White et al v. McMillin et al
ORDER denying 31 Motion for Summary Judgment; granting 36 Motion Hold in Abeyance re 31 MOTION for Summary Judgment; denying 40 Motion to Amend/Correct as set out in the order. Because the case jumped off track at an early stage, and because of the various procedural issues, the parties are instructed to set the matter for an in-person case-management conference at which point the Magistrate Judge will enter an amended case-management order. Signed by District Judge Daniel P. Jordan III on August 11, 2011. (SP)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CHRISTINE WHITE, et al.
CIVIL ACTION NO.: 3:09cv120-DPJ-FKB
MALCOLM E. MCMILLIN, et al.
This § 1983 case is before the Court on Defendants’ Motion for Summary Judgment .
Plaintiffs did not respond, but instead filed a Motion  seeking additional discovery in
accordance with Rule 56(f) of the Federal Rules of Civil Procedure.1 Plaintiffs also filed a
Motion to Amend  their Complaint. The Court, having fully considered the premises, finds
that the Rule 56(f) motion should be granted, while Plaintiffs’ Motion to Amend the Complaint
should be denied without prejudice.
FACTS AND PROCEDURAL HISTORY
As the Court noted in its July 2, 2010 Order , certain facts—as alleged by
White—have not yet been disputed. In April 2007, Jackson Police arrested Plaintiff Christine
White and took her to the Hinds County Detention Center (“HCDC”). Upon arrival, White
complained of vaginal spotting and feeling ill and was transported to the University of
Mississippi Medical Center (“UMMC”) where she was diagnosed as pregnant with twins and
suffering from a urinary tract infection. She was prescribed medication and returned to HCDC,
though she claims she never received the prescribed medication. Over the next two months,
Although Rule 56 was amended effective December 1, 2010, “[t]he standard for
granting summary judgment remains unchanged,” and “[s]ubdivision (d) carries forward without
substantial change the provisions of former subdivision (f).” Fed. R. Civ. P. 56 advisory
committee’s note. For convenience and conformity with the pleadings, the Court will refer to the
prior rule number.
White suffered several episodes of abdominal cramping and vaginal bleeding. She alleges that
she was returned to UMMC once and that other requests were ignored.
According to White, she woke the morning of June 6, 2007, to find her bed covered in
blood. She was doubled over in pain. White contends that guards then ignored her request for
medical attention and instead directed her to “sit on the toilet and try to use the bathroom.” Pls.’
Response  Ex. B, White Aff. ¶ 8. Shortly thereafter, White miscarried, delivering her
stillborn babies into the toilet. White avers that Guards then instructed her cellmate, Yolanda
Banks, to flush the fetuses down the toilet, and when that failed, instructed Banks to dispose of
the fetuses in the trash. Nearly two hours later, White was transported to Central Mississippi
Medical Center by ambulance where doctors “verified that [White] had suffered an incomplete
abortion.” Id. She received treatment and was returned to HCDC.
White, the father of her deceased fetuses, Christopher Wallace, and White’s other
children originally sued Hinds County and Sheriff Malcolm McMillin, individually and in his
official capacity, in the Circuit Court of Hinds County on December 4, 2008. Plaintiffs also
included as Defendants John Does 1–10. McMillin and Hinds County removed the case under
28 U.S.C. § 1441, asserting federal question jurisdiction. In April 2009, McMillin moved to stay
the proceedings on the basis of qualified immunity and sought summary judgment. The Court
granted the stay, and Plaintiffs responded with a Rule 56(f) Motion, which the Court also
granted. Ultimately the Court granted McMillin’s Motion for Summary Judgment as to
Plaintiffs’ individual-capacity claims and lifted the stay. See Order  July 2, 2010.
On August 19—five days before the magistrate judge entered a Case Management
Order—the County moved for summary judgment on all remaining claims. Plaintiffs responded
by filing a second Rule 56(f) Motion and two weeks later filed their Motion to Amend. Finally,
on December 17, 2010, Plaintiffs filed Motions [44, 45] urging the Court to stay discovery until
the Court ruled on the Rule 56(f) Motion and to otherwise extend deadlines. The Court granted
those Motions with a text order indicating that new deadlines would be established after this
STANDARDS OF REVIEW
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when evidence reveals no genuine dispute regarding any material fact and that the
moving party is entitled to judgment as a matter of law. The rule “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a sufficient showing to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). But Rule 56(c)(1)(A) allows a party to move for summary judgment
“at any time.” And it is well established in the Fifth Circuit that “Rule 56 does not require that
any discovery take place before summary judgment can be granted.” Washington v. Allstate Ins.
