Texidor v. Winn Dixie Stores Inc
MEMORANDUM OPINION. Signed by Judge Robert B Propst on 5/29/2014. (AVC)
2014 May-29 AM 10:22
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WINN DIXIE STORES, INC.,
This cause comes before the court on defendant Winn-Dixie Montgomery, LLC’s1
Motion to Dismiss, filed on February 18, 2014. On February 14, 2013, the plaintiff filed a
complaint with the Circuit Court of Calhoun County, Alabama. (Doc. 1-1). Due to a technical
error by the plaintiff, the complaint contained only a blank page. (Id.). On May 6, 2013, the
plaintiff amended the complaint to state a claim for negligence and wantonness against the
defendant. (Doc. 1-2). This amended complaint was served on the defendant on January 21,
2014. (Doc. 1, ¶ 1). On February 12, 2014, the defendant filed a Notice of Removal with this
court. (Doc. 1). It then filed the present Motion to Dismiss on February 18, 2014. (Doc. 5). It
argues the statute of limitations bars the plaintiff’s actions. The alleged incident happened on
February 21, 2011.
After careful consideration, the court determines the motion is to be
I. Legal Standard
A defendant may move to dismiss a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) if the plaintiff has failed to state a claim upon which relief may be granted.
The complaint incorrectly names the defendant as “Winn Dixie Stores, Inc.” (Doc. 5, p. 1).
“When considering a motion to dismiss, all facts set forth in the plaintiff’s complaint ‘are to be
accepted as true and the court limits its consideration to the pleadings and exhibits attached
thereto.’” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW,
Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir. 1993)). All “reasonable inferences” are
drawn in favor of the plaintiff. St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir.
In order to survive a motion to dismiss, a plaintiff is not required to “negate an
affirmative defense in [their] complaint.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845
(11th Cir. 2004) (quoting Tregenza v. Great American Communications Co., 12 F.3d 717, 718
(7th Cir. 1993)). Dismissal is appropriate only “if an affirmative defense … appears on the face
of the complaint.” Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (citing Jones v.
Bock, 549 U.S. 199, 216 (2007)).
The defendant argues that the negligence claim is time barred by the two year statute of
limitations. Ala. Code § 6–2–38; Henson v. Celtic Life Ins. Co., 621 So. 2d 1268, 1274 (Ala.
1993) (“The statutory period of limitations for negligence … is two years from the date the
injury occurred.”). It contends that although the plaintiff filed the initial, blank complaint within
this time period, the amended complaint does not relate back to this initial filing because it failed
to state a claim against the defendant. See Phelps v. S. Alabama Elec. Co-op, 434 So. 2d 234,
236 (Ala. 1983) (“[T]he primary issue is whether the complaint states a cause of action against
Thus, because the amended complaint was filed after the statute of
limitations, the defendant concludes that the negligence claim is time-barred.
The plaintiff responds that her initial complaint tolled the statute of limitations because
of a “technical difficulty.” (Doc. 7, p. 1). She contends that she mistakenly uploaded a
“shortcut” to the document rather than the actual document. Id. She points the court to various
cases finding that other technical errors should not render a complaint untimely. E.g., Shuler v.
Garrett, 715 F.3d 185, 186 (6th Cir. 2013).
The court finds that the plaintiff’s negligence claim is time-barred because the amended
complaint cannot relate back to the original, blank complaint. Typically, “[a] civil action is
commenced by filing a complaint with the court.” Ala. R. Civ. P. Rule 3(a). However, in order
for an amended complaint that adds or substitutes a defendant to relate back to the original
complaint, “the complaint must describe the actions that form the basis of the cause of action.”
Ex parte Int'l Ref. & Mfg. Co., 972 So. 2d 784, 789 (Ala. 2007) (emphasis added). The Supreme
Court of Alabama reasoned:
[N]o claim or cause of action was ever stated against the individuals at any time
before the statute of limitations ran. It can be argued that this interpretation of the
Rules of Civil Procedure is a technical one, but it is not an unreasonable one.
