IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00179-COA

DAVIS DAVENPORT APPELLANT

v. HERTZ EQUIPMENT RENTAL CORPORATION APPELLEE DATE OF JUDGMENT: 01/24/2014 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: CARLOS EUGENE MOORE TANGALA LANIECE HOLLIS ATTORNEYS FOR APPELLEE: JAMES GRADY W YLY III KYLE STUART MORAN MICHAEL FRANKLIN HELD NATURE OF THE CASE: CIVIL - PERSONAL INJURY TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN FAVOR OF APPELLEE DISPOSITION: AFFIRMED – 03/01/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
C ONSOLIDATED WITH NO. 2014-CA-01021-COA DAVIS DAVENPORT APPELLANT

v. TEREX CORPORATION APPELLEE DATE OF JUDGMENT: 05/20/2014 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: CARLOS EUGENE MOORE TANGALA LANIECE HOLLISATTORNEYS FOR APPELLEE: MARK D. JICKA CAROLINE KUNZ IVANOV NATURE OF THE CASE: CIVIL - PERSONAL INJURY TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN FAVOR OF APPELLEE DISPOSITION: APPEAL DISMISSED – 03/01/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND ISHEE, JJ. IRVING, P.J., FOR THE COURT: ¶1. This is a consolidated appeal s t e mmi n g f r o m two separate, y e t related, sum m ary judgm ent orders rendered by the Circuit Court of Rankin County against Davis Davenport and in f avor of H ertz Equipm ent Rental Corporation and Terex Corporation, respectively

. The circuit court determ ined t hat Davenport had im properly substituted both Hertz a nd Terex pursuant t o Rule 9 ( h) of the Mississippi Rules of Civil Proced u r e a nd t hat the statute of
lim itations had run b ef

ore Davenport f

iled com plaints against t hem

. O n appeal, Davenport
asserts that the trial c ourt erred in (1 ) granting sum m ary j udgm ent in f avor o f Hertz and Terex, and (2) certif

y ing Hertz’s j udgm ent a s f inal pursuant to Rule 54(b) o f t he Mississippi Rules of Civil Procedure. ¶2. Finding no error, we af f irm the sum m ary jud g me n t g r a n t ed in f avor of Hertz but dism iss Davenport’s appeal of the sum m ary judgm ent granted in f avor of Terex, as it is not a f inal judgm ent and was not so certif ied pursuant to Rule 54(b).
FACTS ¶3. On May 26, 2009, Davenport sustained on-the-job injuries af ter a raised “m an buggy ”
2that he was in suddenly f ell to the ground, l anding in a trash bin. A lm ost three y e ars later,

on May 16, 2012, Davenport f iled a com

plaint in the Rankin County C ircuit Court against

t h e f ollowing parties: (1) JKS C onstruction I nc., a subcontractor of the general contr a c t o r Dy nam ic Services Inc.; (2) Dy nam ic Services Inc.; (3) RSC Equipm ent Rental Inc., which later becam e U nited Rentals; and (4) John Doe Corporations 1 a n d 2

. 1 A t the tim e of Davenport’s o riginal com plaint, he alleged that the John Doe Corporations were strictly liable f or negligently distributing and/or m anuf acturin g t h e m an buggy or its com ponent parts. On August 2, 2012, D avenport responded to United Rentals’ f irst set of interrogatories, w herein h e revealed that he was aware that H ertz h ad perf orm ed repair work

on the s ubject m an b uggy prior to the accident. On August 13, 2012, Davenport m oved to substitute Hertz f

or o ne of the John Doe Corporations. On March 11, 2013, t he trial court granted Davenport’s m otion to substitute, and on Mar c h 1 8, 2013, Davenport f iled an

am ended com

plaint, substituting Hertz f or John D oe C o rporation 2 and included theories of liability against Hertz that w ere not asserted in the original com plaint a g a inst the original def endants. ¶4. Following the f

iling of the am ended com plaint, Hertz f

i led a m otion t o dism iss the

com plaint under Rule 1 2(b)(6) o f t h e M ississippi Rules of Civil Procedure, alleging that
Hertz had been im

