BRIEF FOR APPELLEE VELCOM FILTERS, LLC

Transcription

1 E-Filed Document Mar :23: CA Pages: 25 CASE NO CA IN THE SUPREME COURT OF MISSISSIPPI ROBERT HAMMONS, JR. APPELLANT VS. C. WADE NAVARRE, II, individually and d/b/a NAVARRE FABRICATION INC.; VELCON FILTERS, LLC; KNAPPCO CORPORATION; and WILDEN PUMP AND ENGINEERING, LLC APPELLEES BRIEF FOR APPELLEE VELCOM FILTERS, LLC MARC A. BIGGERS Mississippi Bar No RICHARD L. KIMMEL Mississippi Bar No Upshaw, Williams, Biggers & Beckham, LLP P.O. Drawer 8230 Greenwood, MS (662) Attorneys for Velcon Filters, LLC

2 CERTIFICATE OF INTERESTED PERSONS CASE NO CA The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Robert Hammons, Jr., Appellant; 2. C. Wade Navarre, II, Individually and d/b/a Navarre Fabrication, Inc., Appellee; 3. Navarre Filters, LLC, Appellee; 4. Velcon Filters, LLC, Appellee; 5. Knappco Corporation, Appellee; 6. Wilden Pump and Engineering, LLC, Appellee; 7. Scott Petroleum Corporation, Defendant; 8. Metal Craft, Inc.; Defendant; 9. Joe S. Deaton, III, Deaton & Berry, P.A., attorney for Scott Petroleum Corporation; 10. R. Jason Canterbury, Deaton & Berry, P.A., attorney for Scott Petroleum Corporation; 11. Charles G. Copeland, Copeland Cook Taylor & Bush, P.A., attorney for C. Wade Navarre, II, Individually and d/b/a Navarre Fabrication, Inc., and Navarre Fabrication, Inc.; 12. James R. Moore, Jr., Copeland Cook Taylor & Bush, P.A., attorney for C. Wade Navarre, II, Individually and d/b/a Navarre Fabrication Inc., and Navarre Fabrication, Inc.; 13. Michael C. Gatling, Copeland Cook Taylor & Bush, P.A., attorney for C. Wade Navarre, II, Individually and d/b/a Navarre Fabrication Inc., and Navarre Fabrication, Inc.; ii

3 14. Richard L. Kimmel, Upshaw, Williams, Biggers & Beckham, LLP, attorney for Velcon Filters, LLC; 15. Marc A. Biggers, Upshaw, Williams, Biggers & Beckham, LLP, attorney for Velcon Filters, LLC; 16. W. Scott Welch, III, Baker, Conelson, Bearman, Caldwell & Berkowitz, PC, attorney for Knappco Corporation and Wilden Pump and Engineering, LLC; and 17. Honorable Margaret Carey-McCray, Circuit Court Judge. /s/ Marc A. Biggers MARC A. BIGGERS iii

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES...ii TABLE OF CONTENTS...iv TABLE OF AUTHORITIES...v REQUEST FOR ORAL ARGUMENT...vii INTRODUCTION...viii STATEMENT OF THE ISSUES...ix STATEMENT OF THE CASE...x SUMMARY OF THE ARGUMENT...xi ARGUMENT...1 Plaintiff s claim is governed by , Miss. Code Ann...1 The original Complaint presented factual allegations and stated claims against only Scott Petroleum...3 Rule 15(c) and 9(h) Miss. Code Ann. of CONCLUSION...11 CERTIFICATE OF SERVICE...12 iv

