Introduction

In Ex parte Grisby Jacob Thompson, the Supreme Court of Alabama issued a writ of mandamus directing the Jefferson Circuit Court to enter summary judgment in favor of defendant Grisby Jacob “Jake” Thompson. The case arises from a 2017 altercation outside the Zydeco nightclub in Birmingham that left plaintiffs Samuel Moore and Victor Sambade injured. The plaintiffs sued the nightclub and a series of fictitiously named defendants, later substituting in named individuals as discovery progressed.

The central legal issue was whether the plaintiffs’ sixth amended complaint—filed in May 2023 to substitute Thompson for a fictitious defendant—related back to the original July 2017 filing under Alabama’s fictitious-party practice (Rule 9(h)) and the relation-back doctrine (Rule 15(c)). The Court held that the plaintiffs failed to exercise due diligence and did not promptly amend after learning Thompson’s identity, rendering their claims time-barred by the two-year statute of limitations in § 6-2-38(l), Ala. Code 1975.

The decision reinforces a critical principle for Alabama litigants: once a plaintiff learns the identity of a person who may fit the description of a fictitiously named tortfeasor, due diligence requires timely, affirmative discovery efforts and prompt substitution; prolonged gaps in post-deposition discovery or amendment will defeat relation back.

Summary of the Opinion

• The Court granted Thompson’s mandamus petition and directed the trial court to vacate its order denying summary judgment and to enter judgment for Thompson.
• The Court accepted that the plaintiffs (1) pleaded a cause of action against the fictitious tortfeasors in the original complaint and (2) were initially ignorant of Thompson’s identity. The case turned on the remaining Patterson factors: (3) due diligence in discovering the true identity and role of the fictitious defendant and (4) prompt amendment once identity was known.
• Because plaintiffs learned Thompson’s identity during a November 22, 2021 deposition but undertook no formal discovery for more than a year afterward—and did not substitute Thompson until May 17, 2023—the Court held that due diligence and prompt amendment were lacking. Therefore, the sixth amended complaint did not relate back, and the claims against Thompson were time-barred.
• Mandamus relief was appropriate because the failure of due diligence was established by undisputed evidence, satisfying the narrow exception permitting mandamus review of summary-judgment denials in fictitious-party relation-back cases.

Analysis

Precedents Cited and Their Influence

The Court’s reasoning is anchored in a long line of Alabama cases delineating the contours of fictitious-party practice and relation back:

• Mandamus in fictitious-party/limitations cases:
  • Ex parte Mobile Infirmary Ass’n; Ex parte Jackson; Ex parte Snow; Ex parte Stover; Ex parte FMC Corp.; Ex parte Klemawesch; Ex parte Nicholson Mfg. Ltd.; Ex parte Cowgill. These decisions recognize a narrow category where mandamus may review denials of summary judgment based on statutes of limitations when relation back and fictitious-party practice are at issue. The writ issues only if undisputed evidence shows a lack of due diligence (Ex parte Stover; Ex parte FMC).
• Rule 9(h) and Rule 15(c) relation-back framework:
  • Columbia Eng’g Int’l, Ltd. v. Espey; Toomey v. Foxboro Co.; Browning v. City of Gadsden. These cases explain the purpose of fictitious-party practice: to toll limitations when a plaintiff knows there is a cause of action but cannot ascertain a defendant’s name despite diligence.
  • Harmon v. Blackwood; Marsh v. Wenzel; Crawford v. Sundback; Crowl v. Kayo Oil Co.; Ex parte Ismail; Ex parte General Motors of Canada Ltd. These cases reaffirm that relation back applies only when the plaintiff was ignorant of the party’s identity and exercised due diligence to discover it.
  • Ex parte Griffin; Davis v. Mims. These decisions articulate the test: whether the plaintiff knew, should have known, or was on notice that the later-named defendant was the party described fictitiously.
  • Patterson v. Consolidated Aluminum Corp. Summarizes the four necessary factors for relation back: (1) a stated claim against the fictitious defendant in the original complaint; (2) ignorance of identity at filing; (3) due diligence in discovering identity; and (4) prompt amendment upon learning identity. Failure on any factor defeats relation back.
  • Ex parte Nail (plurality). Clarifies that due diligence means ordinary diligence, and while formal discovery is not always required, it is often vital objective proof of diligence. Ex parte Hensel Phelps and Ex parte Tate & Lyle Sucralose echo that point.

