holding that a plaintiff's failure to act upon a motion to dismiss -- which stated that the named defendant was not the proper party -- constituted a lack of due diligence because the "attorney was in fact privy to information at that point that put him on notice that [the named defendant] might not be the [proper defendant]"
How later courts described this case
- holding that a plaintiff's failure to act upon a motion to dismiss -- which stated that the named defendant was not the proper party -- constituted a lack of due diligence because the "attorney was in fact privy to information at that point that put him on notice that [the named defendant] might not be the [proper defendant]"
Written by the judges who cited it.
The opinion
MURDOCK, Justice
(concurring specially).
I concur in the main opinion. I write separately to note that it appears from the materials before us that neither the trial court nor this Court has been presented with the issue whether the factual requirements necessary to invoke Rule 15(c)(3), Ala. R. Civ. P., were satisfied in this case. Compare Ex parte Empire Gas Corp., 559 So.2d 1072 (Ala.1990); see also Peacock v. Clay, 831 So.2d 33 (Ala.Civ.App.2001).