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Swann and Heinz Receive Dismissal With Prejudice

Gerald Swann and Ben Heinz obtained a dismissal with prejudice of product liability claims made against one of the Firm’s manufacturing clients in a case pending in the United States District Court for the Southern District of Mississippi. The plaintiffs had attempted to take advantage of the fictitious party pleading rules and relation back doctrine allowed in Mississippi courts in order to sue the Firm’s client 17 months after the applicable statute of limitations on the plaintiffs’ claims had expired. Swann and Heinz filed a Federal Rule 12(b)(6) motion to dismiss and argued that the plaintiffs could not satisfy the “reasonably diligent inquiry” standard applicable to the plaintiffs’ use of fictitious party pleading. Since no formal discovery had occurred in the case, Swann and Heinz argued the plaintiffs had clearly ascertained the identity of the Firm’s client by informal investigative techniques that could certainly have been undertaken well before the statute of limitations expired. Swann and Heinz also noted the plaintiffs had admitted in their pleadings that one of the ways in which they confirmed the identity of the Firm’s client was by a phone call to the injured plaintiff’s employer. The district court agreed with the argument presented by Swann and Heinz and found that the plaintiffs could not benefit from the fictitious party pleading rules and the relation back doctrine. The district court granted the motion to dismiss with prejudice due to the expiration of the statute of limitations. The district court also denied a follow-up motion for reconsideration filed by the plaintiffs wherein they argued that the district court had considered matters outside the pleadings in granting the original motion to dismiss.

Gerald Swann is a partner in the Firm’s Montgomery office. Ben Heinz is a partner in the Firm’s Mobile office and, along with his Alabama practice, is admitted to practice in all state and federal courts in Mississippi.


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