continue to litigate this issue. Cutler v. Orkin Exterminating Co., 770 So.2d 67, 69 (Ala. 2000) (“[T]he denial of relief by mandamus does not have res judicata effect.”).