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ELECTRONICALLY FILED 10/23/2013 12:52 PM 47-CV-2011-900038.00 CIRCUIT COURT OF MADISON COUNTY, ALABAMA JANE C.

SMITH, CLERK

IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA DAVIS SAMMIE LEE, Plaintiff, V. KARBHARI DR. VISTASP M., BISHOP DR. AMY #0064007, ANDERSON JAMES E., Defendants. ) ) ) ) Case No.: ) ) ) ) )

CV-2011-900037.00

JOHNSON JACQUELINE U.,) Plaintiff, V. KARBHARI DR. VISTASP M., BISHOP DR. AMY #0064007, ANDERSON JAMES E., Defendants.

) ) ) Case No.: ) ) ) ) ) ORDER

CV-2011-900038.00

This matter is before the Court on the Plaintiffs Motion to Name David Williams as a fictitious Defendant. The Court set this matter for hearing along with other pending motions. At that time the parties appeared through counsel. Based upon the pleadings, the Motions and the arguments and contentions of counsel, the Court finds as follows: The Plaintiffs assert that following the Defendants Court ordered disclosure of certain outstanding discovery, the Plaintiffs obtained information sufficient to name David Williams, former President of UA Huntsville as fictitious defendant No.1. Rule 9(h) of the Alabama Rules of Civil Procedure in conjunction with Rule 15 allows a party to amend their pleadings and have it relate back to the filing of the initial Complaint. In order to avoid the bar of a statute of limitations when a plaintiff amends a complaint to identify a fictitiously named defendant on the original complaint, the plaintiff: (1) must have adequately described the fictitiously named defendant in the original

complaint; (2) must have stated a cause of action against the fictitiously named defendant in the body of the original complaint; (3) must have been ignorant of the true identity of the fictitiously named defendant; and, (4) must have used due diligence in attempting to discover the true identity of the fictitiously named defendant. Ex parte Tate & Lyle Sucralose, 81 So.3d at 1220-21 The Alabama case law is clear that the function of Rule 9 and Rule 15 is to allow a Plaintiff to proceed against Defendants whose identity was unknown at the time of the filing of the original Complaint. The Courts have explained this requirement as 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 Engg Intl Ltd. V. Espey, 429 So.2d 955, 958 (Ala. 1983). The Plaintiffs in the matter before the Court seek to use Rule 9 and Rule 15 to Amend their Complaint outside the statute of limitation when the identity of the President of the UAHuntsville was clearly known, but they contend there were insufficient facts known to them to justify stating a cause of action against him. This is not the purpose of Rule 9 and Rule 15 of the Alabama Rules of Civil Procedure. Therefore, it is Ordered, Adjudged and Decreed that the Plaintiffs Motion to Amend the Complaint and name David Williams as a fictitious Defendant is hereby Denied. DONE this 23rd day of October, 2013. /s/ RUTH ANN HALL CIRCUIT JUDGE