Substitution of defendants' names for fictitious ones not barred by statute of limitations where original complaint was timely filed

Law Reporter, Apr 2002

PRACTICE & PROCEDURE

Gasparini v. Bredemeier, 802 So. 2d 1062 (Miss. Ct. App. 2001).

A Mississippi appellate court held that plaintiffs substitution of defendants' names for fictitious ones is not barred by the statute of limitations where the original complaint containing the fictitious names was timely filed.

Here, Gasparrini, a psychologist, evaluated families involved in custody disputes to determine which parent should have primary custody. Rogers, who had been evaluated and denied custody of her children based on Gasparrini's recommendation, filed a complaint against Gasparrini with a professional association and, after being informed that an investigation would be conducted, wrote letters to Gasparrini's employers and others informing them of the investigation. As a consequence, Gasparrini's business suffered.

One year after Rogers sent out the letters, Gasparrini sued her and several fictitious parties, alleging various claims, including defamation, false light, invasion of privacy, and conspiracy. Plaintiff subsequently substituted the Bredemeiers-who also lost a custody dispute and allegedly helped Rogers send out the letters-for one of the fictitious parties. A trial court granted the Bredemeiers summary judgment, holding that the one-year statute of limitations had expired.

Reversing, the appellate court noted that state civil procedure rules provide that, when a party is ignorant of the name of an opposing party, the opposing party may be designated by any name in the pleadings. If the real name is discovered, the pleadings may be amended to substitute the true name for the fictitious one, the court explained. In addition, any amendments to the pleadings date back to the date of the original pleading, the court said.

The court rejected defendants' argument that, because plaintiff always suspected them of helping Rogers, he was not ignorant of their names when the original complaint was submitted. Ignorance of an opposing party extends beyond mere lack of knowledge of the opposing party's name, the court explained. Consequently, even if plaintiffs know the true name of a person, they are still ignorant of the name if they lack knowledge of the facts giving them a cause of action against that person. Here, until the conclusion of discovery, plaintiff could not ascertain the extent of defendants' involvement in the case, the court reasoned. Thus, the statute of limitations does not bar plaintiffs action. Accordingly, the court remanded.

Plaintiff's Counsel

*Chester D. Nicholson, Gulfport, Miss.

*Gail D. Nicholson, Gulfport, Miss.

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