Co., 901 F.2d 1281, 1285 (5th Cir. 1990). Nevertheless, Rule 56(f) provides a safe harbor for
nonmovants who can demonstrate that discovery is necessary to produce affidavits or other
evidence in compliance with Rule 56(e).
Although Rule 56(f) motions “are broadly favored and should be liberally granted,”
Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006), “[t]he decision to grant or deny
a Rule 56(f) motion is within the sound discretion of the district court,” Johnson v. Hinds Cnty.,
Miss., 237 F.3d 632, at *1 (5th Cir. 2000) (unpublished table decision). To obtain relief under
Rule 56(f), “the opposing party must demonstrate how the additional time will enable him to
rebut the movant’s allegations of no genuine issue of material fact.” Leatherman v. Tarrant
Cnty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1396 (5th Cir. 1994). Stated
differently, the “nonmovant may not simply rely on vague assertions that discovery will produce
needed, but unspecified, facts.” Washington, 901 F.2d at 1285 (affirming denial of Rule 56(f)
motion); see also Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (same). “Rather,
a request to stay summary judgment under Rule 56(f) must set forth a plausible basis for
believing that specified facts, susceptible of collection within a reasonable time frame, probably
exist and indicate how the emergent facts, if adduced, will influence the outcome of the pending
summary judgment motion.” Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (citations
and quotations omitted).
When a plaintiff seeks to amend her complaint more than 21 days after serving it, she
may do so “only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P.
15(a)(2). But “[t]he court should freely give leave when justice so requires.” Id. While “the
grant or denial of an opportunity to amend is within the discretion of the District Court,” the
Supreme Court has held:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject
of relief, he ought to be afforded an opportunity to test his claim on the merits. In the
absence of any apparent or declared reason—such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.—the leave sought should, as the rules require, be
Foman v. Davis, 371 U.S. 178, 182 (1962). That is, because Rule 15(a) “evinces a bias in favor
of granting leave to amend . . . [a] district court must possess a ‘substantial reason’ to deny a
request for leave to amend.” Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) (citations
omitted). In this case, the parties primarily dispute whether the amendment would be futile due
to the applicable statues of limitations.
Defendants’ Motion for Summary Judgment and Plaintiffs’ Rule 56(f) Motion
Discovery motions are “broadly favored and should be liberally granted.” Raby v.
Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (citations omitted). Here, Plaintiffs’ Rule 56(f)
Motion was procedurally sufficient because they provided an affidavit setting “forth a plausible
basis for believing that specified facts, susceptible of collection within a reasonable time frame,
probably exist and indicate how the emergent facts, if adduced, will influence the outcome of the
pending summary judgment motion.” Id. While Defendants highlight some of the less specific
language in the Motion, other sections provide sufficient detail to satisfy this requirement.
Defendants also contend that the Motion fails because Plaintiffs were dilatory. The
argument is easily rejected because Defendants moved for summary judgment before they served
pre-discovery disclosures and before the case-management conference—i.e., before the
discovery deadline was even set. See Culwell v. City of Fort Worth, 468 F.3d 868, 872 (5th Cir.
2006) (finding abuse of discretion in denial of Rule 56(f) motion where plaintiff conducted some
discovery before deadline).
Scope of Discovery
Defendants’ more plausible argument is that Plaintiffs have already conducted necessary
discovery. Defendants’ Motion for Summary Judgment correctly notes that there is no
respondeat superior liability under § 1983 and that Plaintiffs must demonstrate a custom or
policy in order to recover against a municipality. Def.’s Mot.  at 2. They further note that
Plaintiffs were granted leave to conduct discovery regarding the County’s policies and customs
before responding to Defendant Malcolm McMillin’s Motion for Summary Judgment based on
qualified immunity. But discovery regarding qualified immunity and discovery necessary to
respond to the pending motion are not coterminous.
