United States District Court, N.D. Alabama, Southern Division
JILLIAN M. CARTER, Plaintiff,
WALGREENS SPECIALTY PHARMACY LLC, Defendant.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant's Motion to
Dismiss (Doc. # 9). Defendant contends that this action is
due to be dismissed because the statute of limitations
expired prior to the commencement of this action.
Defendant's motion is fully briefed. (Docs. # 9, 11, 13).
The court held oral argument on Defendant's motion on May
10, 2017. For the reasons stated below, Defendant's
motion is due to be denied.
action has struggled to get off the ground. Plaintiff's
accident occurred on January 17, 2015 at a Walgreen's
store. (Doc. # 1 at ¶ 4). Plaintiff's
Complaint was filed on January 3, 2017, and was designated
Case No. 2:17-cv-00003-RDP. (See 2:17-cv-00070-RDP
docket entry, 01/03/2017). However, Plaintiff did not pay the
filing fee associated with this action. Instead, on January
16, 2017, Plaintiff again filed her Complaint with the Clerk
of the Court, at which point it was designated as a separate
action, No. 2:17-cv-00070-SGC. (See
2:17-cv-00070-SGC, Doc. # 1). Plaintiff paid a filing fee
contemporaneously with the second complaint. (Id.,
docket entry, 01/17/2017). On January 20, 2017, Plaintiff
filed a request for service by certified mail in Case
2:17-cv-00070-SGC. (Id., Doc. # 3). However, on
January 24, 2017, the court entered an order directing the
Clerk of the Court to apply the filing fee from the second
action to this, earlier-filed action, and directing the clerk
to close the second action (2:17-cv-00070-SGC). (Doc. # 2).
Thereafter, Plaintiff filed a request for service by
certified mail in this action, on February 20, 2017. (Doc. #
3). And a summons was issued on March 13, 2017. (Doc. # 4).
has offered an explanation regarding the various delays in
this action. She contends that she was unable to submit the
filing fee in this action due to technical difficulties
related to counsel's PACER account. (Doc. # 11 at p.
2). While Plaintiff filed a request for service by certified
mail in Case No. 2:17-cv-00070-SGC on January 20, 2017, her
counsel represents that counsel received a voicemail from a
representative of the court instructing Plaintiff to
“hold off on service” until the court determined
how to proceed with the identical pending cases.
(Id. at p. 3). Following the court's January 24,
2017 order, Plaintiff represents that counsel called the
court on January 26, 2017 to determine if she was required to
file a new request for service by certified mail.
(Id.). Plaintiff contends that a representative of
the court told her to wait “a few days” before
filing a request for service, because “the
system” was not showing that the case was active at
that time. (Id.).
has moved to dismiss this action on statute of limitations
grounds. After careful review, and as an initial matter, the
court concludes that Defendant's attempt to defeat this
action on statute of limitations grounds at this Rule 12(b)
stage is premature. Indeed, a “Rule 12(b)(6) dismissal
on statute of limitations grounds is appropriate only if it
is apparent from the face of the complaint that the claim is
time-barred.” Brotherhood of Locomotive
Engineers and Trainmen General Committee of Adjustment
CSX Transp. Northern Lines v. CSX Transp., Inc., 522
F.3d 1190, 1194 (11th Cir. 2008); McMillian v. AMC Mortg.
Services, Inc., 560 F.Supp.2d 1210, 1213 (S.D. Ala.2008)
(“A statute of limitations defense is generally not
appropriate for evaluation on a Motion to Dismiss filed
pursuant [to] Rule 12(b)(6), Fed.R.Civ.P.”). Here,
Plaintiff's complaint does not demonstrate on its face
any basis for dismissal on statute of limitations grounds.