Although the rules do establish a system of notice pleading, they do not eliminate
the necessity of alleging a theory of liability against a defendant before the
limitation period runs, and merely listing a multitude of fictitious parties does not
meet that requirement. It is not unreasonable to require the statement of a claim to
be contained in the complaint itself.
Minton v. Whisenant, 402 So. 2d 971, 972-73 (Ala. 1981) (emphasis added). Furthermore,
“[w]here there is an amendment to a complaint which adds a new cause of action, it does not
relate back to the commencement of the suit insofar as the statute of limitations is concerned.”
Nason v. Jones, 179 So. 2d 281, 283 (1965) (citations omitted).2 It goes without saying, but the
The court notes the difference between a “cause of action” and a “new legal theory” or “claim” based on the same
alleged facts. See Ex parte Johnston-Tombigbee Furniture Mfg. Co., Inc., 937 So. 2d 1035, 1038-39 (Ala. 2005)
(“[W]hen an amendment merely changes the legal theory of a case or merely adds an additional theory, and the new
theory is based upon the same facts as the original one and those facts have been brought to the attention of the
defendant, the amendment does not prejudice the defendant; we have held that such an amendment is to be taken as
merely a more definite statement of the original cause of action and that it relates back to the date of the original
complaint.”) (citations omitted).
blank complaint did not “describe the actions that form the basis of the cause of action.” Ex
parte Int'l Ref. & Mfg. Co., 972 So. 2d at 789.
The plaintiff’s retort that her technical difficulties should negate these requirements is
unavailing. The cases cited by the plaintiff to support her argument are distinguishable from the
present case. In Schuler, the court held that an electronically-filed Rule 59 Motion to alter or
amend judgment was timely filed, despite containing the wrong docket number. 715 F.3d at
187. Because the motion was filed with the wrong docket number, “the motion was listed as
filed on the docket sheet of another case.” Id. at 186. The plaintiff then re-filed the motion a
week later outside of the 28 days allowed by Fed. R. Civ. P. 59(e). Id. The court stated:
In this circuit, we have honored the admonition in Rule 5(d)(4) of the Federal
Rules of Civil Procedure since its amendment in 1991 to provide, in pertinent
part, that “[t]he clerk shall not refuse to accept for filing any paper presented for
that purpose solely because it is not presented in proper form as required by these
rules or any local rules or practices.” Under that rule, plaintiffs' Rule 59 motion
should be considered timely filed. Furthermore, there is no evidence that
defendants suffered any prejudice as a result of the delay in filing because, on the
same day that plaintiffs' counsel filed the motion electronically (albeit under the
wrong docket number), counsel also served paper copies of the motion on the
defendants, as local rules required
Id. at 187.
The Seventh Circuit similarly held that “a timely electronic notice of appeal” was
sufficient to meet the deadline, despite “violat[ing] a local rule by failing to file the notice
‘conventionally on paper.’” United States v. Harvey, 516 F.3d 553, 556 (7th Cir. 2008) (citing
E.D. Wis., Electronic Case Filing Policies and Procedures Manual, Criminal Part III(C)). The
court reasoned that “Federal Rule of Civil Procedure 5(e) ensures that any document presented
to the clerk in violation of a local rule of form can nonetheless be filed for purposes of satisfying
a filing deadline.”3 Id.; see also Fed. R. Civ. P. 83(a)(2) (“A local rule imposing a requirement
of form must not be enforced in a way that causes a party to lose any right because of a
nonwillful failure to comply.”).
In M.B. v. R.P., the court refused “to dismiss the appeal based on the technicality of
untimely service [of appellate briefs] on the other parties.” 3 So. 3d 237, 245 (Ala. Civ. App.