Defendants contend that the Court’s Order granting qualified immunity essentially ruled
on the issues they now press. But when the Court granted Defendant McMillin qualified
immunity, it did so because Plaintiffs presented “no evidence suggesting that McMillin was
aware of White’s serious medical needs,” and no evidence that he was aware of “any custom or
policy of guards ignoring the HCDC’s official health related policies.” Order  July 2, 2010
at 8 (emphasis added). In other words, McMillin lacked personal knowledge sufficient to
establish deliberate indifference on his part. Id. Regarding the adequacy of the County’s
policies and training, Defendants now contend that the Court has already ruled that they comply
with all constitutional requirements. Defs.’ Mem.  at 7–8. But the Court skipped that step in
the qualified-immunity analysis and instead held that McMillin acted with objective
reasonableness. Order  July 2, 2010 at 8.
The question now is whether the County—not McMillin—promulgated unconstitutional
policies or had “[a]ctual or constructive knowledge of [a] custom . . . attributable to the
governing body of the municipality or to an official to whom that body has delegated
policy-making authority.” Webster v. City of Hous., 735 F.2d 838, 842 (5th Cir. 1984) (en banc).
Significant to this discussion, McMillin testified that he delegated policy-making authority.
Plaintiffs are entitled to discovery on the issues raised in Defendants’ Motion regarding the
§ 1983 claim before they must respond to it. Plaintiffs are likewise entitled to discovery on their
state-law claims because the qualified-immunity discovery regarding Defendant McMillin was
not directly applicable to those claims. Plaintiffs will be allowed to conduct the discovery
outlined in their Motion.2
Finally, although the Motion for Summary Judgment was premature, the Court
acknowledges that the various motions were not promptly addressed due to oversight. The Court
anticipates that the additional discovery may alter Defendants’ position, rendering the current
Motion stale. The Motion for Summary Judgment is therefore denied without prejudice to
Defendants’ right to reurge the issues after appropriate discovery.
Plaintiffs’ Motion to Amend
In their original Complaint, Plaintiffs identified John Does 1–10 as “individuals whose
wrongful conduct caused or contributed to the injuries and damages of the plaintiffs.” Notice of
Removal  Ex. A, Pls.’ State Ct. Compl. ¶ 6. They further noted that “[t]he specific identities
of John Does 1–10 are unknown to the Plaintiffs at this time, but will be identified upon
As discussed below, the parties are ordered to conduct a case-management conference
with Judge Ball. During that meeting, they must develop a discovery plan and, to the extent
possible, explore with Judge Ball any potential disagreements regarding the scope of discovery
discovery of the true identity of each defendant.” Id. Plaintiffs now seek to add the following
named defendants under Rule 15:
Major Ruth Wyatt, medical director for HCDC;
Richard Van Egmond, training director for HCDC;
Captain Ruth Callahan;
Deputy Jacqueline Jones;
Deputy Sheila White;
Deputy Angela Branch;
Sergeant Frances Mitchell;
Nurse Delores Warden;
Nurse Paulette McDowell;
Nurse Michael White;
Nurse Belinda Jones; and
Nurse Mikembe Harris.
Defendants argue that amendment should be denied as futile because the statutes of
limitations on Plaintiffs’ federal and state claims have expired. The argument raises two issues.
First, should the Court toll the statutes of limitations pursuant to section 15-1-57 of the
Mississippi Code for the period during which the Court stayed discovery of issues other than
qualified immunity. If not, do the claims relate back under Federal Rule of Civil Procedure
15(c) or its state counterpart, Mississippi Rule of Civil Procedure 15(c).
The statute of limitations in a § 1983 suit is that provided by the forum State for
personal-injury torts. Wallace v. Kato, 549 U.S. 384, 387 (2007). Thus, Plaintiffs’ federal
claims are governed by Mississippi’s three-year general-limitations statute. See Miss. Code
Ann. § 15-1-49 (2010). Because Plaintiffs’ claims accrued on June 6, 2007, the limitations
period for the § 1983 claims would have expired on June 6, 2010. Their state-law claims would
have limitations periods of no more than three years. Thus Plaintiffs’ September 16, 2010
Motion appears untimely on its face. But Plaintiffs argue in reply that the qualified-immunity
stay granted by the Court prevented discovery of the facts necessary to amend their Complaint
and therefore tolled the limitations period for 444 days.
State law generally governs appropriate tolling periods. Wallace, 549 U.S. at 394.
In this case, Plaintiffs rely on section 15-1-57, which states:
Where any person shall be prohibited by law, or restrained or enjoined by order,
decree, or process of any court in this state from commencing or prosecuting any
action or remedy, the time during which such person shall be so prohibited,
enjoined or restrained, shall not be computed as any part of the period of time
limited by this chapter from the commencement of such action.
