Rel: April 4, 2025
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA OCTOBER TERM, 2024-2025
_________________________
SC-2024-0756 _________________________
Ex parte Jefferson County Board of Education
PETITION FOR WRIT OF MANDAMUS
(In re: Sharonda Smith, as parent/guardian of K.S., a minor
v.
Jefferson County Board of Education et al.)
(Jefferson Circuit Court: CV-24-901922)
BRYAN, Justice. SC-2024-0756
The Jefferson County Board of Education ("the Board") seeks
mandamus relief from multiple discovery orders of the Jefferson Circuit
Court in Sharonda Smith's action against "Mr. Josh" for leaving her
minor child asleep and unattended on a school bus. Because the name
"Mr. Josh" was not sufficient to identify the bus driver, it was a fictitious
name, and Smith's complaint named no defendants that were not entitled
to State immunity. Accordingly, the circuit court lacked subject-matter
jurisdiction to compel discovery.
I. Facts
The only facts before us are those alleged in Smith's complaint.
During the summer of 2023, Smith's minor child, K.S., participated in a
summer program at a school operated by the Board. On June 5, 2023,
K.S. fell asleep on a bus driven by a "Mr. Josh." K.S. suffered significant
emotional distress, dehydration, and other personal injuries due to the
incident.
On May 10, 2024, Smith, as the parent/guardian of K.S.,
commenced an action against the Board, "Mr. Josh," and 10 fictitiously
named defendants. The Board moved to dismiss Smith's claims against
it on the ground that it was entitled to State immunity.
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On July 10, 2024, the Board sent the Jefferson Circuit Clerk a letter
informing her that "Mr. Josh Dunn, with Jefferson County Board of
Education, is deceased." That letter was filed in the circuit court on July
17, 2024.
On August 1, 2024, the circuit court entered an order dismissing
Smith's claims against the Board. The circuit court's order stated:
"This dismissal does not apply to that Defendant identified in the Complaint as 'Mr. Josh.' Plaintiff's efforts to identify and serve 'Mr. Josh' are ongoing and, the Court finds, diligent. Those efforts are also difficult, because the Minor Plaintiff does not know 'Mr. Josh's' full name. Wherefore, Plaintiff is granted an additional 180 days to serve that Defendant identified in this case as 'Mr. Josh.' "
On August 7, 2024, Smith filed a third-party subpoena requesting
that the Board produce its entire file regarding the incident. Smith filed
an identical subpoena on August 20, 2024. On September 18, 2024, the
Board moved to quash Smith's subpoenas, arguing that the circuit court
lacked subject-matter jurisdiction over the action because, it asserted,
the only parties to the action were fictitiously named parties. The circuit
court denied the Board's motion to quash on September 23, 2024.
On October 3, 2024, Smith moved to compel the Board to respond
to her subpoenas. The same day, the circuit court granted Smith's motion
3 SC-2024-0756
and ordered the Board to respond to Smith's subpoenas by October 18,
2024. On October 11, 2024, the Board filed a motion to reconsider the
order compelling discovery and, in the alternative, for a protective order
and a conditional motion to stay enforcement of the order compelling
discovery. The circuit court set the matter for a hearing to be held on
November 4, 2024.
On October 17, 2024, Smith filed an amended complaint identifying
the bus driver as Joshua Dunn and adding "the Estate of Joshua Dunn"
as a defendant. At the same time, Smith filed a suggestion of death
stating that Dunn was deceased. Smith completed service of process on
Dunn's estate on October 23, 2024.
On November 4, 2024, the circuit court conducted a hearing on the
Board's motion to reconsider the discovery order or for a protective order
and its conditional motion to stay enforcement of the discovery order.
The same day, the circuit court denied the Board's motions and ordered
the Board to respond to Smith's subpoenas by November 19, 2024.
On November 8, 2024, the Board petitioned this Court for a writ of
mandamus (1) ordering the circuit court to grant the Board's motion to
reconsider the discovery order or for a protective order, (2) prohibiting
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the circuit court from entering any orders or taking any action directed
against the Board in furtherance of the litigation, and (3) directing the
circuit court to dismiss the entire action for lack of subject-matter
jurisdiction.
II. Standard of Review
To the extent that the Board seeks relief from the circuit court's
orders compelling discovery, the Board's petition is properly a petition for
a writ of mandamus. Ex parte Sealy, L.L.C., 904 So. 2d 1230, 1232 (Ala.
2004) ("Mandamus will lie to direct a trial court to vacate a void judgment
or order.").
"A writ of mandamus is an extraordinary remedy, and it will be 'issued only when there is: 1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court.' "
Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998)
(quoting Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala.
1993)).
To the extent that the Board requests that we prohibit the circuit
court from entering any orders or taking any action directed against the
Board, the Board's petition is properly one for a writ of prohibition. Ex 5 SC-2024-0756
parte Segrest, 718 So. 2d 1, 4 (Ala. 1998) ("A writ of prohibition is a
preventive measure, rather than a corrective remedy."). Although the
Board does not expressly request a writ of prohibition, we may treat the
Board's petition as one for a writ of prohibition. Ex parte City of Leeds,
849 So. 2d 251, 253 (Ala. Crim. App. 2002) (treating a petition styled as
a petition for a writ of mandamus as a petition for a writ of prohibition).