5 TABLE OF AUTHORITIES Cases Womble v. Singing River Hosp., 618 So.2d 1252 (Miss. 1993)...viii, xi Veal v. J. P. Morgan Trust Co., 955 So.2d 843 (Miss. 2007)...viii, 6, 8, 9, 10 Angle v. Koppers, Inc., 42 So.3d 1 (Miss. 2010)...1,2 Caves v. Yarbrough, 991 So.2d 142, (Miss. 2008)...2 McGinnis v. Stryker Sales Corporation, 2013 W.L (N.D. Miss. 2013)...2 Welch v. Pfizer, 2012 W.L (S.D. Miss. 2012)...2 Massey v. Wyeth, Inc., 2013 W.L (S.D. Miss. 2013)...2 Wilner v. White, 929 So.3d 315, (Miss. 2006)...5,11 Scaggs v. GPCH-GP, Inc., 23 So.3d 1080 (Miss. 2010)...5,11 Miller v. Englehard Corp., 95 So.3d 740, 744 (Miss. Ct. App. 2012)...5 Anderson v. Alps Automotive, Inc., 51 So.3d 929, (Miss. 2011)...6, 10 Doe v. Miss. Blood Svcs., Inc., 704 So.2d 1016 (Miss. 1997)...6, 7, 8 Ralph Walker, Inc. V. Gallagher, 926 So.2d 890, (Miss. 2006)...8, 9 Nguyen v. Miss. Valley Gas Co., 859 So.2d 971, 979 (Miss. 2002)...8 Rainey v. Grand Casinos, Inc., 47 So.3d 1199, (Miss. Ct. App. 2010)...10 D.P. Homes Trucking, LLC v. Butler, 94 So.3d 248, 254 (Miss. 2012)...10 Sullivan v. Trustmark National Bank, 653 So.2d 930 (Miss. 1995)...11 Vice v. David Window Co., 2007 W.L (S.D. Miss. Jan. 06, 2007)...11 Statutes , Miss. Code Ann (as amended)...ix, xi, 1, 3, 5, 7, 11 v

6 , Miss. Code Ann (as amended)...viii, xi, , Miss. Code Ann (as amended) , Miss. Code Ann (as amended)...11 Other - Rules Rule 9, M.R.C.P....ix, xi, 5, 6, 7, 8, 9, 10, 12 Rule 15, M.R.C.P....ix, x, xi, xii, 5, 6, 7, 10, 11, 12 Rule 11, M.R.C.P....2 Rule 4, M.R.C.P....5 Rule 21, M.R.C.P....8 vi

7 REQUEST FOR ORAL ARGUMENT Velcon does not believe that oral argument is needed, given the clear precedent that exists as well as the trial court s clear and correct opinion applying applicable law. vii

8 INTRODUCTION Appellant s Statement of the Issues reflects a basic misunderstanding of the relevant Rules of Procedure and statute of limitations which apply to this case. This in turn has resulted in a misperception or misunderstanding of the ruling handed down by the trial court, its rationale and its absolute correctness. Hammons perception that there is some apparent conflict between the Supreme Court decisions in Womble v. Singing River Hosp., 618 So.2d 1252 (Miss 1993) and Veal v. J.P. Morgan Trust Co., 955 So.2d 843 (Miss. 2007), ignores the simple fact that different statutes of limitations applied in the two cases. This reality in turn dispels the suggestion that this case involves any unique or unusual issue. Likewise, there is no conflict between clearly establishes precedents presented. viii

9 STATEMENT OF THE ISSUES 1. Did the trial court err in concluding that Plaintiff s claim against Appellee Velcon and the other Appellees was time barred by ? 2. Did the trial court properly apply Rule 9, M.R.C.P. and Rule 15 M.R.C.P. in this action? 3. Does in any way toll the running of the statute? ix

10 STATEMENT OF THE CASE On October 25, 2009, Plaintiff was seriously injured when the helicopter he was piloting crashed while applying herbicide. Plaintiff was employed by Provine Helicopter Service, Inc. (R.P-5). Suit was filed on December 27, 2011 naming Scott Petroleum Corporation as a defendant. In addition, the Complaint charged: 3. Defendants, A-P, are corporations or persons whose true identities and addresses are unknown at this time and whose liability to the Plaintiff is unknown at this time. (R.P-3). On April 30, 2013, Plaintiff filed an Amended Complaint listing a number of separate entities, including Appellee, Velcon Filters. Thereafter, Defendant Velcon filed its motion to dismiss pointing out that the Amended Complaint shows on its face that the action was time-barred and the failure of the Plaintiff to comply with Rule 9, M.R.C.P. and the lack of application of Rule 15, M.R.C.P. After a hearing was conducted by the Court and briefs were submitted, the Court entered its Order and Opinion sustaining the pending motions of all Appellees and thereafter a Final Judgment was entered dismissing Plaintiff s Complaint against all Appellees. (R,P and R.P-1631). x