The guiding inquiry here is inherently fact sensitive, and to
the extent that Defendant seeks a determination based on
facts outside of the complaint, Defendant's statute of
limitations argument is best reserved for a motion for
summary judgment. See La Grasta v. First Union
Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004)
(“A statute of limitations bar is an affirmative
defense and ... plaintiffs are not required to negate an
affirmative defense in their complaint.”) (citation and
internal marks omitted)
even if Defendant's statute of limitations argument were
properly presented in its motion to dismiss, the argument is
unpersuasive. In an action brought in federal court under
diversity jurisdiction, “[e]xcept in matters governed
by the Federal Constitution or by Acts of Congress, the law
to be applied in any [diversity] case is the law of the
State.” Erie R. Co. v. Tompkins, 304 U.S. 64,
78 (1938). And, where there is no Federal Rule which covers
the point in dispute, Erie commands the enforcement
of state law. Hanna v. Plumer, 380 U.S. 460, 470
(1965). Federal Rule of Civil Procedure 3 governs the date
from which various timing requirements of the Federal Rules
begin to run. Fed.R.Civ.P. 3 (“A civil action is
commenced by filing a complaint with the court.”).
However, Rule 3 “does not affect state statutes of
limitations.” Walker v. Armco Steel Corp., 446
U.S. 740, 750-51 (1980) (“There is no indication that
[Rule 3] was intended to toll a state statute of limitations,
much less that it purported to displace state tolling rules
for purposes of state statutes of limitations.”).
Accordingly, Alabama state law controls the determination of
when an action commences for purposes of satisfying the
statute of limitations.
Alabama, “[t]he filing of a complaint commences an
action for purposes of the Alabama Rules of Civil Procedure
but does not ‘commence' an action for
purposes of satisfying the statute of limitations.”
Precise v. Edwards, 60 So.3d 228, 230-31 (Ala. 2010)
(internal citations omitted) (emphasis in original). Instead,
an action is commenced within the statute of limitations only
if the complaint is filed and there also exists
“a bona fide intent to have it immediately
served.” Id. at 231 (quoting Dunnam v.
Ovbiagele, 814 So.2d 232, 237-38 (Ala. 2001)); see
also Maxwell v. Spring Hill Coll., 628 So.2d 335, 336
(Ala. 1993) (“This Court has held that the filing of a
complaint, standing alone, does not commence an action for
statute of limitations purposes.”) (internal quotations
omitted). Whether “a bona fide intent existed at the
time the complaint was filed must be determined by an
objective standard.” ENT Assocs. of
Alabama, P.A. v. Hoke, 2016 WL 4585742, at *5 (Ala.
Sept. 2, 2016). And:
[a]lthough delay may not be evidence, in and of itself, of a
lack of a bona fide intent to immediately serve the complaint
at the time it is filed, delay in conjunction with the
absence of evidence of any steps taken by the plaintiff to
effectuate service at the time of filing the complaint is
evidence of a lack of a bona fide intent to immediately serve
Id. at *6.
clear that, under Alabama law, no bona fide intent to
immediately serve the complaint exists where the plaintiff,
upon filing of the complaint, expressly orders the clerk to
withhold service of process. Freer v. Potter, 413
So.2d 1079, 1081 (Ala. 1982). Moreover, “delay in
conjunction with the absence of evidence of any steps taken
by the plaintiff to effectuate service at the time of filing
the complaint” may provide evidence of a lack of a bona
fide intent to immediately serve the complaint. ENT
Assocs. of Alabama, P.A. v. Hoke, 2016 WL 4585742, at
*6. However, when the plaintiff takes steps necessary to
accomplish service upon filing of the complaint, there exists
a bona fide intent to immediately serve the complaint. Ex
parte E. Alabama Mental Health-Mental Retardation Bd,
Inc., 939 So.2d at 4-5.
black letter law demonstrates the benefit of assessing a
plaintiffs intent to serve the complaint on a motion for
summary judgment, rather than a motion to dismiss. However,
as the court expressed during the hearing on this matter, the
record before the court on Defendant's motion to dismiss