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) (Jefferson Circuit Court: CV-24-901922).

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
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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

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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
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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.

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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-

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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.

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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.
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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

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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

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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

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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

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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.
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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."
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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

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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

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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.

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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,

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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."

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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

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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.' "

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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."
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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

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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

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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

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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.

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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

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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

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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
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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)).
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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

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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
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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.

38