properly substituted and that the applicable statute of lim i tations had run

1 Davenport was em

ploy ed by Jaim ie Deano, who w as a subcontractor o f JKS. Deano was never party

to the litigation. 3on Davenport’s claim s against Hertz. Following a hearing , t h e t r i a l court denied Hertz’s

m otion t o d i s mi s s . H owever, t he trial court f ound t hat Davenport had im properly added additional theories of liability a nd struck those allegations. By separate order, t he trial court dism issed the am ended com plaint and ordered D avenport to f ile a new am ended com

plaint
in com pliance with its March 11, 2013 order that allowed th e s u b s t itution of Hertz. Davenport com

plied, and f

iled a second am e n ded com plaint on August 23, 2013. ¶5. On October 4, 2013, Hertz f iled a m o tion f

or sum m a r y judgm ent. In support of its

m otion, Hertz attached an af f idavit signed by Davenport’s brother, David D avenport, who was working at the construction site and was at t he scene of the a ccident when it occurred.
In h is af f idavit, David stated that the m an buggy his brother w as in was owned b y Hertz and

t h a t it had a visible Hertz label on it at the tim e of the accident. 2 Hertz also a t t a c h e d Davenport’s response t o United Rentals’ interrogatory num ber 13, d ated August 2 , 2012, wherein Davenport acknowledged that he knew Hertz had perf o rm e d work on the m an buggy two day s prior to the accident. ¶6. In res p o n se, Davenport f iled, inter alia, a m e m orandum in opposition to Hertz’s

m otion f or sum m ary judgm ent and his own af f idavit. In h is af

f idavit, Davenport stated that he was “unaware of the identity of all of the entities involved with repairing, m anuf acturing, and/or d istributing the m an b u ggy , wherein [ h e] was injured” and t hat he “did not learn of

2 Nothing in the record explains how David knew that the m an buggy was owned by Hertz. Perhaps he assum ed so because Hertz’s nam e was plainly visible on it. 4[ Hertz’s] identity until August of

2012.” 3 ¶7. Following the sum m ary - judgm ent hearing , t h e t rial court f ound that, p ursuant to Karpinsky v. A merican National I nsurance, 109 So. 3d 84 ( Miss. 2013), Hertz had m et its burden of showing that n o genuine issues of m aterial f a ct existed and that it was, theref ore, entitled to sum m ary judgm en t

. I n a r r i v ing at this decision, the t rial court determ ined that Davenport had f

ailed to show t hat he had m ade a reasonably diligent ef f ort to identif

y Hertz prior to the running of the statute of lim i tations and, consequently , the substitution of Hertz did not relate back to the original com plaint. 4 ¶8. W e now t

urn to the f

actual h istory regarding Terex. On October 30, 2 013, Davenport, pursuant to perm i ssion granted by an agreed order, f iled his f ourth am e nded c om

pl a i n t, substituting Terex f

or John Doe Corporation 1. In this am ended com plaint, Davenpor t

a l l eged that Terex was the m a nuf acturer of the m a n buggy

. On February 2 4, 2 0 1 4 , T e r e x

m ove d fo r s u

m m ary judgm ent, asserting that it was im properly substituted and t hat the statute of lim itations had run. Af ter a hearing on T erex’s m otion, the circuit c ourt granted sum m ary

3 Davenport he does not explain how o r f rom whom he obtained the inf o rm ation about Hertz having repaired the m an buggy two day s prior to the accident.

4 Following t he decision of the circuit c o urt, Davenport f iled a m otion f

o r reconsideration, and Hertz f iled a m otion f

or a Rule 54(b) f

inal judgm ent. The circuit court heard oral argum ents in support of and in opposition to both m otions on January 14, 2014. On January 24, 2014, the circuit c our t entered separate orders, one deny i ng the m otion f or recons i d e r a t i o n and t he other granting the m otion f or a R ule 54(b) f

inal judgm ent. The circuit court also dism issed all the claim s a g ainst Hertz with p rejudice. The court f ound that there was no just r eason f

or any delay in entering a f inal judgm ent with prejudice on Hertz’s behalf and explained that the dism issal wo u l d not af f ect Davenport’s claim s against the rem aining def