This is particularly true when the petitioner seeks to prevent a lower
court from acting on the ground that the lower court lacks jurisdiction:
"Like mandamus, prohibition is an extraordinary writ, 'and will not issue unless there is no other adequate remedy.' Ex parte K.S.G., 645 So. 2d 297, 299 (Ala. Civ. App. 1992) (citing Ex parte Strickland, 401 So. 2d 33 (Ala. 1981)). 'Prohibition is proper for the prevention of a usurpation or abuse of power where a court undertakes to act in a manner in which it does not properly have jurisdiction.' Ex parte K.S.G., 645 So. 2d at 299. A writ of prohibition will issue '[o]nly if the pleadings show on their face that the lower court does not have jurisdiction.' Ex parte Perry County Bd. of Educ., 278 Ala. 646, 651, 180 So. 2d 246, 250 (1965). 'In such instances, the act of the usurping court is wholly void, and will not support an appeal.' Id."
Ex parte Sealy, L.L.C., 904 So. 2d at 1232-33.
III. Analysis
In its petition, the Board contends that the circuit court never had
subject-matter jurisdiction over the action because the only defendant it
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says Smith named in her complaint -- the Board -- was entitled to State
immunity and all other defendants were fictitiously named, including
"Mr. Josh." In the alternative, the Board contends that, even if the circuit
court had subject-matter jurisdiction initially, it lost subject-matter
jurisdiction when it entered a final judgment -- i.e., its August 1, 2024,
dismissal order -- in favor of the Board, which at the time was the only
named defendant.
It does not appear that this Court has considered whether a
nonparty subject to a discovery order may challenge the order based on
the trial court's lack of subject-matter jurisdiction. However, the United
States Supreme Court held in United States Catholic Conference v.
Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988), that "a
nonparty witness may attack a civil contempt citation by asserting that
the issuing court lacks jurisdiction over the case." The Court reasoned:
"[T]he subpoena power of a court cannot be more extensive than its jurisdiction. It follows that if a district court does not have subject-matter jurisdiction over the underlying action, and the process was not issued in aid of determining that jurisdiction, then the process is void and an order of civil contempt based on refusal to honor it must be reversed."
Id.
7 SC-2024-0756
Here, the circuit court did not enter its orders requiring the Board
to comply with Smith's subpoenas to aid the circuit court in determining
its own jurisdiction. Rather, the circuit court entered those orders to
assist in adjudicating the action on the merits. Accordingly, the Board's
challenge to the circuit court's orders on the ground that the circuit court
lacked subject-matter jurisdiction is a proper argument for a nonparty to
make. But, before we address the Board's argument, we must first
address whether the Board's petition was timely.
A. Timeliness
In her response to the Board's petition, Smith contends that the
Board did not timely file its mandamus petition because it did so more
than 42 days after the entry of the circuit court's August 1, 2024, order
dismissing Smith's claims against the Board. Smith also contends that
the Board did not file its petition within 42 days after the entry of the
circuit court's September 23, 2024, order denying the Board's motion to
quash Smith's subpoenas. Smith contends that the circuit court's
October 3, 2024, and November 4, 2024, orders, which compelled the
Board to respond to the subpoenas, did not provide the Board any basis
to seek mandamus relief that was not already apparent from the August
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1, 2024, and September 23, 2024, orders. Further, Smith contends that
the Board did not include a statement of circumstances constituting good
cause for this Court to consider its untimely petition, as required by Rule
21(a)(3), Ala. R. App. P. Accordingly, Smith contends that this Court
must dismiss the Board's petition.
Rule 21(a)(3) provides:
"The [mandamus] petition shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court or of a lower appellate court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time."
Generally, the time for taking an appeal is 42 days. Rule 4(a)(1),
Ala. R. App. P. Thus, as Smith contends, the presumptively reasonable
time for filing a mandamus petition is 42 days after the entry of the order
from which relief is sought.
However, because the Board challenges the circuit court's subject-
matter jurisdiction, we may consider its arguments regardless of
timeliness. Ex parte K.R., 210 So. 3d 1106, 1112 (Ala. 2016) (holding that
this Court may consider an argument challenging a trial court's subject-
9 SC-2024-0756
matter jurisdiction regardless of timeliness because this Court notices
jurisdictional issues ex mero motu). Although Smith concedes that
general principle in her answer, she contends that it does not apply here
because "the Board's mandamus petition does not contain any valid
challenge to the [circuit court's] subject-matter jurisdiction over [Smith's]
claims against the [b]us [d]river." Answer, p. 10.
In Ex parte Blackman, 312 So. 3d 1246, 1252 (Ala. 2020), we set
forth the framework that appellate courts follow when determining
whether a petitioner has raised a jurisdictional issue, thereby avoiding
waiver based on timeliness, as follows:
"[I]n accordance with this Court's decision in Ex parte K.R., [210 So. 3d 1106 (Ala. 2016),] a petition for a writ of mandamus filed outside the presumptively reasonable time set forth in Rule 21(a)(3)[, Ala. R. App. P.,] nonetheless may be considered by an appellate court insofar as the petitioner challenges the jurisdiction of the trial court. We must determine whether [the petitioner's] … claim is jurisdictional. If it is jurisdictional, we will consider the merits of his petition pursuant to K.R. If it is not jurisdictional, then his untimely filing of a petition constitutes a waiver of his right to mandamus review."
Under that framework, we first determine whether the issue raised
in a mandamus petition implicates the jurisdiction of the trial court
before we determine whether that issue is meritorious. In making the
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first inquiry, we assume that the petitioner's argument is meritorious;
the sole question is whether the argument would, in fact, implicate the
trial court's subject-matter jurisdiction. If so, the petition cannot be
dismissed as untimely, even if the argument is ultimately determined to
be without merit.