Before examining the statute, it is important to place it in the factual context of this case. On
April 14, 2009, the Magistrate Judge entered a text order granting Defendants’ Motion to Stay
, stating that “[a]ll discovery except that related to the qualified immunity defense is stayed
pending a ruling by the district judge on the motion for summary judgment.” Significant to this
analysis, the stay was limited to certain discovery issues and had no impact on the parties’ ability
to file pleadings. The order was consistent with the local rules then in effect. See L.U. Civ. R.
Plaintiffs did not provide, and the Court’s research did not reveal, any binding authority
applying section 15-1-57 in this context. Thus, the Court must make an Erie guess and discern
the intent of the Mississippi Legislature. In re Katrina Canal Breaches Litig., 495 F.3d 191,
206 (5th Cir. 2007) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)). In doing so, the Court
follows the Mississippi rules of construction. Id. “It is our duty to interpret the statutes enacted
by the Legislature, and to neither broaden nor restrict the legislative act.” Miss. Dep’t of Transp.
v. Allred, 928 So. 2d 152, 156 (Miss. 2006). “Whatever the Legislature says in the text of the
statute is considered the best evidence of the legislative intent.” Id. at 155.
Looking first to the plain language of the statute, it is not apparent that it applies as
Plaintiffs suggest. The statute allows tolling when a person is “prohibited by law, or restrained
or enjoined by order” from “commencing or prosecuting any action or remedy.” Id. The
magistrate judge’s stay did not “prohibit” or “enjoin” Plaintiffs from “commencing or
prosecuting any action or remedy.” But did it “restrain” them from doing so?
The definition of “restrain” is less concrete than “prohibit” or “enjoin.” In its most
relevant context, Black’s Law Dictionary defines “restrain” as “ prohibition of action,” which
is obviously consistent with the other terms found section 15-1-57. Black’s Law Dictionary
1429 (9th ed. 2009). Webster likewise defines the term as “to hold . . . back from some action,
procedure, or course; prevent from doing something.” Webster’s Third New International
Dictionary 1936 (1981). But it also includes “to moderate or limit the force, effect,
development, or full exercise of.” Id. Thus, if the statute is read to toll when a court order limits
a party’s full exercise of his ability to prosecute his claim, then it might support Plaintiffs’
position. But if it means that the order must prohibit the commencement or prosecution, then the
stay is not sufficient to toll because it merely precluded certain discovery.
Although ambiguity may exist, “[a]ssociated words take their meaning from one another
under the doctrine of ‘noscitur a sociis’, the philosophy of which is that the meaning of a
doubtful word may be ascertained by reference to words associated with it.” State Farm Ins. Co.
v. Gay, 526 So. 2d 534, 537 (Miss. 1988) (citation omitted). Here, it is not surprising that the
legislature would use the word “prohibit” when discussing laws and “restrain” when
discussing an order. Miss. Code Ann. § 15-1-57 (tolling where party “prohibited by law, or
restrained or enjoined by order”). But the statute would make no sense if those terms carried
differing levels of preclusion when applied to laws and orders. Thus, whether the party faces a
law or order, it must prohibit prosecution to toll. Although there are no Mississippi cases on
point, the statute seems to have been interpreted consistent with this analysis.3
Parties have successfully employed section 15-1-57 when completely precluded from
initiating suit. See, e.g., Long v. Mem’l Hosp. at Gulfport, 969 So. 2d 35, 37 (Miss. 2007)
(finding that plaintiffs were “restrained” from suing defendant previously identified as a John
Doe where John Doe defendants were dismissed and order granting interlocutory appeal stayed
proceedings with express tolling of statute of limitations); Scaggs v. GPCH-GP, Inc., 931 So. 2d
1274, 1276 (Miss. 2006) (tolling statute during 60-day notice period required for medicalmalpractice claims); Floyd v. Childs, No. 4:92CV270-S, 1996 WL 407574, at *1 (N.D. Miss.
May 14, 1996) (tolling statute during period where “cause was formally stayed by order of the
But the Mississippi Supreme Court has frequently rejected efforts to utilize section 15-157 when plaintiffs’ efforts to commence action are merely frustrated. See, e.g., Chimento v.
