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[W] McGhee v. Martin12/12/2003
f her mother's treatment and death," and that, she said, she learned the name of the attending physician at a deposition of one of the named physicians. Id. at 64. However, the supreme court noted that the plaintiff had been aware that there was a question about the identity of the attending physician quite possibly since before filing suit, as there was an unidentified signature in the medical records she obtained, and at least since December 1986, when one of the named physicians had moved for summary judgment and proffered his own affidavit in which he "unequivocally stated that he was not on duty at the time of [the plaintiff's mother's] treatment and death." Id. at 65. The supreme court concluded that the plaintiff's actions were "unreasonable" and issued a writ of mandamus compelling the trial court to dismiss the physician from the action. Id.
In their response in opposition to McGhee's "Motion to Substitute Fictitious Parties" and at the hearing on the motion, the co-employees asserted that McGhee's attorney had in his possession, since April 2000, maintenance records on the mill that injured McGhee. Although they did not state that those records contained the names of Guest, Williams, Coker, and Chavis, they did indicate that, despite having these records since 2000, McGhee's attorney had failed to request via interrogatories the name of the custodian of the records or the name of the head of maintenance. Instead, despite conducting presuit discovery in 2000, McGhee waited to depose the co-employees until June 2002, nearly one year after instituting the suit. When he finally asked for the name of the head of maintenance, in a September 2002 deposition, the suit had been pending for 14 months and discovery had begun 31 months earlier in February 2000.
We cannot say that the length of time that elapsed before McGhee attempted to substitute the parties is any less "unreasonable" than the length of time that elapsed in Ex parte Klemawesch, Bowen, and Kinard. In the three years following his injury , McGhee failed to discover the true identities of his own co-employees. The inescapable conclusion is that McGhee failed to use due diligence to ascertain the true identities of the fictitiously named parties identified in his complaint. Accordingly, the trial court had a valid ground upon which to refuse McGhee's amendment.
III. Conclusion
Because the affidavit in support of McGhee's Rule 56(f) motion failed to specify and explain the necessity of the outstanding discovery, the trial court properly denied the requested continuance of the co-employees' summary-judgment motion. In addition, because McGhee does not, and cannot, challenge the merits of the trial court's summary judgment in favor of the co-employees, the summary judgment is affirmed. Finally, the trial court did not abuse its discretion by refusing to allow McGhee to amend his complaint to substitute Guest, Williams, Coker, and Chavis for fictitiously named party number one as described in his complaint because the co-employees presented a valid ground for that refusal -- namely, that McGhee had not used due diligence in attempting to discover the true identities of fictitiously named party number one. Accordingly, we affirm all aspects of the judgments from which McGhee appeals.
AFFIRMED.
Yates, P.J., and Thompson, Pittman, and Murdock, JJ., concur.
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