Of course, assuming that a petitioner's argument is meritorious
under Blackman's framework does not relieve the petitioner of its
ultimate burden to demonstrate that its argument is meritorious to
prevail. However, the petitioner bears that burden only after
demonstrating that its argument is jurisdictional.
Applying Blackman's framework here, we must first determine
whether the Board's arguments, assuming they are meritorious, would
establish that the circuit court lacked subject-matter jurisdiction to enter
the orders from which the Board seeks relief. Because we find the Board's
first argument dispositive, we consider only that argument.
In its petition, the Board contends that the circuit court never had
jurisdiction over the action because, it asserts, the only nonimmune
defendants listed in Smith's complaint were fictitiously named
defendants. In Ex parte Board of Trustees of University of Alabama, [Ms.
11 SC-2024-0756
SC-2024-0210, Aug. 30, 2024] ___ So. 3d ___ (Ala. 2024) ("Board of
Trustees"), this Court held that a trial court lacked subject-matter
jurisdiction over an action against a State university and several
fictitiously named defendants because the sole defendant named in the
initial complaint was entitled to State immunity. This was so even
though the plaintiff later purportedly amended the complaint to
substitute identified individual defendants for fictitiously named parties.
This Court reasoned that, because the initial complaint was a nullity, the
purported amended complaint was also a nullity. Thus, if the Board is
correct that "Mr. Josh" was a fictitiously named defendant, Board of
Trustees establishes that the circuit court lacked subject-matter
jurisdiction over the action from its commencement. Accordingly, the
Board asserts a jurisdictional argument that is properly before us
regardless of whether the Board's petition was timely. 1
B. The Merits
Having determined that the Board's argument is jurisdictional, we
proceed to the next step in Blackman's framework and consider whether
1Because we conclude that we may consider the Board's argument
regardless of timeliness, we pretermit discussion of the Board's alternative argument that its petition was timely. 12 SC-2024-0756
the Board's argument is meritorious. As noted above, the Board contends
that the circuit court never had subject-matter jurisdiction over Smith's
action because the only defendant it says Smith named her complaint --
the Board -- was entitled to State immunity. As this Court held in Board
of Trustees, a trial court lacks subject-matter jurisdiction over an action
if the only named defendant is entitled to State immunity. This is so,
even if the plaintiff later purportedly amends the complaint to substitute
other defendants that are not entitled to State immunity. The crucial
point in contention between the parties is whether "Mr. Josh" was a
fictitiously named defendant.
Rule 9(h), Ala. R. Civ. P. governs fictitious-party practice in
Alabama. That rule 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."
Here, Smith did not expressly allege in her complaint that she was
ignorant of the bus driver's name. However, her use of the bus driver's
first name only indicates that Smith was ignorant of his full legal name.
Further, the circuit court's August 1, 2024, order dismissing Smith's
13 SC-2024-0756
claims against the Board states that "the Minor Plaintiff [K.S.] does not
know 'Mr. Josh's' full name." This Court has not addressed whether a
party designated by his or her partial name should be treated as a
fictitiously named party under Rule 9(h).
In its petition, the Board cites several federal cases for the
proposition that a partially named party is regarded as fictitiously
named. In Brooks v. Purcell, 57 F. App'x 47 (3d Cir. 2002) (not selected
for publication in Federal Reporter), the United States Court of Appeals
for the Third Circuit held that defendants identified as "Sue Doe,
Jennifer Doe, Ozzie Doe, and Jane Doe Cook" were fictitiously named
defendants whose citizenship was not to be considered in determining
federal diversity jurisdiction under 28 U.S.C. § 1441(b). Brooks, 57 F.
App'x at 50. The Third Circuit Court of Appeals noted that the plaintiff
"did not supply sufficient information for the district court to know the
specific identity of the four partially named defendants." Id. See also
Swan v. AEW Cap. Mgmt., Civil Action No. 1:13-CV-1509-CC, July 10,
2013 (N.D. Ga. 2013) (not reported in Federal Supplement) (holding that
"John Doe (Gary)" was a fictitious name); Mucci v. Decision One Mortg.,
Civil Action No. 12-1840 (JLL), Aug. 9, 2012, (D.N.J. 2012) (not reported
14 SC-2024-0756
in Federal Supplement) (noting that partially named defendants are
disregarded for purposes of determining diversity jurisdiction); Joshi v.
K-Mart Corp., Civil Action No. 06-5448 (JLL), Sept. 25, 2007 (D.N.J.
2007) (not reported in Federal Supplement) (holding that "Defendant
Frank Last Name Unknown" was a fictitious name).
The Board also cites several federal cases for the proposition that a
defendant identified by his or her job position and his or her first name
is still fictitiously named. See Conerly v. Liberty Mut. Ins. Co., Case No.
2:23-cv-515-GMN-EJY, June 29, 2023 (D. Nev. 2023) (not reported in
Federal Supplement) ("[I]dentifying facts limited to a job position or a
partial name are insufficient to convert a defendant from fictitious to
real."); Green v. Doe, Case No. 1:22-cv-0435 JLT EPG, June 20, 2023
(E.D. Cal. 2023) (not reported in Federal Supplement) ("[A]llegations
identifying only a defendant's first name and job position are insufficient
to establish the individual as a 'real' defendant rather than a 'fictitious'
defendant ...."); Sanders v. Costco Wholesale Corp., Case No. 4:22-cv-
02717-YGR, July 28, 2022 (N.D. Cal. 2022) (not reported in Federal
Supplement) ("[A]nything short of substituting a name defendant, such
as identifying facts or a partial name for a defendant, is insufficient to
15 SC-2024-0756
convert a defendant from fictitious to real."); Johnson v. Walmart, Inc.,
Case No. 2:21-cv-08622-ODW, June 30, 2022 (C.D. Cal. 2022) (not
reported in Federal Supplement) (holding that "David" was a fictitious
name even though the complaint described him as "a supervisor and/or
manager of the store at the time of Plaintiff's slip and fall"); Bee v.