Fuller, 965 So. 2d 668, 675–76 (Miss. 2007) (reversing trial court’s decision to toll where
injunction was granted as to one disputed promissory note but did not affect plaintiff’s ability to
pursue second disputed note); Grant v. Miss., 686 So. 2d 1078, 1083–84 (Miss. 1996) (refusing
to toll when state statute merely precluded recovery) (citing White v. White, 601 So. 2d 864, 865
(Miss. 1992) (refusing to toll when state-common law merely precluded recovery)); Townsend v.
In making its Erie guess, the Court considered, to the extent available, the sources listed
in Hodges v. Mack Trucks, Inc., 474 F.3d 188, 199 (5th Cir. 2006). See also Centennial Ins. Co.
v. Ryder Truck Rental, Inc., 149 F.3d 378, 382 (5th Cir. 1998) (Where no dispositive decisions
exist, federal courts applying Mississippi law look first to “decisions of the Mississippi Supreme
Court in analogous cases.”).
Estate of Gilbert, 616 So. 2d 333, 336 (Miss. 1993) (holding that section 15-1-57 did not toll
statute of limitations where another suit stemming from same accident was on direct appeal); see
also Funderburg v. Pontotoc Elec. Power Ass’n, 6 So. 3d 439, 443 (Miss. Ct. App. 2009)
(finding no basis to toll when plaintiffs were not parties to initial suit); Kozam v. Emerson Elec.
Co., No. EC 87-313-D-D, 1988 WL 163052, at *2 (N.D. Miss. May 31, 1988) (refusing to toll
despite EEOC’s apparent advice that plaintiff could not bring § 1981 claim while Title VII
charges were pending).
Both Grant and White dealt with plaintiffs whose claims could not have prevailed under
existing law. The court nevertheless refused to toll as explained in Grant:
[Section] 15-1-57 of Miss. Code Ann. only applies where a plaintiff is personally
prohibited or restrained from bringing suit. It speaks in terms of a person being
prohibited by law from bringing suit. The statute was enacted to protect those
who are disabled to sue at all, not a rule that says they will lose if they bring
suit. . . . There can be no tolling of the statute of limitations unless the person is
personally prohibited from bringing suit.
686 So. 2d at 1084 (emphasis added) (citing White, 601 So. 2d at 865 (holding that statute speaks
of “a ‘person’ prohibited by law”)). The context of these cases is obviously different than the
present case. But there are no Mississippi cases on point, and the Court may form an Erie guess
on analogous cases, analyses of related issues, and dicta from the Mississippi Supreme Court.
Hodges, 474 F.3d at 199.
The district court in Carnes v. Kentucky Central Life Insurance Co. applied Grant and
White to facts similar to those presented. No. 1:92CV312-S-D, 1998 WL 378389 (N.D. Miss.
Apr. 2, 1998). There, the plaintiffs named a Kentucky insurance company as the sole defendant.
The district court entered an order “staying all proceedings” pending adjudication of the claims
by the Kentucky Commissioner of Insurance. Id. at *1. The plaintiffs thereafter amended the
complaint with leave to add a new defendant, but the district court dismissed the action, holding
that section 15-1-57 did not apply:
The Mississippi statute at issue provides a tolling of the statute of limitations
when “any court in this state” prohibits by order the prosecuting of a cause. In
interpreting its “saving statute,” the Mississippi Supreme Court holds that
§ 15-1-57 only applies where a plaintiff is personally prohibited or restrained
from bringing suit. The plaintiff was not at any time prohibited by the Kentucky
court or the district court in bringing suit against [the newly added defendants].
The stay applied to the insurance company and not to any unnamed defendants.
Id. at *2 (internal citations omitted).
The stay in this case merely precluded discovery of issues unrelated to qualified
immunity. The stay had no impact on Plaintiffs’ ability to file a motion to amend or any other
motion they deemed necessary to facilitate the filing of a timely amended complaint. The stay
likewise did not prohibit informal investigation that might have identified some of the new
defendants. Along these lines, defendants are normally identified before suits are filed and
discovery is commenced. And Defendants’ response to Plaintiffs’ written discovery during the
stay identified all of the individuals Plaintiffs now wish to sue. Those disclosures occurred in
December 2010—seven months before the statute of limitations expired. The stay and
Defendants’ objections based on the stay certainly frustrated Plaintiffs’ efforts to identify these
individuals. But they ultimately obtained the information, and the Court cannot say that they
were prohibited to the extent necessary to trigger section 15-1-57.
Because tolling does not apply, the Court must consider Plaintiffs’ original argument that
the amended complaint would relate back under Rule 15.
