Cert. grant – Carpenter v. Kenneth Thompson Builders et al. – a civil procedure puzzle

Carpenter v. Kenneth Thompson Builders –  Cert. granted Feb. 27, 2014. This actually involves two cases seeking damages based on Carpenter’s having tripped on the sidewalk of the Jackson County Visitor’s Welcome Center in August 2007.  In the first, filed in June 2008, Carpenter sued MDOT and John Does 1-5. A year later the Court (Judge King Jackson) granted her motion to amend her complaint to add Mallette Brothers Construction and J.L. McCool  Contractors.  (Both contractors had worked on improvements to the Center). In March 2010, Carpenter moved to add more defendants -KTB, Coastal Masonry, Pro Mow Lawn Care and Capital Security.  The only defendant objecting to the motion was MDOT and Carpenter’s attorney claimed he tried and tried to get a hearing date on his motion to amend but that MDOT would agree to no date before the statute of limitations ran.   (Note that  the filing of a motion to amend does not toll the SOL).  

   Thus, in July 2010, Carpenter filed a new complaint over the same incident but naming as defendants KTB, Coastal Masonry, Pro Mow Lawn Care and Capital Security.  This case was assigned to Judge Krebbs.  Two months later Carpenter filed a motion to consolidate the first and second cases.  Two months after that Judge King Jackson granted the motion to amend in Carpenter I. In Carpenter II, KTB filed a motion to dismiss based on Carpenter’s having split her cause of action and that consolidation should not be permitted because Carpenter should have sued KTB in Carpenter I under the doctrine of priority jurisdiction.  After having been added to Carpenter I, KTB filed a motion to dismiss in that case.  In June 2011, Judge King Jackson granted the motion to dismiss in Carpenter I based on the statute of limitations having expired before the new defendants had been served and that the relation-back doctrine did not apply. This ended up dismissing KTB, Coastal Masonry, Pro Mow Lawn Care and Capital Security. Judge King Jackson  certified the order as a final judgment.   She did not address the motion for consolidation or the claim regarding claim splitting.   A few days later, Judge Krebbs granted the motion to dismiss in Carpenter II based on improper claim splitting and priority jurisdiction. Carpenter appealed both judgments and the cases were consolidated for purposes of appeal.

On appeal the Court addresses several issues: the motion to consolidate (which neither judge ruled on),  claim splitting and priority jurisdiction.  Although neither judge ruled on the motion to consolidate and an appellate court will usually not consider a motion that is not ruled upon,  the Court states that granting this motion would have been the efficacious way to deal with these cases.  “Certainly, the need for this appeal may have been avoided if the trial judges had either consolidated the cases or reassigned the presiding judge of one of the cases, so that one circuit judge would have ruled on both cases.”  

As to claim splitting and Carpenter II, the Court notes that at the time Carpenter II was filed, there were no claims against KTB, Coastal Masonry, Pro Mow Lawn Care and Capital Security. “Claim splitting requires the same parties in different cases. Such was not the case here when Carpenter II was decided.”  “The doctrine of claim-splitting, just like res judicata, requires that the parties be identical. It also requires that a judgment be entered in favor of one of the parties. When Carpenter II was filed, the identity of the parties in Carpenter I and Carpenter II was not the same.”

 As discussed below, we cannot predict what Judge Jackson would have decided as to the relation-back doctrine, if Carpenter II had been consolidated with Carpenter I. However, the Defendants were served with process inCarpenter II before the limitations period expired. Knowing that the Defendants had been served with process and actually had notice of the claims that were brought in both Carpenter I and II, the decision that the claims  would not relate back under MRCP 15(c)  does not seem logical.

 

As for priority jurisdiction, this does not usually involve two cases filed in the same court. However, it was error for Judge Krebbs to dismiss Carpenter II based on priority jurisdiction. 

In Carpenter I, Judge Jackson’s order of dismissal considered “whether these defendants are fictitious parties as contemplated by [Mississippi] Rule [of Civil Procedure] 9(h) and whether the claims relate back so as to fall within the statute of limitations.” Judge Jackson ruled that the Defendants were served with the Carpenter I complaint after the statute of limitations expired,   and the Rule 15(c) relation-back doctrine did not apply. Looking at it solely from Judge Jackson’s perspective, without the consideration of Carpenter II as discussed above, her analysis appears to be correct.

 However, we do not view this appeal solely from Judge Jackson’s perspective. The supreme court has consolidated these cases for our review. We recognize the Defendants were served with process in Carpenter II before the limitations period had expired. Knowing that the Defendants had been served with process and actually had notice of the claims that were brought in both Carpenter I and II, the decision that the claims would not relate back under Rule 15(c) does not seem logical.

 

The Court ends up by reversing both Carpenter 1 and Carpenter II.  The Court notes that the cases were consolidated on appeal and should remain so and remanded to Judge King Jackson who should determine whether the statute of limitations had indeed run against these defendants.  However, if those defendants were served with the complaint in Carpenter II prior to the SOL’s having run, then service was timely and the court need not determine whether the relation back doctrine apples. 

Judge Carlton dissents:  She writes that she would affirm both dismissals. While Carpenter sued five John Does, when adding  KTB, Coastal Masonry, Pro Mow Lawn Care and Capital Security, she did not substitute  them for the John Does and, thus the relation back doctrine does not apply to save the second amended complaint from the perils of the SOL having run  in Carpenter I.  Furthermore the court was correct to dismiss Carpenter II based on claim splitting and priority jurisdiction.  

Of interest – KTP filed a motion to strike portions of Carpenter’s brief citing facts outside the record and containing disrespectful language about Kenneth Thompson’s attorney.  This was  granted

Also, I assume that the case against the original three defendants including MDOT moved forward in the trial court while this appeal was being decided.   

KTB’s Petition for Certiorari

Carpenter’s response

One thought on “Cert. grant – Carpenter v. Kenneth Thompson Builders et al. – a civil procedure puzzle

  1. This is one of those cases that makes you glad not to be a judge. Judge Carlton’s point about fictitious parties, though, is worth noting. I see complaints where the plaintiff places “John Does 1-5” in the caption as though that alone will allow substitution later. Ideally, though, the Plaintiff should describe each John Doe in the complaint, e.g. “John Doe number 1 is the company that distributed the product; John Doe number 2 is the manufacturer of said product.” As explained in Moore’s:

    “A complaint or other affirmative pleading may name an unknown defendant by using a ‘John Doe’ appellation or other description if the plaintiff has been unable to ascertain the real identify of the defendant. A plaintiff using the John Doe appellation must not only allege that the defendant is unknown, but also provide, or attempt to provide, an adequate description or other known information so that service of process can at least be attempted. The use of the John Doe appellation or other descriptive term is not to avoid embarrassment or harm to the defendant, as with fictitiously named plaintiffs, but to allow the plaintiff to proceed when the defendant is unknown and the plaintiff has a need to present the claim nevertheless, e.g., because the statute of limitations is due to expire. ”

    2-10 Moore’s Federal Practice – Civil § 10.02

    Later, when the John Doe is identified, the amended complaint should substitute the additional defendant for an actual John Doe. For example, “Defendant ABC Const. Co. is the defendant named as John Doe 2 in the original complaint.” The caption of the amended complaint, then, would add ABC Const. Co. and name the John Does as John Does 1 and 3-5.
    .

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