e ndants. 5judgm ent in Terex’s f avor, f inding that Davenport had f ailed to m ake a reasonably diligent inquiry to identif y the m anuf

acturer. ¶9. Davenport now appeals the circuit c o urt’s orders granting sum m ary judgm ent in f avor of Hertz and T erex and the c ircuit court’s certif ication of Hertz’s judgm ent pursuant to Rule 54(b).
S TANDARD OF REVIEW ¶10. W e review a circuit court’s grant of s u mma r y judgm ent de novo. O ’Neal Steel v. Millette, 797 So. 2d 869, 872 (¶8) (Miss. 2001) (citation om itted). Under Rule 56(c) of the Mississippi Rules of Civil Procedure, sum m ary judgm ent should be g ranted when the “pleadings, depositions, answers to interrogatories and adm issions on f ile, together with the af f idavits, if any , show that there is no g enuine issue a s to any m a terial f act a nd that th e

m oving party is entitled t o judgm ent as a m atter of law.” “The evidence m ust be v iewed in the light m ost f

avorable t o t h e p a rty against w hom t he m otion has been m ade.” Jacox v. Circus Circus Miss. Inc., 908 So. 2d 181, 184 (¶4) (Mis s . Ct. App. 2005) (citation and quotation m arks o m itted). As such, “[ t]he m ovant bears the burden of persuading the trial judge that

. . . (1) no genuine issue of m aterial f

act exists, and (2) on the basis of the f acts established, he is entitled to judgm ent as a m atter of law.” Palmer v. Biloxi R eg’l Med. Ctr. Inc., 564 So. 2d 1 346, 1355 ( Miss. 1990). However, once the m ovant m e ets h is burden, “the

non-m ovant m ay n o t rest o n the allegations in his pleadings, and m ay not rely on a ‘m ere scintilla’ of evidence to d ef eat sum m ary judgm ent.” Fruchter v. Lynch Oil Co., 522 So. 2d

6195, 198 (Miss. 1 988). “The p a r ty opposing t he m otion m ust r ebut [ the m ovant party ’s
argum ent], i f h e i s t o avoid entry of an adverse judgm ent, by bringing f orth probative evidence l egally suf

f i cient to m ake apparent the existence o f triable f act issues.” Smith v. First Federal Savings & Loan Ass’n of Grenada, 460 S o. 2d 7 86, 792 ( Miss. 1984). As such, “[ s]um m ary judgm ent is appropr i a t e w h e n t he non-m oving party has f ailed to m ake a showing suf

f icient to establish the existence of an elem ent essential to t he party ’ s case, and

on w hich that party will bear the burden of proof a t t r i a l

. ” Karpinsky, 109 So. 3d at 89 (¶11).
DISCUSSION
I. Hertz’s Summary Judgment ¶11. Here, Davenport argues that the circuit court erred when it d eterm ined that sum m ary judgm ent in Hertz’s f

avor was proper. In support o f his argum ent, he asserts that there are genuine issues of m a terial f act regarding whether the claim s against Hertz were barred by the

statute of l im itations. More specif ically , Davenport argues that, since Hertz was substituted pursuant to Rule 9(h) f

or one of the John Doe corporations l isted in the o riginal c om plaint, the am ended c om

plaint, bringing Hertz into the action, related back to the date of the f iling of t he original com

plaint pursuant to Rule 15(c)(2) of Mississippi Rules of Civil Procedure. Davenport a ss e r t s t hat this is so because he w as ignorant of Hertz’s i dentity when he f iled his original com

plaint. ¶12. Rule 9(h) provides:

7Fictitious Parties. W h en a party is ignorant of

the nam e of

an opposing party and so a l l e g e s i n his pleading, the opposing party m ay be designated by any nam e, and when his true nam e is discovered the process and all pleadings and proceedings in the action m ay be am ended by substituting the true nam e and giving proper notice to the opposing party