Walmart Inc., Case No. 2:21-cv-08919-RGK-MAR, Mar. 15, 2022 (C.D.
Cal. 2022) (not reported in Federal Supplement) (holding that Walmart
manager identified as "Aaron" was fictitiously named).
Although this Court is not bound to follow decisions of lower federal
courts, those decisions can serve as persuasive authority. Glass v.
Birmingham S. R.R., 905 So. 2d 789, 794 (Ala. 2004). We agree with the
federal decisions cited above that a partial name is insufficient to identify
a named party in a pleading, even if the pleader purports to know that
party's identity or includes other descriptive information.
In her answer, Smith contends that "Mr. Josh" was an assumed
name, not a fictitious identification. Smith relies on Hughes v. Cox, 601
So. 2d 465 (Ala. 1992), in which this Court held that a judgment against
a realtor operating her business as a sole proprietorship was valid even
though the complaint identified the realtor using her assumed business
16 SC-2024-0756
name, not her legal name. Smith also relies on Ex parte CTF Hotel
Management Corp., 719 So. 2d 205, 208 (Ala. 1998), for the proposition
that, "when an individual or entity is sued under an assumed name …[,]
the due process protections afforded that individual or entity require, for
a valid judgment to be entered against that individual or entity, that
there be no question as to the identity of the proper defendant."
Both cases are distinguishable because they involved specific
business names by which the defendants regularly conducted business in
the community, and there was no question regarding the identity of the
defendants at the time the complaints were filed. By contrast, "Mr. Josh"
was a partial name; Smith does not contest the circuit court's statement
in its August 1, 2024, order that Smith was ignorant of the bus driver's
full name, at least at the time she filed her complaint. Thus, unlike in
Hughes and CTF Hotel Management Corp., here there was some
question as to the bus driver's identity, even though Smith knew his first
name and his occupation. 2
2Smith contends that here there was also no question as to "Mr.
Josh's" identity. Smith makes much of the fact that the Board identified "Mr. Josh" as "Mr. Josh Dunn" in its letter to the circuit clerk informing her that Dunn was deceased. Smith did not become aware of that identification until at least a month after she filed her complaint. 17 SC-2024-0756
Smith also relies on several criminal cases in which this Court
recognized that a criminal defendant could be identified by an assumed
name in an indictment. Even assuming, without deciding, that such a
concept is applicable in civil cases, those cases are still inapposite. In
Stallworth v. State, 146 Ala. 8, 13, 41 So. 184, 185 (1906), this Court held
that "a person may acquire by reputation a name which would as
certainly identify him as his true name, and the assumed name or the
one acquired by reputation may be used in the indictment just as
effectively to identify him as his true name." Here, the partial name "Mr.
Josh" does not as certainly identify the bus driver as would the bus
driver's full legal name. Stallworth does not support Smith's contention
that a first name suffices as an assumed name.
In Harris v. State, 48 Ala. App. 723, 725, 267 So. 2d 512, 514-15
(Crim. App. 1972), the Court of Criminal Appeals held that an
indictment's inclusion of the defendant's alias name, "Hitler Harris," was
not unduly prejudicial because it was an assumed name by which he was
Further, even if the Board's subsequent identification of "Mr. Josh" is evidence indicating that the Board knew who "Mr. Josh" was all along, it does not indicate that Smith, Dunn's estate, or the circuit court knew that Dunn was the party identified in Smith's complaint as "Mr. Josh." 18 SC-2024-0756
known to some. But the question in Harris was not whether the
defendant was properly identified; his legal name was included in the
indictment. Harris, 48 Ala. App. at 723, 267 So. 2d at 513. Rather, the
question was whether the trial court erred in allowing the defendant to
be additionally identified by his alias, which he argued was prejudicial.
The Court of Criminal Appeals did not address whether the defendant
could be identified solely by his alias name.
In Tucker v. State, 43 Ala. App. 163, 184 So. 2d 366 (1966), the
Alabama Court of Appeals reversed a forgery conviction because the
defendant had signed a check using an assumed name by which he was
sometimes known. The Court of Appeals noted that the name the
defendant used to sign the check was included as one of several alias
names in the indictment. Although the Court of Appeals acknowledged
the difference between a fictitious name and an assumed name, it did so
for purposes of determining what constitutes forgery. It did not address
whether a partial name is an assumed name that is sufficient to identify
a party to an action.
Finally, Smith contends that Rule 9(h) applies only when the
pleader is ignorant of the identity of an opposing party " ' "in the sense of
19 SC-2024-0756
having no knowledge at the time the complaint was filed that the party
subsequently named was in fact the party intended to be sued." ' " Ex
parte Nail, 111 So. 3d 125, 128 (Ala. 2012) (plurality opinion) (citations
omitted). She relies on Eason v. Middleton, 398 So. 2d 245, 248 (Ala.
1981) (plurality opinion), in which a plurality of this Court held that
"[t]he fictitious party rule is intended to operate in emergency situations
in which neither the name nor the identity of the defendant is known, as
in the situation when the cause of action is known, but not the liable
party."