11 SUMMARY OF THE ARGUMENT Plaintiff s original Complaint and Amended Complaint seek to set forth products liability claims. The applicable statute of limitations is Miss. Code Ann. Plaintiff s cause of action accrues at the time of injury. It is undisputed that Plaintiff s injury date is October 25, It is likewise undisputed that Plaintiff s Amended Complaint was filed on April 30, 2013 about six months after the statute of limitations had expired. The original listing in Plaintiff s Complaint of Defendants A-P and statements that their wrongdoing was unknown removes any doubt that compliance with the purpose and intent of Rule 9(h) M.R.C.P. is missing. Paragraph 3 of the original Complaint is, in fact, basically a nullity. Plaintiff, stated I don t know who they are or what they did, but I wish to reserve my right to sue them. Contrary to Hammons arguments, the Supreme Court s decision in Veal no way conflicts with the Court s ruling in Womble. In medical malpractice cases, accrual of a cause of action requires both discovery of the injury and its cause. This is a products liability claim where discovery of injury alone determines accrual. There is no latent injury. Finally, Velcon wishes to point out that the record as well as common sense simply does not support Plaintiff s arguments that this case serve as a basis for the Court to adopt a new discovery rule in this case based on its assertions that he was prohibited by others from investigating the case. Likewise, this same fact shows a lack of diligence required by Rule 9(h). Velcon would simply point out that the record reflects that Hammons employer, Provine Helicopters, Inc., and its insurer, Liberty Mutual, have appeared in this case via intervention asserting a lien. (See Docket entries dated 3/05/2014 R.- Page 6 of 9) In xi

12 Hammons Statement of the Case at page XI, it is asserted that Plaintiff suspected a defective fuel tank, fueling equipment and fueling components but was unable to ascertain information Mr. Ferrell and his expert inspected the fuel truck and component parts. It was hardly impossible for counsel and his expert to ask the owner of the truck, Provine Helicopter, for permission to inspect the truck. Obviously, the workers compensation carrier, Liberty Mutual, would have an incentive to cooperate. Finally, Plaintiff s arguments relative to which pertain to an absent and absconding debtor simply have no application. All the products liability Appellees were amenable to service of process via the Mississippi long-arm statute. Their identities could have been ascertained by simply asking Plaintiff s employer to provide that information or by examination of the fuel truck in question. xii

13 ARGUMENT PLAINTIFF S CLAIM IS CONTROLLED BY MISS. CODE ANN. Plaintiff claims that his cause of action against Velcon did not accrue until presumably February 1, 2013 when counsel for Plaintiff supposedly learned of some new information. Stated simply, Plaintiff argues that notice of injury is not the applicable accrual date, but rather he must have both notice of injury as well as notice of the cause. Plaintiff s position is simply incorrect Miss. Code Ann., undisputably applies to this products liability action. This case involves the crash of a helicopter and injuries sustained from such crash. This happened on October 26, Suit could have been filed on October 27, 2009 because the claim accrued the day before, when Plaintiff s claim accrued. The statute expressly provides that in cases involving latent injury, the cause of action accrues when the date of injury is known. Plaintiff s reliance upon the provisions of Miss. Code Ann. applicable to medical malpractice actions is simply irrelevant to this case. Such arguments should be addressed to the legislature, not this court. In Angle v. Koppers, Inc., 42 So.3d 1, (Miss. 2010), our Supreme Court considered the position urged by Plaintiff in this case and rejected same. In that case, Angle argued that her claim did not accrue until she was on notice of both her injury as well as its cause. The Supreme Court squarely addressed this position and held that the date of injury alone was the applicable date. The court noted: In analyzing what the plaintiff must discover in order to trigger the running of the statute of limitations, we ordinarily are guided by the wording of a statute s discovery provision. 1