2008). The court noted that “[u]nder the express provisions of the Rules of Appellate Procedure,
[the] court may, but is not required, to dismiss an appeal” for untimely service of the appellate
brief. Id. at 244. It further reasoned that, although proper service was a month late, the other
party “received a copy via e-mail … only one day late.” Id.
If the court were to accept the plaintiff’s argument, then the blank complaint would have
tolled the statute of limitations for every potential cause of action against every potential
defendant. Furthermore, in contrast to the cited cases, it took the plaintiff almost three months to
amend the complaint and state a cause of action against the defendant. (Docs. 1-1, 1-2).
Alabama law is clear: The plaintiff must “alleg[e] a theory of liability against a defendant before
the limitation period runs.” Minton, 402 So. 2d at 972-73. The plaintiff has not convinced the
court that her circumstances justify an exception to this requirement. She “cannot rely on her
own, unilateral mistake to toll the statute of limitations.” Arrington v. Walgreen Co., 609-CV1300-ORL-31, 2010 WL 2652478, at *3 (M.D. Fla. July 1, 2010) aff'd, 416 Fed. App'x 846 (11th
The Eight Circuit adopted this same reasoning regarding a notice of appeal. See Contino v. United States, 535 F.3d
124, 127 (2d Cir. 2008).
The court notes that even if the amended complaint related back to the original filing, it would still be untimely for
the reasons stated in Part B, infra.
The plaintiff’s wantonness claim is also barred by the statute of limitations.
wantonness claims, “litigants whose causes of action have accrued on or before the date of this
decision [i.e., June 3, 2011] shall have two years from today's date to bring their action unless
and to the extent that the time for filing their action under the six-year limitations period
announced in McKenzie would expire sooner.” Ex parte Tate & Lyle Sucralose, Inc., 81 So. 3d
1217, 1223 (Ala. 2011). Thus, the plaintiff’s claims were barred after June 3, 2013. The
defendant argues that the plaintiff’s delay in serving it bars her claims. See (Doc. 5, p. 7) (“336
days lapsed between the date the Summons was issued by the Clerk and the date Winn Dixie was
ultimately served with process. Even if the date of filing the Amended Complaint stands as the
measuring post …, 255 days lapsed.”). The court finds this argument persuasive.
“For statute-of-limitations purposes, the complaint must be filed and there must also
exist a bona fide intent to have it immediately served.” Precise v. Edwards, 60 So. 3d 228, 231
(Ala. 2010) (quotations and citation omitted) (emphasis original). The court reasoned that
“[e]ven though the complaint was served … within the time for service …, the unexplained
delay nevertheless evidenced a lack of intent to commence the action at the time it was filed. Id.
at 232 (emphasis original). In the instant case, the plaintiff elected service by process server and
then failed to serve the defendant for 256 days after filing the amended complaint.5 She has
failed to explain this delay. See (Doc. 7). As the Precise court stated:
The instant case involves service by process server, not by certified mail. The
plaintiffs elected this procedure and undertook the duty to obtain a process server.
At the time of filing, and for over four months thereafter, the plaintiffs failed to
do so. Like the plaintiff in Dunnam [v. Ovbiagele], the plaintiffs here were tardy
in performing the steps required of them to effectuate service. This unexplained
failure to perform tasks required to effectuate service at the time of filing,
“viewed objectively, evidences a lack of the required bona fide intent to have [the
The plaintiff explained that the process server initially could not download and serve the original complaint. Thus,
the court will consider her delay of service after filing the amended complaint.
defendants] immediately served.” 814 So.2d [232,] 239 [(Ala. 2001)]. This lack
of intent was unrebutted in the trial court.
60 So. 3d at 233 (footnote omitted) (emphasis original). Because the plaintiff lacked “the
required bona fide intent” to serve the defendant, the action was not commenced “for statute-oflimitations purposes.” Id. at 233-34.
For the foregoing reasons, the court finds that the defendant’s Motion to Dismiss is due
to be GRANTED. The court will enter an order to that effect contemporaneously herewith.
This the 29th day of May, 2014.
ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE
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