Based on Ex parte Nail and Eason, Smith contends that Rule 9(h)
does not apply here because she was aware not only of her cause of action,
but also of the bus driver's identity, i.e., that he was "Mr. Josh." However,
as discussed above, a partial name is not sufficient to identify a party.
Accordingly, a pleader who knows only a person's partial name does not
know that person's identity for purposes of Rule 9(h). For instance, in Ex
parte Nail, on which Smith relies, this Court applied Rule 9(h) even
though the plaintiffs knew many of the defendants' partial names.
Although the issue in that case was whether the plaintiffs had exercised
due diligence in discovering the defendants' full legal names, the fact that
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the plaintiffs were permitted to use fictitious names for the defendants
in their complaint indicates that Rule 9(h) applies even when the pleader
knows a defendant's partial name.
For these reasons, Smith's designation of the bus driver as "Mr.
Josh" was insufficient to identify him as a named defendant. Thus, "Mr.
Josh" was a fictitiously named defendant; the only named defendant in
Smith's complaint was the Board, which was entitled to State immunity.
Thus, under Board of Trustees, the circuit court lacked subject-matter
jurisdiction over the action from its commencement. Accordingly, the
circuit court's October 3, 2024, and November 4, 2024, orders requiring
the Board to respond to Smith's subpoenas were void, and the Board has
a clear legal right to relief from those orders and from any future orders
against it.
However, the Board not only challenges the circuit court's subject-
matter jurisdiction for purposes seeking relief from the circuit court's
discovery orders and from taking future action against it; it also asks us
to order the circuit court to dismiss the entire action for lack of subject-
matter jurisdiction. Although we recognize that subject-matter
jurisdiction cannot be waived and that this Court takes notice of
21 SC-2024-0756
jurisdictional issues ex mero motu, the Board cites no precedent directing
dismissal of an action in its entirety within the confines of a mandamus
petition or a petition for a writ of prohibition filed by a nonparty. Without
precedent for such an action, we decline to include such a mandate in our
decision granting the Board's petition.
IV. Conclusion
Based on the foregoing, we grant the Board's petition and direct the
circuit court to vacate its orders requiring the Board to respond to Smith's
subpoenas and to refrain from issuing any future orders against it.
However, because the Board does not demonstrate that it, as a nonparty,
has a clear legal right to dismissal of the action in its entirety, we deny
the Board's petition insofar as the Board seeks a writ of mandamus
requiring the circuit court to dismiss the action in its entirety.
PETITION GRANTED IN PART AND DENIED IN PART; WRIT
ISSUED.
Wise, Mitchell, Cook, and McCool, JJ., concur.
Sellers, J., concurs in the result.
Shaw, J., dissents.
Mendheim, J., dissents, with opinion, which Stewart, C.J., joins.
22 SC-2024-0756
MENDHEIM, Justice (dissenting).
The main opinion relies on Ex parte Board of Trustees of University
of Alabama, [Ms. SC-2024-0210, Aug. 30, 2024] ___ So. 3d ___ (Ala. 2024)
("Board of Trustees"), and agrees with the argument made by the
Jefferson County Board of Education ("the Board") that, because "Mr.
Josh" was a fictitiously named defendant, "Board of Trustees establishes
that the circuit court lacked subject-matter jurisdiction over the action
from its commencement." __ So. 3d at __; see also id. at __ ("[T]he only
named defendant in Smith's complaint was the Board, which was entitled
to State immunity. Thus, under Board of Trustees, the circuit court
lacked subject-matter jurisdiction over the action from its
commencement."). Respectfully, the main opinion has misread Board of
Trustees, which is distinguishable from the present case, as standing for
a broader proposition than it does and has reached a result that is
contrary to long-standing law. Before discussing those matters, however,
some legal context will be helpful.
First, in conjunction with the payment of any pertinent filing fee,
"[t]he filing of a complaint commences an action for purposes of the
Alabama Rules of Civil Procedure." Precise v. Edwards, 60 So. 3d 228,
23 SC-2024-0756
230-31 (Ala. 2010); Rule 3(a), Ala. R. Civ. P. ("A civil action is commenced
by filing a complaint with the court."). To commence an action "[f]or
statute-of-limitations purposes … there must also exist 'a bona fide intent
to have [the complaint] immediately served.' Dunnam[ v. Ovbiagele], 814
So. 2d [232,] 237-38 [(Ala. 2001)]." Precise, 60 So. 3d at 231. The fact
that service has not been completed, which concerns whether the trial
court has acquired personal jurisdiction over a defendant in the action,
does not deprive a trial court of subject-matter jurisdiction over a
properly initiated action or mean that the plaintiff has not "commenced"
the action. Committee Comments on 1973 Adoption of Rule 3 ("[F]iling
of the complaint 'commences' the action for purposes of the statute of
limitations even though actual service may not be made until some time
thereafter, at least where the plaintiff uses due diligence in attempting
to make service.").
Second, regarding fictitious-party practice, Rule 9(h), Ala. R. Civ.
P., states that,
"[w]hen 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."
24 SC-2024-0756
The rule implies that a defendant (a party) who is fictitiously named has
been adequately identified for purposes of commencing the action but
that the plaintiff does not know the full legal name of that defendant.