. In addition, Rule 15(c)(2) provides that “[ a]n a me n d m e n t p ursuant to Rule 9(h) is not an

am endm ent cha

n g i n g the party against whom a c laim is asserted, and such am e ndm ent relates back t o t he date of the original pleading.” W e note t hat D avenport’s n egligent-distribution claim against Hertz was subject to a three-y ear statute of lim itations. Miss. Code Ann. § 15-
1-49 (Rev. 2012). H owever, Davenport did not m ove t o substitute Hertz f or one of the John Doe corporations until af ter the three-y ear statute of lim i tations had expired. ¶13. Hertz argues that Rule 9(h) does not apply here because Davenport knew of Hertz’s identity when he f

iled h i s o riginal com

plaint, and, theref

ore, the a m endm ent cannot r e l a t e back pursuant to Rule 15(c)(2). H ertz also argues that, even if Davenport w a s ignorant of
Hertz’s identity at the tim e of the original f iling, Rule 9 (h) still does not apply because Davenport did not exercise due diligence in try ing to obtain such inf orm ation. ¶14. Davenport responds that a plaintif f who knows a f

ictitious d ef

endant’s true nam e m ay still b e ignorant so long as the p l aintif f does n o t k n o w t h e f

acts that give h im a cause of action against the f

ictitious p arty

. Davenport cites W omble v
. S

inging River Hospital, 618
So. 2d 1252 (Miss. 1 993) (overruled on other grounds), where the M ississipp i S u p r em e Court established that [ i]t is a prin c i p l e o f g eneral application

. . . that i gnorance o f the opposing party f o r f i ctitious party practice extends bey ond m ere lac k o f knowledge of
8the opposing party ’ s nam e. E v e n if t he plaintif f knows the true nam e of the person, he is still i gnorant of his nam e if he lacks knowledge of the f acts giving him

a cause of

action against that person. Id. at 1 267. However, we note that our s u prem e “ [ c ]our t h a s a l s o acknowledged a reasonable[ -]diligence t e st [ to be applied] when substituting unknown parties pursuant to [ Rule] 9(h).” B edford Health Props. LLC v. Estate of W illiams e x rel. Hawthorne, 946 So. 2d 335, 342 (¶13) (Miss. 2006). ¶15. At the sum m a ry -judgm ent hearing addre s s i n g Hertz’s m o tion, Davenport f ailed to specif y how he learned o f Hertz’s involvem ent w ith t h e c a s e . Rather than inf orm ing the

court o f when and f

rom whom Davenport had obtained the inf orm ation provided within his discovery response, Davenport’s counsel s im ply asserted t hat he im m ediately sought leave of t he court t o substitute the f ictitious party with Hertz af ter r eceiving Davenport’s response to United Rentals’ interrogatory num ber 13 in August 2012. ¶16. The r ecord ref

lects t hat in his original com plaint, in the venue s ection, Davenport

s t a t e d t h a t “Def endant Hertz’s registered a gent [ w as] located in Rankin Co u n t y , M i s s i s s i p p i

. ” Davenport argues that this statem ent regar d i n g Hertz was due t o a ty pographical error because his counsel initially thought that Hertz had distributed the m an buggy to JKS. W e f i n d i t i n e xplicable how the i nclusion of Hertz as a def e ndant in t he v enue s ection of th e original com

plaint c ould have been a ty p ographic a l e r r o r if Davenport’s counsel initially thought that the m an buggy had b een distributed by Hertz. S ince D avenport nam ed Hertz in the venue section of his c o mp l a i n t b ut not in the caption, it seem s m ore logical that the

9f

ailure to include Hertz as one of the nam e d p arties in t he caption m ay h ave been an oversight, b u t that i s not the argum ent Davenport m akes. In any event, it is not s ubject to legitim ate debate that Davenport’s explanation f o r why Hertz had been nam ed in the venue section of the o riginal com plaint—that his counsel initially thought that Hertz had d istributed the m an buggy

