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Ex parte Chemical Lime of Alabama4/29/2005
Woodward, 824 So. 2d 693 (Ala. 2001)(detailing the diligence the plaintiff took to identify the appropriate fictitiously named defendants). Therefore, the plaintiffs do not present evidence to refute the evidence that, within the limitations period, they had knowledge of the UMWA report and that the report unequivocally identified a problem with the bulk rock dust and identified Chemical Lime as a supplier of the rock dust. Therefore, the plaintiffs do not establish that they exercised due diligence (i.e., that they should not have known or were not on notice) in identifying Chemical Lime as a supplier of bulk rock dust to mine #5 and in substituting Chemical Lime for a fictitiously named defendant. As we reminded in Ex parte Snow:
"'We are not oblivious to the reality of these hard facts. But we are constrained by the time limits imposed by the legislature on the commencement of actions. Counsel's obligation to act in good faith and to act consistently with high ethical standards requires that counsel strike a balance between, on the one hand, the obligation to present, within the period of limitations, the full range of claims essential to protect the interests of a plaintiff, and, on the other hand, the competing obligation to refrain from bringing groundless or frivolous claims. Whether it would be wise to create an exception to the statute of limitations when a defendant has not been joined on account of counsel's good faith efforts to satisfy these competing obligations is not properly a question for this Court. We recognize that because we are declining to engage in a legislative function, a potentially liable defendant might have a valid statute-of-limitations defense under such circumstances. But this dilemma is as old as statutes of limitations. However, second-guessing the wisdom of any choice between these competing obligations should be undertaken only with a high degree of deference and great caution, lest we promote an unhealthy public policy of pressuring a plaintiff to assert claims that ought not be pursued.'"
764 So. 2d at 537-38 (quoting Marsh v. Wenzel, 732 So. 2d 985, 990 (Ala. 1998)).
Chemical Lime has clearly demonstrated that the plaintiffs did not exercise due diligence in naming it in place of a fictitious defendant; therefore, the relation-back doctrine does not apply. Thus, Chemical Lime has shown a clear legal right to mandamus relief and is entitled to dismissal on those claims asserted against it that were not asserted within the two-year limitations period. "A writ of mandamus is proper in a case such as this if 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. See Ex parte Stover, 663 So. 2d 948, 952 (Ala. 1995); Ex parte FMC Corp., 599 So. 2d 592, 595 (Ala. 1992)." Ex parte Snow, 764 So. 2d at 537.
Conclusion
The petition for the writ of mandamus is granted. The trial judge is directed to vacate his order denying Chemical Lime's motion and to enter a summary judgment for Chemical Lime on those claims against it not asserted within the two-year limitations period.
PETITION GRANTED; WRIT ISSUED.
Nabers, C.J., and See, Lyons, Harwood, Woodall, Smith, and Parker, JJ., concur.
Bolin, J., concurs in the result.
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