14 Caves v. Yarbrough, 991 So.2d 142, (Miss. 2008) (in comparing the discovery rules in the medical-malpractice statute and the catch-all statute, we have one which focuses on discovery of the date of the wrongful conduct, and another which focuses on the date of discovery of the injury or disease ) (emphasis added). We find that the plain language of the statute supports Defendants argument that the cause of action accrued upon discovery of the injury, not discovery of the injury and its cause. While not always a model of consistency, our caselaw supports this plain reading of the statute. (Emphasis by Court). Angle at p. 5. In McGinnis v. Stryker Sales Corporation, 2013 W.L (N.D. Miss. 2013), the Court applied Angle, to a products liability action. There, the case involved a defective hip implant which was implanted in September, Due to constant pain, the plaintiff had a second surgery in 2009, which the proof showed indicated a gross premature failure. Recall letters had been sent out as late as November 2007, but plaintiff did not receive notice and learned of the recall via a television commercial in The court held his cause of action accrued in 2009 when he had his second surgery. See also Welch v. Pfizer, 2012 W.L (S.D. Miss. 2012); Massey v. Wyeth, Inc., 2013 W.L (S.D. Miss. 2013). Plaintiff s arguments regarding Rule 11 are totally without merit. The alleged cause of the helicopter crash was bad fuel. Scott sold the fuel to Provine Helicopters. It is just as logical to conclude that the fuel was bad when Scott acquired the fuel as to conclude that the fuel was contaminated after Provine became the owner of the fuel. Hammons himself had knowledge of how the fuel was handled by Provine, including the fuel truck actually used and the procedures followed by the operation of the truck. Hammons had no need to await publication by National Transportation and Safety Board of its investigation when he had actual knowledge and direct access through his employer of all details. This is the plain, 2

15 simple and unavoidable truth. The original Complaint presented factual allegations and stated claims against only Scott Petroleum Corp. Hammons, according to the allegations contained in paragraph 6 of his original Complaint, was injured on October 25, 2009 when the helicopter he was flying crashed after an engine failure. The engine failure, according to Hammons, occurred because the fuel supplied by Scott Petroleum Corporation ( Scott was unreasonably dangerous and defective. In Count I of his original Complaint, he alleged that Scott negligently failed to keep and maintain the aircraft fuel in a reasonably safe condition. In Count II, Plaintiff made allegations against Scott sounding in strict products liability, misrepresentation, failure to warn, breach of express warranty and gross and willful negligence. In Count III of the original Complaint, Plaintiff alleged that Scott breached implied warranties. Count IV of the original Complaint contained an allegation that the defective fuel rendered Scott strictly liable in tort. The original Complaint included only one mention of Defendants A-P: Defendants, A-P, are corporations or persons whose true identities and addresses are unknown at this time and whose liability to the Plaintiff is unknown at this time. Plaintiff will amend his Complaint and include the true names and addresses of the Defendants A-P once their identities are learned and once their liabilities are ascertained. (R.-P.3) There are simply claims asserted as to what Defendants A-P did by way of any actionable wrongdoing. There is no allegation in the original Complaint that Provine Helicopter s fuel truck or its components caused or contributed to the fuel contamination. The statute of limitations contained in Miss. Code Ann (1) expired on 3

16 October 26, 2012, three years after the helicopter crash. On April 8, 2013, Plaintiff moved for leave to file an amended complaint. He cited Rules 15 and 18 and announced that he wished to add Metal Craft, Inc., C. Wade Navarre, II, Individually, and d/b/a Navarre Fabrication, Inc., Navarre Fabrication, Inc., Velcon Filters, LLC, Knappco Corporation and Wilden in place of Defendants A-F and as named Defendants in the above styled numbered cause. (R.-P.293). He did not allege that he was substituting the true names of these new Defendants for fictitious parties named under Miss.R.Civ.P. 9(h). Instead, he reminded the Court that Rule 15 requires that leave to amend be freely given when justice so requires and asked, in the interest of justice, for leave to file the Amended Complaint he attached as an exhibit to his Motion. In the Amended Complaint, Plaintiff introduced a complete new claim and cause of action; that the fuel trucks, fuel compartments, fuel filter, fuel tank lid and fuel pump used by Proving Helicopter to transfer fuel supplied by Scott Petroleum to the helicopter were defective and unreasonably dangerous and were contributing proximate causes of the helicopter being fueled with contaminated fuel, which caused the October 25, 2009 accident. Plaintiff did not allege in the original Complaint that the fuel trucks, fuel compartments, fuel filter, fuel tank lid or fuel pump were defective or the cause of the fuel contamination. Plaintiff even affirmatively alleged in his Amended Complaint that he did not know of the involvement of the allegedly defective fuel trucks, fuel compartments and other components in the accident and his injuries until February 1, These admissions in the Amended Complaint are fatal to Plaintiff s claims against the new Defendants because Plaintiff failed to file suit against them within the three-year 4