—proves that Davenport was aware of Hertz’s identity as t hat t erm is def ined
in W omble , because at the tim e that Davenport f i led his c om

plaint, he knew of Hertz’s role as a distributor of

the m an buggy

. ¶17. Davenport also a rgues that knowing Hertz’s nam e was not enough because there are several Hertz entities. W e accept D avenport’ s a r gum ent that t here are several entities bearing the Hertz nam e, but that does not e xcuse his f ailure to nam e Hertz as a party in his

o r i ginal com

plaint. That could have been sorted out during the discovery proce s s . A s previously m entioned, according to David’s af f idavit, the m an buggy contained a “visible”
Hertz label. I t is well e stablished in o ur jurisprudence that a plaintif f cannot use Rule 9(h)

to “sleep on [ h is] rights.” Doe v. Miss. B lood Servs. Inc., 704 So. 2d 1 016, 1 019 (¶13) (Miss. 1997). T heref

ore, Davenport’s argum e nt that he d i d not know Hertz’s legal nam e is unpersuasive. He possessed enough inf orm ation to determ ine the legal entity that owned the

m an buggy bearing the Hertz label. Theref ore, there is no genuine issue of m aterial f act that Davenport was not ignorant of Hertz’s identity

. ¶18. Even accepting Davenport’s argum ent that at the f iling o f his original c om

plaint he

was ign o r a n t o f Hertz’s i dentity and involvem ent with the m a n buggy that injured him , he

1 0is still required t o show that he m ade a reasonably diligent ef f ort to learn the identity of the John Does nam ed in h is com plaint bef ore the claim s asserted in his am ended com plaint could relate b ack to the tim e of the f iling of his original com

plaint. And the “ r easonably diligent inquiry i nto the identity of the unknown def e ndant [ m

ust be m ade] within the lim itation period” in order f

or a substitution under Rule 9(h) to allow a claim to relate back t o the date of the original pleading. S antangelo v. Green , 9 20 So. 2d 521 , 525 (¶16) (Miss. Ct. App. 2006) (internal citations and quotations m arks om itted). Hertz argues that Davenport f ailed to show that he m ade such ef f orts. W e agree. ¶19. Our suprem e court has established that [ r]e a s o n able diligence is a standard only f o r determ ining the ef

f orts m ade to discove r t h e t r u e identity of a nam ed f ictitious party under Rule 9(h). The relat i o n [ -]back p rivilege p rovided f or f ictitious parties under Rule 15(c)(2) requires t he plaintif

f to actually exercise a reasonably diligent inquiry i nto the identity of the f ictitious party

. Bedford, 946 So. 2d a t 342 (¶13) (internal citations and quotation m arks om itted). W e note that in Davenport’s response to Hertz’s m otion to d ism iss, he stated that “Plaintif f knew of Def endant Hertz ’ s n a me in general at the tim e the [ o]riginal [ c]om plaint was f

iled.” However, Davenport argues t hat he did n o t k n o w the identity o f t he s pecif ic Hertz entity involved with the m an b uggy and that prior to t he expiration of the statute of lim itations, he conducted reasonable inquiries and investigation s into what entities were involved in the subject accident. He also argues that he received conf lictin g a n d i ncom

plete i nf orm ation, causing a lack of s uf

f icient inf orm ation to initially i dentif y all of the real parties in interest.

1 1Davenport f urther argues that he did not have access to c o ntractual agreem ents between the pertinent parties, nor the m e a n s t o r eadily obtain the true identities of the two John Doe Corporations. ¶20. Hertz cites D oe , Bedford, and S antangelo in s upport of its argum ent that Davenport f ailed to m ake a reason ably diligent ef f ort t o e stablish the identity of the f ictitious parties. On the other hand, Davenport attem pts to distinguish those cases. ¶21. In Doe, t he plai n t i f f f i l ed a wrongf

ul-death a c tion a g ainst several def endants and
f ictitious parties alm ost three y ears af ter h er m other’s de a t h , asserting that t he negligent blood t r a n s f

u s i o n given to her m other had inf ected her m other with HIV and, ultim ately , caused her death. Doe, 704 So. 2d at 1017 (¶4). One of the nam ed def endants r em oved the

case to f ederal court. Id. a t (¶5). W hile there, t he plaintif f m oved t o dism iss the def endant that had rem oved the case t o f e deral court and asked f

or perm ission to n am e an additional def endant. Id

. Apparently , the plaintif f ’s m o tion was granted and the case rem anded back

to the circuit court. Id. On rem and to the circuit court, the newly adde d d e f e n d a n t f i l e d a

m otion t o dism i ss, a nd the circuit court granted the m otion. Id. The record ref l ected that the plaintif f had m ade telephonic inquiries f i v e d a y s prior to the running of the statute of
lim itations and only obtained lim ited inf orm ation bef

ore the lim itations period expired. Id.