Federal Rule of Civil Procedure 15(c)(1)(C) provides that an amendment relates back
the amendment changes the party or the naming of the party against whom a
claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) for serving the summons and complaint, the party to be brought in
(I) received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity.
(Emphasis added.) Defendants argue that Plaintiffs have failed to demonstrate a mistake, citing
Jacobsen v. Osborne, 133 F.3d 315, 321 (5th Cir. 1998). Although Jacobsen does not address
amendments to add previously unnamed defendants—as opposed to substituted John Doe
defendants—it contemplates the need to show notice and a mistake in pleading, neither of which
are apparent in this case.
The inquiry is not, however, complete. Defendants further argue that no relief is
available under Rule 15(c)(1)(a). That rule provides that “[a]n amendment to a pleading relates
back to the date of the original pleading when . . . the law that provides the applicable statute of
limitations allows relation back.” Fed. R. Civ. P. 15(c)(1)(a). The advisory committee notes
clarify this rule, explaining that “whatever may be the controlling body of limitations law, if that
law affords a more forgiving principle of relation back than the one provided in this rule, it
should be available to save the claim.” Fed. R. Civ. P. 15(c)(1)(a) advisory committee note. In
this case, state law provides the relevant limitations period for Plaintiffs’ § 1983 and state-law
claims. Wallace, 549 U.S. at 387. Thus, the Court must examine Rule 15 of the Mississippi
Rules of Civil Procedure.
Relation back of Plaintiffs’ state-law claims is governed by Mississippi Rule of Civil
Procedure 15(c). Generally, that Rule allows “[a]n amendment changing the party against whom
a claim is asserted” to relate back so long as (1) it arises from “the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading”; (2) within 120 days of
filing the complaint “the party to be brought in by amendment” received notice of the action
such that he “will not be prejudiced”; and (3) the party to be brought in “knew or should have
known that, but for a mistake concerning the identity of the proper party, the action would have
been brought against [him].” Miss. R. Civ. P. 15(c)(1)–(2). But the rule also provides a John
Doe defendant exception, explaining that “[a]n amendment pursuant to Rule 9(h) is not an
amendment changing the party against whom a claim is asserted and such amendment relates
back to the date of the original pleading.” Id. 15(c)(2). Under Rule 9(h):
When a party is ignorant of the name of an opposing party and so alleges in his
pleading, the opposing party may be designated by any name, and when his true
name is discovered the process and all pleadings and proceedings in the action
may be amended by substituting the true name and giving proper notice to the
Here, Plaintiffs’ state-court Complaint clearly states: “The specific identities of John
Does 1–10 are unknown to the Plaintiffs at this time, but will be identified, upon discovery of the
true identity of each defendant.” Notice of Removal  Ex. A, Pls.’ State Ct. Compl. ¶ 6. But
Defendants argue the proposed amended complaint fails to meet the standard for Rule 9(h)
because it does not actually “substitute” new defendants, it merely adds the named defendants
while retaining the John Does.
Defendants’ position finds support in Wilner v. White, where the Mississippi Supreme
In order for Rule 9(h) to apply, there must be a substitution of a true party name
for a fictitious one. However, this is not the case here. Wilner did name four
“John Doe” defendants in his original complaint, but did not substitute White’s
name for a “John Doe,” but simply added White’s name. The four “John Does”
remained as named defendants in the amended complaint. This is an improper
substitution of parties under 9(h) according to our decision in Doe v. Miss. Blood
Servs., Inc., 704 So. 2d 1016, 1018 (Miss. 1997).
929 So. 2d 315, 322 (Miss. 2006). Although a technical distinction, it does not appear that
Plaintiffs’ proposed amended complaint substitutes the new defendants for the original John
Does. Wilner therefore blocks their efforts to file it.
Because the matter does not toll and the proposed amended complaint would not relate
back, the Court finds that the proposed amended complaint is futile and that the Motion to
Amend should be denied.
For the reasons stated, Defendants’ Motion for Summary Judgment  is denied
without prejudice, Plaintiffs’ Rule 56(f) Motion  is granted, and Plaintiffs’ Motion to Amend
 is denied without prejudice. Because the case jumped off track at an early stage, and
because of the various procedural issues, the parties are instructed to set the matter for an inperson case-management conference at which point the Magistrate Judge will enter an amended
SO ORDERED AND ADJUDGED this the 11th day of August, 2011.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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