17 statute of limitations, Miss. Code Ann (1), and the Amended Complaint does not relate back to the date the original Complaint was filed. Rule 15(c) and Rule 9(h) Rule 15(c) governs the relation back of amendments. It applies to claim or defense in an amended pleadings which arose out of conduct, tranaction or occurrence set forth or attempted to be set forth in the original pleading. An amendment changing the party against whom a claim asserted relates back if the foregoing provision is satisfied and within the time for Rule 4(h) service of the complaint the party to be brought in by amendment: 1. has received such notice of the institution of the action that the party will not be prejudiced in maintaining the party s defense on the merits, and 2. knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.... See Rule 15(c), M.R.C.P. Plaintiff s amendment changing the parties against whom the claim is asserted does not relate back because Plaintiff has not and does not claim to have made a mistake concerning the identity of the property party. Wilner v. White, 929 So.3d 315, (Miss. 2006). (If Rule 9(h) is not applicable, an amendment changing a party against whom a claim is made relates back only if, among other requirements, the amendment is made to correct a mistake concerning the identity of a party); Scaggs v. GPCH-GP, Inc., 23 So.3d 1080, 1083 (Miss. 2010) (amendments to correct the name of a party relate back under Rule 15(c)); Miller v. Engelhard Corp., 95 So.3d 740, 744 (Miss.Ct.App. 2012). 5

18 Rule 15(c)(2) also provides that: [a]n amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading. Accordingly, under Rule 9(h): When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered the process in all pleadings and proceedings in the action may be amended by substituting the true name and giving proper notice to the opposing party. When Rule 9(h) is complied with, and the true name of the fictitious party is discovered and substituted with reasonable diligence, the amendment relates back to the original filing and statute of limitations issues do not arise. Anderson v. Alps Automotive, Inc., 51 So.3d 929, (Miss. 2011). Compliance with Rule 9, however, requires more than alleging that the fictitious Defendants, are corporations or persons whose true identities and addresses are unknown at this time and whose liability to the Plaintiff is unknown at this time. (emphasis added). (R.-P.3). To secure the right to have an amendment identifying the true name of a fictitious party relates back to the date of filing of the original Complaint, the Plaintiff must describe the wrongful conduct of the fictitious Defendant and the claims against it in the original Complaint. Doe v. Miss. Blood Svcs., Inc., 704 So.2d 1016 (Miss. 1997); Veal v. J.P. Morgan Trust Co., N.A., 955 So.2d 843, 846 (Miss. 2007). Plaintiff failed to do that in this case and, in fact, confessed in both his original Complaint and in the Amended Complaint that he was ignorant not only of the true names and addresses of the fictitious Defendants but of the nature of their wrongful conduct and the claims against them. In light of this 6

19 admission, how can Plaintiff claim that the original complaint set forth or attempted to set forth a claim? The case law unambiguously establishes that Plaintiff has not complied with Rules 9(h) and 15(c)(2) so as to have his Amended Complaint relate back to the date of filing of the original Complaint. Since his Amended Complaint does not relate back, the claims against the newly-added Defendants are barred by the statute of limitations, Miss. Coe Ann (1), because he did not file suit against Appellees within three years of the accrual of his cause of action. In Doe v. Mississippi Blood Services, Inc., 704 S0.2d 1016, 1019, the Mississippi Supreme Court held that: The purpose of Rule 9(h) is to provide a mechanism to bring in responsible parties, known, but unidentified, who can only be ascertained through the use of judicial mechanisms such as discovery. It is not designed to allow tardy plaintiffs to sleep on their rights for seven years, make only one telephone call prior to the running of the statute, and then enjoy the benefits of the rule. Id. at p The Court also held that Rule 9(h) is strictly construed and requires that a plaintiff actually exercise due diligence prior to the running of the statute of limtations by inquiring into the actual identity of fictitious parties before the relation back privilege of Rule 15(c)(2) will apply. Plaintiff s lack of due diligence is evident from the report of the National Transportation Safety board, which was released to the public on March 29, 2011 at 11:47. (R.-P.465). The February 23, 2010 Factual Report of Bell Helicopter clearly establishes the involvement of Provine Helicopter s Fuel Truck, Truck P29, in the refueling of Plaintiff s helicopter. Plaintiff had ample time between March 29, 2011 and the expiration of the 7