See Ex parte Russell, 314 So. 3d 192, 203 (Ala. 2020) (describing Rule
9(h) as allowing the plaintiff "to substitute a long-identified party for a
fictitiously named defendant"); see also Enewold v. Olsen, 39 Neb. 59, 57
N.W. 765, 766 (1894) (construing a statutory provision substantially
similar to Rule 9(h) and stating that "true name" means "a person's legal
name … made up of his first or given name and his surname or
patronymic, and for one to be ignorant of either is to be ignorant of such
person's name, within the meaning of said [statutory provision]").
"Rule 9(h) does not … excuse the plaintiff's ignorance of a cause of action against the fictitiously named defendant; it only excuses, under certain circumstances, the ignorance of the name of the party against whom the plaintiff has a cause of action. … 'A contrary rule would emasculate the statute of limitations, which sets the time period a plaintiff has in which to determine who has hurt him and how.' Columbia Engineering International, Ltd. v. Espey, [429 So. 2d 955,] 959 [(Ala. 1983)]."
Harmon v. Blackwood, 623 So. 2d 726, 727 (Ala. 1993).
Rule 9(h) is to be read in conjunction with the precedents decided
under the previous statutory framework for fictitious-party practice. See
25 SC-2024-0756
Committee Comments on 1973 Adoption of Rule 9 (referencing Title 7, §
136, Ala. Code 1940); see also 1 Gregory C. Cook, Alabama Rules of Civil
Procedure Annotated, Rule 15, Author's Comments § 15.9 (5th ed. 2018)
("In the author's opinion, Committee recommendations with respect to
fictitious parties were intended to preserve the present law permitting
such practice and to eliminate any obstacles, patent or latent, in any
other provisions of these rules."). Those precedents acknowledge that
fictitious-party practice may be used in different contexts and that
application of the rules governing fictitious-party practice should take
fact-specific considerations into account. For example, in Roth v.
Scruggs, 214 Ala. 32, 106 So. 182 (1925), the Court discussed § 9515, Ala.
Code 1923, which stated:
" 'Name of defendant. -- When the plaintiff is ignorant of the name of the defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name is discovered, the pleading or proceeding may be amended accordingly, either before or after service of the summons.' "
26 SC-2024-0756
214 Ala. at 33, 106 So. at 184. Section 9515 was substantially the same
as its successor, Title 7, § 136, Ala. Code 1940. 3 The Roth Court
continued:
"This statute is remedial in nature, and should be construed liberally to accomplish the purpose intended. …
"… The chief field of operation is in emergency cases, where it is important to get service upon the party against whom plaintiff has a cause of action, but whose name is at the time unknown. Cases may arise in which a tort is committed by a person unseen and unidentified, but clues are at hand leading to a discovery of name and identity, and it is important to attach property or get service while within the jurisdiction of the court. We see no reason why this statute should not extend to the latter class. There may be others. The full application of a statute can best be determined as cases arise which call for its construction. …
"… It aims at getting into court the original party intended to be sued, using a fictitious name, until the true name is ascertained, and the proceeding amended accordingly."
3Section 136 stated:
"When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly, either before or after service of the summons." 27 SC-2024-0756
214 Ala. at 34, 106 So. at 184 (emphasis added). Likewise, in McKelvey-
Coats Furniture Co. v. Doe, 240 Ala. 135, 136, 198 So. 128, 129 (1940),
this Court stated:
"[W]hile intended primarily for cases in which the name of defendant was unknown, it is an emergency statute, and includes cases in which neither the name nor the identity of defendant is known, as where the cause of action only is known, but the party liable is not, and there is need for immediate seizure of property by attachment or other appropriate writ; or there is urgent need to get service at the same time identity and name are ascertained."
See also id. ("As said in Roth v. Scruggs, supra, it is good practice to aver
any descriptive matter known to plaintiff tending to identify the party
sued as an aid to the officer in the service of the summons. Otherwise,
the plaintiff should aid in perfecting service on the proper party.").
While there may be situations where insufficient information is
known about a fictitiously named defendant for purposes of the plaintiff's
having any present intent to serve that fictitiously named defendant or
attempting to serve that fictitiously named defendant, see Weaver v.
Firestone, 155 So. 3d 952 (Ala. 2013) (discussing problems associated
with a fictitiously named defendant as to whom no present intent to
immediately serve could exist and the import of that issue in relation to
28 SC-2024-0756
equitable tolling, i.e., a statute-of-limitations, relation-back issue), the
above-quoted precedents clearly reflect that that is not always the case.
The present case illustrates the point.
In the present case, Sharonda Smith initiated her action by filing
a complaint, on behalf of her child, against the Board, "Mr. Josh" -- the
name reflected in email correspondence to parents referring to the
children's bus driver -- and other fictitiously named defendants. In her
complaint, Smith alleged that "Mr. Josh" was the bus driver that had left
her child unattended for several hours on a bus on June 5, 2023, following
a summer program at Minor Community School and that the Board, Mr.