at (¶3). The suprem e court f ound that Rule 9(h) did not apply , as the plaintif f had f ailed to exercise reasonable diligence in ascertaining the def en d a n t ’s true identity prior t o the running

o f the statute of lim itations. Id. at 1019 (¶13). The suprem e court reasone d t h a t t h e

1 2plaintif

f ’s i n q u i r y w as not diligent and that Rule 9 (h) does not p rovide an avenue f or plaintif f s to “sleep” on their rights. Id. ¶22. I n B e d

ford, the Mississippi Suprem e Court concluded that with a reasonab l y diligent inquiry , the pl a i n tif f c ould have discovered the proper nam e of the n ursing hom e since she visited the hom e several tim es i n a m onth, the nursing hom e was across the street f rom the church the plaintif f a ttended, and the p laintif f ' s deposition testim ony revealed that she knew the proper nam e. Bedford, 946 So. 2d a t 343 (¶17). In S antangelo, this Court held that t he plaintif

f was not reasonably diligent because the new d ef end a n t w a s her treating phy sician, and her m edical records would h ave revealed his i d e n t i t y . Santangelo , 920 So. 2d at 528 (¶21). As such, this Court ignored that the m edical records were volum inous and held by third parties and f ound that the plaintif

f w as not reasonably diligent because thos e records, though volum inous, c ontained inf orm ation regarding t he ident i t y o f t he f ictitious def endant. Id. at 526-27 (¶¶20-21). ¶23. Davenport a rgues that Doe, Bedford , a n d S antangelo are distinguishable f rom this

case inasm

uch as in each of t hose cases, unlike here, the plaintif f f a iled to m ake a reasonably diligent ef

f ort to ascertain the identity of the correct party

. As an exam ple, he points out that
in Doe t he plaintif

f w aited nearly seven y ears to bring a c a u s e o f a c tion against the new def endants, had access to m e dical r ecords that w ould have revealed the potential def endants’ identities, and never substituted the f ictitious nam es with the a lleged real parties in interest. ¶24. In response, Her t z argues that the af orem entioned cases actually support its case

1 3because they s h ow the r epercussions of a p laintif f not m aking any substantive and e xhaustive inquiries to ascertain the true identity of a negligent party

prior to the statute of lim itations running. Hertz contends that D avenport h ad to know Hertz’s proper nam e in order to determ ine the proper registered agent m entioned in the v e n u e section of his original

com plaint. Citing this Court’s d e c i s i on in Santangelo , Hertz also contends that Davenport’s assertion t hat there was a barrage of inf o rm a tion when he tried to investigate the case is unsubstantiated. ¶25. W e agree with Hertz’s v e r s i o n o f h o w the above cases relate t o t he m atter at hand. Unlike the plaintif

f in Doe, Davenport has only of f ered general allegat i o n s o f his investigation and diligent ef f orts to ascertain the identity of the f icti t i o u s d e f

e n dant. In addition, l ike the plaintif

f i n Bedford, Davenport adm itted that he knew Hertz’s proper nam e
at the tim e of the alleged incident and when he f iled the original com

plaint. As stated, we f ind that Davenport knew of Hertz’s identity and involvem ent with the m an buggy prior to his f iling his o riginal com

p l ai nt, but assum ing that we are incorrect on that point, we also
f ind that had D avenport exercised reasonable diligence, he could have ascertained Hertz’s
proper identity prior to f

iling h is original co mp laint. In sum m ary , we f ind that Davenport f ailed to prove that he lacked knowledge of Hertz’s i dentity prior to the f iling of his original

com plaint, bu t e v e n i f he did, he f ailed the reasonable-diligence requirem ent to ascertain
Hertz’s identity