These authorities collectively framed the Court’s inquiry: plaintiffs must show continuous, ordinary diligence in identifying and substituting the correct party, and they must amend promptly after discovering identity. Protracted inactivity undermines both showings.

Legal Reasoning Applied

The Court accepted that the plaintiffs cleared Patterson factors (1) and (2): the original complaint stated claims against “Fictitious Defendants Nos. 1–10” as “that person or those persons who injured” the plaintiffs, and plaintiffs had no evidence they knew Thompson’s identity at the time of filing.

The case turned on factors (3) and (4):

• Due diligence (Patterson factor 3):
  • By November 22, 2021, plaintiffs had learned from William Hawkins’s deposition that “Jake Thompson” was with Hawkins at Zydeco that night and “probably” with him more than anyone else. In February 2022, plaintiffs questioned Christopher Striplin about Thompson; he denied knowing Thompson. After that, however, the record showed no formal discovery targeted at Thompson or at clarifying the identity of the “guy in the hat” for over a year.
  • The plaintiffs argued they knew only Thompson’s identity and presence, not his role. The Court rejected that posture as insufficient, emphasizing that due diligence required pursuing discovery to clarify involvement once identity was known. Plaintiffs’ own filings showed that “informal” efforts to have Hawkins identify the “person in the hat” did not begin until January–February 2023.
  • Under Ex parte Nail, formal discovery is not strictly necessary but is often crucial to demonstrate diligence. The lack of any post-February 2022 formal discovery, coupled with an 11–14 month period of inactivity on this point, demonstrated a failure of ordinary diligence.
• Prompt amendment (Patterson factor 4):
  • Despite learning Thompson’s identity in November 2021 (and using those very depositions to add Daniel McKenna in March 2022), plaintiffs did not substitute Thompson until May 17, 2023—approximately 18 months after his name was revealed and years after the two-year limitations period expired in May 2019.
  • The Court found this delay not “prompt,” especially where the plaintiffs could have pursued immediate discovery steps and protective amendment practices (e.g., substituting based on information and belief) once a plausible match to the fictitious description was known.

Plaintiffs’ early delays caused by a criminal case against Hawkins, a blanket discovery stay later modified to protect only Hawkins, and COVID-era disruptions were acknowledged in the record. But the Court focused on the post-deposition period. Once the identity was disclosed and the discovery stay lifted, the obligation to act diligently revived. Plaintiffs’ own chronology—showing no formal discovery and an eventual substitution only in May 2023—produced the “undisputed evidence” needed for mandamus relief.

Result: Rule 15(c) relation back is unavailable; the claims against Thompson are time-barred under § 6-2-38(l); summary judgment is mandated.

Impact and Practical Implications

The opinion does not break new doctrinal ground so much as it crystallizes a practical, enforceable standard: when counsel learns a would-be defendant’s identity, especially via deposition, due diligence requires timely, affirmative steps to determine that person’s involvement and prompt substitution if warranted. Key consequences include:

• For plaintiffs’ counsel:
  • Do not wait for a complete evidentiary picture of a nonparty’s “role” before acting. Identity and a connection to the incident trigger the duty to pursue targeted discovery (e.g., supplemental interrogatories, depositions, subpoenas for video, phone/location data, social media, and participant contacts) and to move to substitute promptly.
  • Avoid lengthy gaps in post-deposition case activity. Courts may treat months-long periods with no formal discovery as a per se failure of ordinary diligence.
  • Consider “protective” substitutions based on information and belief once identity is known and the person plausibly fits the fictitious description (e.g., “that person who injured plaintiffs”), rather than waiting to conclusively prove involvement before amendment.
  • Document continuous efforts—especially formal discovery—to create objective evidence of diligence.
• For defense counsel:
  • Ex parte Thompson strengthens the availability of mandamus to challenge denials of summary judgment in fictitious-party relation-back disputes. A timeline showing discovery inactivity post-identity disclosure can carry the day.
  • Track plaintiffs’ discovery steps and identify periods of inactivity; emphasize any contrast between prompt substitution of some defendants (e.g., McKenna) and delayed substitution of others (e.g., Thompson) based on the same depositions.
• For trial courts:
  • The opinion reinforces that Patterson’s factor (3) (due diligence) and factor (4) (prompt amendment) are independent, necessary conditions. Courts should scrutinize post-identity discovery timelines and not excuse extended periods of inactivity on the premise that plaintiffs were “still learning the role.”
• Substantive areas most affected:
  • Premises liability and intentional tort cases involving multiple unknown assailants; dram shop companion claims; cases where identifications unfold via videos, police investigations, and parallel criminal prosecutions. The opinion signals that once identity surfaces, the civil diligence clock runs regardless of the pace of criminal proceedings unless discovery is actually stayed as to that individual.