Josh, and the other fictitiously named defendants had caused her child
personal injury for which they, respectively, were liable. At the end of
Smith's complaint, she requested service via certified mail on the Board
at its address and service "via process server" on Mr. Josh (but no other
fictitiously named defendant) at the street address for the Jefferson
County Board of Education's Transportation Department. According to
the State Judicial Information System's case-detail sheet, including the
case-action summary, the Jefferson Circuit Court Clerk had "process
serve issued" via "a process server" to "Unknown Mr. Josh" on the day
29 SC-2024-0756
the complaint was filed, May 10, 2024. It is unclear what occurred
thereafter because the circuit court stated in its November 4, 2024, order
denying the Board's motion to reconsider the denial of its motion to quash
that the summons and complaint were "mailed out." The November 2024
order stated:
"The essence of the case is an alleged incident where a school bus driver known to the kids on his bus as 'Mr. Josh,' negligently left the minor plaintiff herein alone and unattended on a parked school bus for a period of several hours. After this case was initiated and the Summons and Complaint were mailed out to that Defendant identified as 'Mr. Josh,' the Jefferson County Schools sent a letter to the Jefferson County Clerk of Court, dated July 10, 2024, stating in pertinent part: 'Mr. Josh Dunn, with Jefferson County Board of Education, is deceased.' … No contact information for 'Mr. Josh Dunn' was provided by the Jefferson County Schools to the Clerk of Court or to the Plaintiff. On August 1, 2024, the Court granted Defendant/Respondent Jefferson County Board of Education's Motion to Dismiss on immunity grounds.
"[quote from August 1, 2024, order omitted, see infra]
"On October 17, 2024, after diligent investigative efforts, Plaintiff amended the Complaint to add 'Joshua L. Dunn' and 'The Estate of Joshua L. Dunn' as Defendants. … Those Defendants were each served on October 23, 2024."
Also, as the circuit court noted, the Board had filed a letter in the
circuit court in July 2024 that clearly indicated that "Mr. Josh" had been
30 SC-2024-0756
sufficiently identified by the complaint such that the Board knew "Mr.
Josh" was a reference to Joshua Dunn, who had died several weeks after
the complaint was filed. And, in the August 1, 2024, order dismissing
Smith's claims against the Board, the circuit court stated:
"This dismissal does not apply to that Defendant identified in the Complaint as 'Mr. Josh.' Plaintiff's efforts to identify and serve 'Mr. Josh' are ongoing and, the Court finds, diligent. Those efforts are also difficult, because the Minor Plaintiff does not know 'Mr. Josh's' full name. Wherefore, Plaintiff is granted an additional 180 days to serve that Defendant identified in this case as 'Mr. Josh.' "
I note that the pertinent fact findings made by the circuit court are
undisputed.
In light of the foregoing, it might be helpful to consider the matter
before us this way: If Smith had filed her complaint against only "Mr.
Josh"; had described him and his actions as she did in the complaint; had
directed that personal service be made on him "via process server" at his
place of employment as she did in the complaint; and the clerk had
"process serve issued" to him as reflected on the case-detail sheet, clearly
we would conclude under the above-referenced authority that Smith had
commenced a valid action against the fictitiously named defendant "Mr.
Josh" upon the filing of the complaint. See Precise, supra, Roth, supra.
31 SC-2024-0756
So, why would the law be that no valid action was commenced against
"Mr. Josh" under the foregoing conditions simply because the claims
against a named defendant were dismissed based on a jurisdictional
defense (sovereign immunity) that was applicable only to that dismissed
defendant, particularly when the circuit court indicated in the dismissal
order that "Mr. Josh" had been sufficiently identified for purposes of
continuing attempts at service of process and continuing the action as to
him? According to the main opinion, Board of Trustees so holds. But
Board of Trustees made no mention of circumstances like those described
above and did not discuss or account for the fact that not all fictitious-
party-pleading cases involve the same posture. Specifically, Board of
Trustees did not mention that any attempt at service could have been
made or was made as to the fictitiously named defendants when the
complaint was filed in that case. Instead, in concluding that no valid
action had been commenced and rejecting the purported amendment of
the complaint to replace the names of the fictitiously named defendants
with the true names of those described defendants, this Court stated: "In
fact, authority suggests that 'filing an unservable complaint with only
fictitiously named defendants does not, under our precedents, commence
32 SC-2024-0756
an action.' Weaver v. Firestone, 155 So. 3d 952, 963 (Ala. 2013)." __ So.
3d at __ (some emphasis added).
The present case did not involve the filing of an unservable
complaint. It involved the filing of a servable complaint as to "Mr. Josh,"
who had been sufficiently identified such that service could be and was
attempted from the initiation of the action. And dismissal of the Board
aside, this Court did not hold in Board of Trustees or Weaver that,
regardless of whether service could be effectively attempted as to a
fictitiously named defendant, filing a complaint against such a defendant
could not commence an action. Weaver was addressing an unservable
complaint, as repeatedly referenced in that case, 155 So. 3d at 963-67,
and Board of Trustees relied on Weaver as to that circumstance only. To
read Board of Trustees as the main opinion does is to read that case as
being in conflict with the law that has long governed fictitious-party
practice, as discussed above, and without any support from the language
in Rule 9(h).