. Theref

ore, we af f irm the circuit c o urt’s grant of sum m ary judgm ent in f avor of Hertz, a s the statute of lim itations had r u n when Davenport substituted Hertz f or one of

1 4the John Doe corporations pursuant to Rule 9(h) without the benef it of t h e r elating-back provision of

Rule 15(c)(2).
II. Terex’s Summary Judgment ¶26. Davenport also argues t h a t the circuit court erred in granting sum m ary judgm ent in
f avor o f Terex. H owever, we f ind t hat t his m a tter is im properly bef

ore this Court. The

su m m a r y - j u d g m ent order f

rom which Davenport appeals dism isses T erex but f ails to dism iss

t h e rem a ining def

endants. This case involved m ultiple parties and claim s i n th e c i r c u i t
court. 5 Rule 54(b) provides, in pertinent part:
W h en m ore than one claim f or relief is presented in an action

. . . or when m ultiple parties a re i nvolved, the court m a y direct the entry of a f inal j udgm ent as to one or m ore b ut f

e wer than all of the claim s o r parti e s o n l y u p o n a n expressed determ ination that there is n o just reason f or delay and upon an ex p r e s s e d d irection f

or the e ntry of the judgm ent. In the absence of such determ ination and direction, a ny order or other f orm of d ecision, however designated[ ,] which adjudicates f ewer than a ll of the claim s or the rights and liabilities of

f e wer than all the parties shall not term inate the a ction as to any of the claim s or parties and the order or other f orm of decision is subje c t to revision at any tim e bef

ore t he entry of judgm ent adjudicating all the claim s and the rights and liabilities of all the parties. The order granting sum m ary judgm ent in f avor of T e rex did not include a Rule 54(b)

5 W hen Davenport appealed f rom the sum m ary j udgm ent in f avor of T erex , t h e f ollowing actions had occurred i n h is m ulti-party lawsuit: (1) O n M arch 2 5, 2013, Davenport had received a def

ault judgm ent against Dy

n am ic Services, as to liability only , with the issue of dam a g es to b e reserved f or a subsequent hearing to d eterm ine the am ount of dam ages; (2) On J uly 3, 2013, Davenport, by court order, had dism i ssed w ith prejudice his claim s against D e f e ndant United R entals; and (3) On October 28, 2013, the circuit court h ad grante d sum m ary judgm ent in f

avor of Hertz and certif

ied the jud g me n t pursuant to Rule 54(b). However, nothing in t he record shows that JKS had been d ism issed, a lthough it had f iled a m otion f or sum m ary

judgm ent. 1 5certif

i cation. Theref

ore, any appeal theref

rom w ould be interlocutory , requiring perm ission
f r o m t h e Mississippi Suprem e Court, which was not o btained. Consequently , we m ust dism iss the Terex appeal f or lack of jurisdiction.
III. Rule 54(

b) Final Judgment ¶27. Davenport also argues t hat the circuit court erred i n granting Rule 54(b) c ertif ication of the Hertz sum m ary judgm ent. W e apply an abuse-of -discretion standard w hen reviewing

a Rule 5 4(b) f

inal j udgm ent

. Laird v. ERA Bayshore Realty, 841 So. 2d 1 78, 180 (¶7) (Miss.
Ct. App. 2003). “W here a sum m ary judgm ent dism isses som e o f the parties to a lawsuit, but

not a l l of the parties, Rule 54(b)

. . . governs.” Fairley v
. George Cty., 8 00 So. 2d 1159,
1161 (¶4) (Miss. 2001). “ A 5 4 (b) certif icate should be reserved f or a case where a delay in the appeal m ight result in prejudice to a party .” Cox v
. H oward, W eil, Labouisse, Friedrichs Inc., 512 So. 2d 897, 900 (Miss. 1987). ¶28. The c ore of Davenport’s argum ent here is that b ecause the circuit court had not ruled

on his pending m otion f

or reconsideration, it erred i n c ertif y ing Hertz’s sum m ary j udgm ent

as a Rule 54(b) j u d g m e nt. In support of his a r gum ent, Davenport contends that Hertz had
f ailed to provide any

f a cts or evidence dem onstrating a n y prejudice t hat it would suf f er by

rem aining as a party in the case until his m otion f or reconsideration w as d ecided. Davenport also insists t hat f

inal judgm ents under Rule 54(b) are rare and that the courts are to consider the f ollowing f

actors when determ ining whether a f inal judgm e nt s h o u l d b e issued: “[ 1]
W h ether the claim s under review [ are] separable f r om t he o thers rem aining t o be adjudicated