20 statute of limitations on October 26, 2012 to investigate possible claims against the manufacturer of the fuel truck and its components, and did not do so with reasonable diligence. Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, (Miss. 2006); Nguyen v. Miss. Valley Gas Co., 859 So.2d 971, 979 (Miss. 2002) (citing Doe v. Miss. Blood Servs., Inc., 704 So.2d 1016, 1019 (Miss. 1997)). In Veal v. J.P. Morgan Trust Co., N.A., 955 So.2d 843 (Miss. 2007), Plaintiff first argued that leave of court was not required because the existing defendants consented to the amendment. The Supreme Court rejected this argument and held that because the second amended complaint added new defendants, leave of court pursuant to Miss.R.Civ.P. 21 was required. Id. at p Plaintiff also argued that the new parties were merely substituted for fictitious parties pursuant to Rule 9(h), so no leave of court was required. The Supreme Court held that [i]n cases where it is unnecessary to amend the content or the substance of a plaintiff s complaint, and the only change is to substitute the defendant s true name for the fictitious name Rule 9(h) applies, and leave of court is not required. Id. at p However, the Supreme Court found that the substituted defendants were not fictitious parties under Rule 9(h) because the complaint added new allegations against the substituted defendants and the original complaint did not articulate the wrongful conduct of and the claims against the fictitious parties added to the amended complaint. The Court explained: Thus, where a plaintiff wishes to file suit against a defendant whose name is not known, the suit may be filed by providing the defendant a fictitious name. Rule 9(h) is not intended to serve as an insurance policy to plaintiffs who wish to protect themselves in case they discover new defendants in 8

21 the course of litigation. Rule 9(h) authorizes the plaintiff to deviate in only one respect from the requirements of the Mississippi Rules of Civil Procedure in bringing a claim. That is, the plaintiff is allowed to use a fictitious name, rather than the true name of the defendant. In other words, the purpose of Rule 9(h) is to allow a plaintiff to proceed with a lawsuit where the plaintiff knows and can articulate the wrongful conduct of, and claims against, the fictitious party, but simply does not know that party s name. Rule 9(h) does not say that a plaintiff may include a fictitious party because the plaintiff suspects that there might be someone out there who might have engaged in conduct which might be actionable. For instance, if the plaintiff knew that a nurse was assisting a doctor with a procedure and that the nurse engaged in negligent conduct, the plaintiff is not prevented from proceeding with litigation against the nurse simply because the plaintiff does not know the name of the nurse. The plaintiff may sue Nurse X and upon learning the nurse s name, substitute it for the fictitious party under Rule 9(h). See Miss.R.Civ.P. 9(h). However, where a plaintiff suspects that there might have been others involved in the procedure who might have been negligent, but is, at the time suit is filed, unaware of who they are or what negligent act they are alleged to have committed, the plaintiff may not include a fictitious party in the complaint. This Court has previously stated that the purpose of Rule 9(h) is to provide a mechanism to bring in responsible parties, know, but unidentified, who can only be ascertained through the use of judicial mechanisms such as discovery. Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, (Miss. 2006) (emphasis added). Veal,955 So.2d at (emphasis supplied). In this case, all that Plaintiff said, in 3 of his Complaint, was that defendants A-P are corporations or persons whose true identities and addresses are unknown at this time and whose liability to the Plaintiff is unknown at this time. Because Plaintiff did not know when he filed his Complaint what the fictitious Defendants did, failed to articulate their wrongful 9

22 conduct and the claims against them, and included new facts against them in an Amended Complaint that more than doubled in size of the original complaint the joinder in the Amended Complaint did not comply with the provisions of Rule 9(h) and the Amended Complaint does not relate back under the provisions of Rule 15(c)(2). Veal, 955 So.2d at Plaintiff must have recognized as much because he moved the Court for leave to file an amended complaint pursuant to Rules 15 and 18 even though leave of court is unnecessary when substituting the true names of fictitious parties under Rule 9(h). Id. at p Consequently, Rule 9(h) is unavailable to the Plaintiff because he failed to describe the allegedly wrongful conduct of the fictitious defendants in the original Complaint, because he included completely new allegations against Appellees in his Amended Complaint and because he did not proceed with reasonable diligence. Anderson v. Alps Automotive, Inc., 51 So.3d 929, (Miss. 2011); Rainey v. Grand Casinos, Inc., 47 So.3d 1199, (Miss.Ct.App. 2010). Simply put, a plaintiff cannot use Rule 9(h) as a means to reserve a spot for those unknown individuals or entities he may discover later; rather, Rule 9(h) is to be used to clearly identify a party or entity that the plaintiff is aware of but cannot name. D.P. Homes Trucking, LLC v. Butler, 94 So.3d 248, 254 (Miss. 2012), citing Veal, 955 So.2d at 846. Rule 15(c) allows a complaint to relate back to the filing of the original complaint only if certain circumstances exist, which include each of the following: (1) that within 120 days of the filing of suit the new party, (2) received such notice of the action that he will not be prejudiced, and (3) the newly added defendant knew or should have known that but for a mistake 10