Further, to the extent that certain statements in Weaver might be
interpreted as implying that no valid action can be commenced against
only a fictitiously named defendant, see 155 So. 3d at 966 n.4 and
33 SC-2024-0756
accompanying text, such statements were made in the context of
discussing the doctrine of equitable tolling in regard to an unservable
complaint when no amount of diligence by the plaintiff would lead to
discovery of the defendant's true name; the Weaver Court was
responding to an argument that equitable tolling should not apply
because the plaintiff could have simply filed an unservable complaint in
order to toll the statute of limitations. Id. at 958. In other words, Weaver
did not involve the issue whether a plaintiff might commence an action
when he or she had filed a servable complaint against a fictitiously
named defendant and any statements that might be read as addressing
such an issue would be dicta. 4
4A plurality of this Court relied on Weaver in Johnson v. Reddoch,
198 So. 3d 497 (Ala. 2015). The Johnson plurality stated that in Weaver "this Court expressly rejected the arguments that Rule 9, Ala. R. Civ. P., permits a plaintiff to 'file[] a complaint naming as defendants only fictitious parties' and that a complaint naming only fictitious parties 'would have served to commence an action against the alleged tortfeasors.' " 198 So. 3d at 505 (quoting Weaver, 155 So. 3d at 963). While it is true that this Court rejected those arguments in Weaver, which were made by the defendants, we made those statements in the context of the equitable-tolling discussion regarding an unservable complaint and responded with the statement that "filing an unservable complaint with only fictitiously named defendants does not, under our precedents, commence an action and stop the running of the statute of limitations." 155 So. 3d at 963 (emphasis omitted). Also, the issue to be decided in Johnson was not whether an action against fictitiously named 34 SC-2024-0756
Based on the foregoing, I cannot agree that Smith had not
commenced a valid action against Mr. Josh simply because he had been
named as a fictitious party. Instead, Smith commenced a valid action
against "Mr. Josh," and the subsequent dismissal of the Board did not
invalidate the commencement of that valid action as to him.
The Board makes an alternative argument, which the main opinion
does not address, specifically that the circuit court lost jurisdiction in
defendants had been commenced, but whether the claims against them had remained pending after the entry of a dismissal order. The Johnson plurality concluded that those claims had been dismissed, 198 So. 3d at 504, and the discussion about the commencement of an action against fictitiously named defendants was dicta. And to the extent that the Johnson plurality's dicta might be read as indicating that no action can be commenced against only fictitiously named defendants, regardless of circumstances, that would come as a surprise to the judicial forbearers who decided Roth and McKelvey, or the legislature that enacted § 9515, Ala. Code 1923, particularly because it had long been the case that obtaining personal jurisdiction over a defendant required his or her being present within the territorial jurisdiction of the court purporting to exercise authority over that defendant. See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) ("Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of court was prerequisite to its rendition of a judgment personally binding him." (citing Pennoyer v. Neff, 95 U.S. 714, 733 (1877))); see also Long v. Clark, 201 Ala. 454, 454, 78 So. 832, 832 (1918) ("[I]t was beyond the power of the Legislature to provide for the recovery of a personal judgment on a moneyed demand against a nonresident upon whom no personal service was had in this state." (citing Pennoyer)). 35 SC-2024-0756
Smith's action before it directed the Board to comply with Smith's
discovery request. According to the Board, the August 2024 order,
contrary to its express terms, was a final judgment. In support of that
argument, the Board relies on Ex parte Hare, Wynn, Newell & Newton,
LLP, [Ms. SC-2023-0908, May 24, 2024] __ So. 3d __ (Ala. 2024), and
numerous progeny of Owens v. National Security of Alabama, Inc., 454
So. 2d 1387, 1388 n.2 (Ala. 1984), which have extended Rule 4(f), Ala. R.
Civ. P., to situations in which the claims against a named defendant were
fully adjudicated against the plaintiff at a pretrial stage. In general, the
cases reflect the principle that a generally worded order adjudicating a
plaintiff's claims against him or her and in favor of a served defendant
will be final for purposes of appeal, the claims against fictitiously named
defendants being deemed dismissed.
None of the cases cited by the Board address an order like the
August 2024 order, which states that the Board's motion to dismiss was
"GRANTED and this Defendant only is DISMISSED from this case … on immunity grounds. This dismissal does not apply to that Defendant identified in the Complaint as 'Mr. Josh.' Plaintiff's efforts to identify and serve 'Mr. Josh' are ongoing and, the Court finds, diligent. Those efforts are also difficult, because the Minor Plaintiff does not know 'Mr. Josh's' full
36 SC-2024-0756
name. Wherefore, Plaintiff is granted an additional 180 days to serve that Defendant identified in this case as 'Mr. Josh.' "
(The 180-day period to perfect service is consistent with the 6-month
period for filing a motion for substitution when there has been a
suggestion of death filed under Rule 25(a)(1), Ala. R. Civ. P.) In other
words, the cases cited by the Board do not address an order that expressly
purports both to adjudicate the claims against the served defendant and
to preserve the action against fictitiously named defendants, particularly
an order allowing a limited time to complete service of process, which
would appear to be within the discretion of the trial court under Rule 1(c),
Ala. R. Civ. P. ("These rules shall be construed and administered to
secure the just, speedy and inexpensive determination of every action.").
See also Rule 21(a)(1)(E), Ala. R. App. P.; Ex parte Young, 352 So. 3d
1160, 1165 (Ala. 2021) (quoting Ex parte Showers, 812 So. 2d 277, 281
(Ala. 2001), for the proposition that, " '[i]f anything, the extraordinary
nature of a writ of mandamus makes the Rule 21[, Ala. R. App. P.,]
requirement of citation to authority even more compelling than the Rule
28[, Ala. R. App. P.,] requirement of citation to authority in a brief on
appeal' "). Further, the Board's argument assumes that the circuit court's
express intention to dismiss the claims against the Board must take 37 SC-2024-0756
priority over or be deemed to displace its express intention to allow the
continuance of the claims against "Mr. Josh" during a stated window for
Smith to achieve service of process. But the August 2024 order is
ambiguous in that regard, reflecting, on its face, conflicting intentions,
and the Board has made no argument and cited no legal authority
regarding how such an ambiguity should be resolved. See Rule
21(a)(1)(E). Thus, while this argument presents an interesting question,
the Board has not established a clear legal right to the relief it requests.
Based on the foregoing, the Board's petition should be denied in its
entirety.
Stewart, C.J., concurs.