Complex Concepts Simplified

• Fictitious-party practice (Rule 9(h), Ala. R. Civ. P.): When a plaintiff doesn’t know a defendant’s name, the plaintiff may sue using a placeholder (e.g., “Fictitious Defendant No. 1”). Once the true name is discovered, the plaintiff may amend to substitute the real name.
• Relation back (Rule 15(c)): An amendment substituting a real name for a fictitious one can “relate back” to the original filing date—important when the statute of limitations has expired—if certain conditions are met (see Patterson factors).
• Patterson factors: To relate back, plaintiffs must show: (1) the original complaint stated a claim against the fictitious defendant; (2) plaintiff was ignorant of the true identity at filing; (3) plaintiff exercised due diligence to discover the identity; and (4) plaintiff promptly amended upon learning it. Failure on any factor defeats relation back.
• Due diligence: Ordinary (not extraordinary) efforts to identify and pursue the correct party. While formal discovery is not always required, it is often critical proof of diligence. Extended inactivity undermines this showing.
• Prompt amendment: Once identity is learned, plaintiffs must move to amend without undue delay. Waiting many months (or more) will usually fail this requirement.
• Mandamus in this context: A rare, extraordinary remedy the Alabama Supreme Court may use to correct denials of summary judgment in fictitious-party/limitations disputes when the record indisputably shows a lack of due diligence and thus no relation back.
• Ignorance of identity vs. ignorance of role: Rule 9(h) protects plaintiffs who do not know a defendant’s identity. Once identity is known, plaintiffs cannot justify delay by claiming they have not yet fully established the defendant’s role; diligence requires promptly using discovery to determine involvement and amending in a timely manner.
• Key timeline here (simplified):
  • May 21, 2017: Altercation; two-year limitations runs by May 2019 for negligence/wantonness.
  • July 3, 2017: Original complaint with fictitious defendants filed.
  • Nov. 22, 2021: Hawkins identifies “Jake Thompson” as present and with him.
  • Feb. 21, 2022: Striplin deposed; denies knowing Thompson; no further formal discovery shown toward Thompson for over a year.
  • Jan.–Feb. 2023: Limited informal communications trying to identify the “person in the hat.”
  • May 17, 2023: Sixth Amended Complaint substitutes Thompson—18 months post-identity disclosure; four years after limitations expired.

Conclusion

Ex parte Thompson reinforces and sharpens Alabama’s due-diligence and prompt-amendment requirements in fictitious-party practice. The Court makes clear that once a plaintiff learns a putative defendant’s identity—particularly via deposition—ordinary diligence requires timely, concrete discovery steps to ascertain involvement and a prompt motion to substitute. A long period of post-identity inactivity, even when preceded by legitimate delays (criminal cases, COVID, stays), will defeat relation back, leaving late-added defendants protected by the statute of limitations.

The decision offers a practical roadmap: plaintiffs should proactively build an objective record of diligence through formal discovery and timely amendments; defendants should carefully document gaps in plaintiffs’ efforts. Ultimately, Ex parte Thompson underscores that Rule 9(h) is a tolling tool for those who diligently seek unknown defendants, not a vehicle for extending limitations while discovery idles.

Key Takeaways

• Mere knowledge of a person’s identity and presence at the incident triggers the plaintiff’s duty to diligently investigate and, if warranted, to promptly substitute that person for a fictitious defendant.
• Lengthy gaps with no formal discovery after identity disclosure are powerful evidence of a lack of due diligence.
• Prompt amendment is a standalone requirement; adding one defendant based on a deposition while delaying the addition of another named in the same deposition can be fatal to relation back.
• Mandamus remains available in the “narrow class” of fictitious-party relation-back disputes where the record indisputably negates due diligence.