23 concerning the identify of the proper party, the action would have been brought against the party. None of these conditions exist in this case. There was no notice to Velcon of the December 27, 2011 filing of the lawsuit. Indeed, Plaintiff claims he only became aware of Velcon on February 1, There was no mistaken identity. Rule 15(c) simply provides no relief to Plaintiff. See Wilner v. White, 929 So.2d 315 (Miss. 2006); Scaggs v. GPCH-GP, Inc., 23 So.3d 1080 (Miss. 2010) , Miss. Code of 1972 Plaintiff has argued that of the Miss. Code somehow tolls the applicable statute of limitations, i.e , running. This statute has been held to apply only to a situation where Plaintiff has been unable to effect process upon the defendant. See Sullivan v. Trustmark Natl. Bank., 653 So.2d 930 (Miss. 1995). Here, Defendant Velcon has always been amenable to service of process via the Mississippi long-arm statute, , Miss. Code Ann. (1972, as amended), at all times since Plaintiff s cause of action accrued on October 25, There is no contention that Plaintiff was unable to locate the whereabouts of Velcon. Plaintiff s interpretation of would render unconstitutional as explained in Vice v. David Window Co., 2007 W.L (S.D. Miss. Jan. 06, 2007). CONCLUSION Plaintiff s claim against Velcon is clearly time barred by Miss. Code Ann. In that it was filed more than three years after Plaintiff s claim occurred on October 25, 2009, the date of Plaintiff s injuries in the helicopter crash. Plaintiff s original Complaint fails to 11

24 charge any of the fictitious defendants with any wrongdoing. No attempt is even made to do so. Thus, Rule 9(h) in no way assists Plaintiff. Likewise, Rule 15(c) in no way applies. The trial Court s ruling was absolutely correct and should be affirmed. th RESPECTFULLY SUBMITTED, this the 18 day of March, VELCON FILTERS, LLC BY: Marc A. Biggers MARC A. BIGGERS, MB#2533 RICHARD L. KIMMEL, MB#3772 Of Counsel to Defendant Velcon Filters, LLC OF COUNSEL: UPSHAW, WILLIAMS, BIGGERS, & BECKHAM, LLP Post Office Drawer 8230 Greenwood, Mississippi Telephone: 662/ mbiggers@upshawwilliams.com rkimmel@upshawwilliams.com CERTIFICATE OF SERVICE I, Marc A. Biggers, of counsel to Defendant Velcon Filters, LLC, do hereby certify that I have caused a copy of the foregoing Motion to be electronically filed in the Supreme Court of Mississippi via that Court s ECF system, which sent notification to the following counsel of record: Wayne E. Ferrell, Jr., Esq. Attorney at Law 405 Tombigbee Street Post Office Box

25 Jackson, MS Attorney for the Plaintiff/Appellant Charles G. Copeland, Esq. Dale G. Russell, Esq. Michael C. Gatling, Esq. Timothy J. Sterling, Esq. James R. Moore, Jr., Esq. Post Office Box 6020 Ridgeland, Mississippi Attorneys for Defendant/Appellee C. Wade Navaree, II, et al Joe S. Deaton, III, Esq. Richard Jason Canterbury, Esq. Deaton & Berry, P.A. P.O. Box Flowood, MS Attorney for Defendant/Appellee Scott Petroleum W. Scott Welch, III, Esq. Baker Donelson P.O. Box Jackson, MS Attorney for Knappco Corporation and Wilden Pump and Engineering, LLC th SO CERTIFIED, this the 18 day of March, s/ Marc A. Biggers MARC A. BIGGERS 13