1 6and [ 2] whether the nature of the claim s already d eterm ined was such t hat n o appellate court

would have to decide t he sam e issues m ore than once even if there w e r e subsequent appeals.”
Reeves C onstr. & Supply Inc. v. Corrigan, 24 So. 3d 1077, 1083 (¶16) (Miss. Ct. App. 2010) (internal citations and quotations m arks om itte d )

. Davenport also contends that Hertz’s
argum ent that his claim against Hertz is in no way related to the other c l aim s in this m atter is e rroneous. As such, Davenport postulates that, but f o r H ertz’s involvem ent, the incident would n ot have o c curred, and Davenport would not have had claim s against any of the other parties. ¶29. In response, Hertz argues tha t t h e R u l e 54(b) f inal judgm ent was proper based on signif icant anticipated d elay and t he distinct n ature of Davenport’s rem aining claim s against other def endants. H ertz contends that it w ould be unf a i r f o r i t to be f

orced to w ait f

or a f inal judgm ent. Hertz a lso argues that it is not relevant that the claim s against the other def endants

m ay have risen o ut of com m on f a cts and that t he m easure is whether t he claim s against the def endants are distinct in n ature. Ind. Luberman’s Mut. Ins. v
. Curtis Mathes Mfg., 456 So. 2d 750, 752-53 (Miss. 1984). ¶30. W e a gree w ith Hertz and f ind that D aven port’s m otion f or reconsideration did not prevent the court f

rom entering a f

inal j udgm ent in f

avor of Hertz. Davenport has f ailed to of f er any a uthority f or his argum ent that a court errs b y granting a m otion f o r entry of a R

ule 54(b) judgm ent while an o p posing m otion f or r econsideration is still p ending. Moreover, the record ref lects t hat the circuit court denied Davenport’s m otion f or r e c o n s ideration on the

1 7sam e day that it granted H ertz’s Rule 54(b) f inal judgm ent. Theref

ore, we f ind t hat the circuit

court d id not a

buse i ts discr e t i o n i n granting the 54(b) f inal judgm ent a n d dism issing the claim s against Hertz. This issue is without m erit.
CONCLUSION ¶31. As to Davenport’s claim s against Hertz, we f ind that sum m ary judgm ent was properly granted i n f

a v o r o f Hertz, as the statute of lim i tations had run, and Hertz was not properly substituted pursuant to Rule 9(h), but even if it was, the relating-back provision of R ule 15(c)(2) did no t a p p l y b ecause D avenport f ailed to e stablish that he utilized reasonable diligence in an ef

f ort to t im e ly identif

y Hertz a s a f

i ctitious party

. Also, we cannot f ind that the circuit c ourt abused its discretion in gran t i n g a Rule 5 4(b) certif ication of Hertz’s

sum m ary judgm ent. Consequently , we af f irm the j udgm ent o f the Circuit C ourt of R ankin County granting sum m ary judgm ent in f avor of Hertz. However, we dism i ss the appeal of the

sum m ary judgm ent granted to Terex as not a f i nal, appealable judgm ent. ¶32. THE JUDGMENT OF T HE CIRCUIT COURT OF RANKI N COUNTY I S AFFIRMED AS TO HERTZ , AND THE APPEAL O F THE J UDGMENT IN FAVOR OF TER E X I S D ISMISSED. ALL COSTS OF THIS APPEAL A RE ASSESSED TO THE APPELLANT. LEE, C.J., GRIFFIS, P.J., BARNES, I SHEE, C ARLTON, W ILSON AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS I N PART A N D DISSENTS IN PART WITHOUT S E P A R A TE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.

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