United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the court on Defendant the Water Works
Board of the City of Birmingham's “Motion to
Dismiss.” (Doc. 9). Plaintiff Scherer alleges various
state law claims against the Board arising out of a
delinquent account that the Board deemed to belong to Ms.
Scherer, which it ultimately turned over for collections. The
Board has filed this motion to dismiss on the sole basis that
Alabama's statute of limitations bars Ms. Scherer's
claims against it. As explained below, the court concludes
that the Board's motion to dismiss is due to be DENIED.
alleged in the Complaint, Plaintiff Kaori Scherer purchased a
home in Vestavia, Alabama in June 2014. Upon purchasing the
home, Ms. Scherer opened an account for water and sewer
services for the property with the Defendant Birmingham Water
Works Board. That account was the first and only account Ms.
Scherer opened with the Board for that particular property.
She always paid her monthly bill and never owed any past due
amount on the account.
sometime after purchasing the home, Defendant Credit Bureau
Systems, Inc. began collection activities against Ms. Scherer
for a water and sewer services account that Ms. Scherer
contends did not belong to her. The debt was for a past-due
amount of $46.00 on a second account on the same property,
which Ms. Scherer alleges the Board incorrectly attributed to
her name. The collection activities included reporting the
alleged debt on Ms. Scherer's credit file with Defendants
Equifax and Experian Information Services. The Board contends
that this second account became delinquent in April
2014-approximately two months before Ms. Scherer purchased
the property or opened any account pertaining to that
Scherer made various attempts to dispute the alleged
delinquency with the Board, CBS, and Defendants Equifax and
Experian Information Services. The last dispute in which
Plaintiff asked Equifax for the removal of the alleged debt
was April 5, 2017. Despite Ms. Scherer's efforts, the
Board and Credit Bureau Systems did not cease their attempts
to collect on the debt.
to convince the Board that the second account did not belong
to her, or to cease its collections efforts, Ms. Scherer
filed her claims against the Board and the other Defendants
on January 24, 2018. Her claims against the Board include
negligent, reckless, and wanton debt collection activities;
and negligent, reckless, and wanton training and supervision.
She also asserts the Board is vicariously liable for the
improper collection activities of Defendant CBS.
STANDARD OF REVIEW
12(b)(6) motion to dismiss attacks the legal sufficiency of
the complaint. Generally, the Federal Rules of Civil
Procedure require only that the complaint provide
“‘a short and plain statement of the claim'
that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957) (quoting Fed.R.Civ.P. 8(a)). A plaintiff must provide
the grounds of her entitlement, but Rule 8 generally does not
require “detailed factual allegations.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley, 355 U.S. at 47). It does, however,
“demand[ ] more than an unadorned,
Ashcroft v. Iqbal 556 U.S. 662, 678 (2009).
Pleadings that contain nothing more than “a formulaic
recitation of the elements of a cause of action” do not
meet Rule 8 standards nor do pleadings suffice that are based
merely upon “labels or conclusions” or
“naked assertions” without supporting factual
allegations. Twombly, 550 U.S. at 555, 557.
Supreme Court explained that “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting and explaining its decision in
Twombly, 550 U.S. at 570). To be plausible on its
face, the claim must contain enough facts that “allow[
] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Although “[t]he
plausibility standard is not akin to a ‘probability
requirement, '” the complaint must demonstrate
“more than a sheer possibility that a defendant has
acted unlawfully.” Id.
sole issue before the court is whether Alabama's statute
of limitations bars Ms. Scherer's claims against the
Board. The court first recognizes that “[a] statute of
limitations bar is an affirmative defense, and . . .
plaintiffs are not required to negate an affirmative defense
in their complaint.” La Grasta v. First Union
Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004)
(internal quotation marks omitted). Also, “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.” Id.
(internal quotation marks omitted). Therefore, a statute of
limitations defense is “generally not appropriate for
evaluation on a motion to dismiss pursuant to Rule
12(b)(6.)” McMillian v. AMC Mortg. Servs.,
Inc., 560 F.Supp. 1210, 1213 (S.D. Ala. 2008).
this court sits in diversity, Alabama substantive law,
including the statute of limitations, governs these
proceedings. See Mississippi Valley Title Ins. Co. v.
Thompson, 802 F.3d 1248, 1251 n.2 (11th Cir. 2015).
Alabama law provides a two-year statute of limitations for
claims of negligence, wantonness, and vicarious liability.
Ala. Code § 6-2-38(1), (n). The limitations period
begins at the time the action “accrues.”
Booker v. United Am. Ins. Co., 700 So.2d 1333, 1339
Alabama, the statute of limitations commences “on the
date the first legal injury occurs, but not necessarily from
the date of the act causing the injury.” Smith v.
Medtronic, Inc., 607 So.2d 156, 159 (Ala. 1992) (citing
Brotherhood of Locomotive Firemen & Enginemen v.
Hammett, 140 So.2d 832 (1962)). Therefore, a defendant
may take a particular action that eventually ...