United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE.
matter comes before the court on Defendant Higbee SALVA,
L.P.'s (“Higbee”) motion to dismiss Plaintiff
Patsy Johnson's amended complaint. (Doc. 5). This court
has diversity jurisdiction pursuant to 28 USC § 1332.
Because Higbee's motion relies principally on evidence
contained in the record, the court entered an order
converting Higbee's motion to dismiss to a motion for
summary judgment. (Doc. 9). The motion has been fully briefed
and the issues are ripe for review. For the reasons explained
below, the court finds that Ms. Johnson's claims against
Higbee do not relate back to her initial complaint and are
barred by the applicable statute of limitations. Accordingly,
the court WILL GRANT Higbee's motion for
summary judgment and WILL DISMISS Ms.
Johnson's claims against Higbee WITH
27, 2016, Ms. Johnson allegedly tripped over a rippled area
of carpeting at the Dillard's department store in Oxford,
Alabama, causing her to fall and injure herself. (Doc. 1-1 at
2). Following the incident, Ms. Johnson retained counsel and
prepared to file suit against Dillard's, Inc.
(“Dillard's”) for failing to properly
maintain the carpeted area that allegedly caused her to fall.
(Doc. 1-2 at 2). Ms. Johnson's attorney learned of the
existence of a relationship between Higbee and Dillard's
after researching earlier litigation involving the parties as
codefendants and discovering they shared a corporate address.
(Doc. 7 at 2). Almost a year after the accident, Ms.
Johnson's attorney sent a letter addressed to both
Dillard's and Higbee requesting information regarding
their respective liability insurance policies. (Doc. 1-2 at
2). Nine months later, Plaintiff's counsel sent a second
letter offering to settle Ms. Johnson's claims.
(Id. at 3-5). The letter included a draft complaint
that listed Higbee as a defendant, (id. at 8), which
Ms. Johnson indicated she would file if it “[was]
necessary to pursue litigation, ” (id. at 5).
Johnson filed this action in the Circuit Court of Calhoun
County, Alabama, the day before the statute of limitations
ran on her claims. (Doc. 1-1 at 3). Ms. Johnson's initial
complaint named Dillard's as a party defendant and
included four fictitious defendants. (Id.). After
the statute of limitations ran, Ms. Johnson amended her
complaint to substitute Higbee for “Fictitious Party
No. 1” which the pleading described as “any
individual or entity who or which owned or operated the
building occupied by the Dillard's store in which
Plaintiff tripped and fell.” (Doc. 1-1 at 15). In all
other respects, the amended complaint is identical to the
complaint included in Ms. Johnson's March 27, 2018
letter. Defendants subsequently removed this case to federal
court based on diversity jurisdiction. (Doc. 1 at 2).
motion, Higbee contends it is entitled to summary judgment
because the applicable statute of limitations expired prior
to Ms. Johnson amending her complaint. (Doc. 5 at 3). Summary
judgment is appropriate based on a statute of limitations
defense if both the limitations period has expired and no
genuine issues of material fact exist regarding when the
statute began to run. See McCaleb v. A.O. Smith
Corp., 200 F.3d 747, 750 (11th Cir. 2000). Under Alabama
law, the statute of limitations governing Ms. Johnson's
negligence and wantonness claims is two-years. Ala. Code
1975, § 6-2-38. It is undisputed that Ms. Johnson
sustained her injuries on July 27, 2016. (Doc. 1 at 5). And,
Ms. Johnson acknowledges that the statute of limitations ran
on July 28, 2018. (Doc. 7 at 5).
the statute ran, Ms. Johnson amended her complaint,
substituting Higbee for a fictitiously named defendant. (Doc.
1-1 at 15). Because Ms. Johnson added Higbee as a defendant
after the applicable statute of limitations expired, the
claims would be generally time-barred. See Henson v.
Celtic Life Ins. Co., 621 So.2d 1268, 1274 (Ala. 1993).
But, Ms. Johnson contends the amended complaint relates back
to the original, timely filed complaint under Rules 9(h) and
15(c), Ala. R. Civ. P. (Doc. 7 at 5).
the code of Alabama provides the applicable statute of
limitations in this case, the court applies Alabama law
governing relation back of amendments. Fed.R.Civ.P. 15(c)(1);
Saxton v. ACF Industries, Inc., 254 F.3d 959, 963-64
(11th Cir. 2001). Under Alabama's fictitious party rule,
a plaintiff is permitted to fictitiously name defendants who
may later be substituted to avoid the bar of a statute of
limitations under the state relation-back rule. Ala. R. Civ.
P. 9(h), 15(c); see also Jones v. Resorcon, Inc.,
604 So.2d 370, 372 (Ala. 1992). A plaintiff's amendment
substituting a defendant for a previously named fictitious
defendant relates back when: “(1) the original
complaint adequately described the fictitious defendant; (2)
the original complaint stated a claim against the fictitious
defendant; (3) the plaintiff was ignorant of the true
identity of the defendant; and (4) the plaintiff used due
diligence to discover the defendant's true
identity.” Jones, 604 So.2d at 372. If Ms.
Johnson knew “the identity of the fictitiously named
parties or possesse[d] sufficient facts to lead to the
discovery of their identity” when she filed the initial
complaint, the amended complaint does not relate back.
Clay v. Walden Jt. Venture, 611 So.2d 254, 256 (Ala.
Johnson argues that the substitution of Higbee for a
fictitiously named defendant relates back to the date of the
original pleading because she was uncertain as to whether
Higbee was a proper defendant. (Id. at 6). The court
is not persuaded. It is extraordinary to the court that Ms.
Johnson argues she lacked the requisite knowledge of
Higbee's identity as a potential defendant after: (1)
mailing Higbee a letter of representation; (2) requesting
information related to its liability insurance; (3) preparing
a draft complaint listing Higbee as the sole defendant; and
(4) threatening to sue Higbee if her claims were not settled.
The court presumes that when an attorney sends a letter
demanding settlement, it is based on the good faith belief
that the claims alleged against the recipients are viable.
Furthermore, Ms. Johnson was aware of some relationship
between Higbee and Dillard's for over one year before she
filed the initial complaint. Within that period of time, Ms.
Johnson should have exercised due diligence to determine the
nature of the Higbee-Dillard's relationship and whether
it gave rise to a duty on Higbee's part. Ex parte
Nicholson Mfg. Ltd., 182 So.3d 510, 514 (Ala. 2015)
(citing Ex parte Ismail, 78 So.3d 399 (Ala. 2011)).
these facts, the court finds that Ms. Johnson possessed
sufficient information regarding Higbee's identity prior
to filing the initial complaint and therefore the amended
complaint did not toll the two-year statute of limitations
under Alabama's fictitious party rule. Because Ms.
Johnson has not created a triable issue of fact concerning
whether the claims brought against Higbee in the amended
complaint are time barred, Ms. Johnson's claims fail as a
matter of law.
the court GRANTS Higbee's motion for
summary judgment and DISMISSES Ms.
Johnson's claims against Higbee WITH