Durgin v. Campbell

Filing 6

MEMORANDUM OPINION. Signed by Judge R David Proctor on 10/18/2013. (AVC)

FILED
2013 Oct-18 AM 09:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIE DURGIN, JR.,
Plaintiff,
v.
DONNA BICE CAMPBELL,
Defendant.

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Case No.: 2:13-CV-01798-RDP

MEMORANDUM OPINION
This matter is before the court on Defendant's Notice of Substitution and Application for
Order Thereon (Doc. # 2) and Defendant's Motion to Dismiss or for Summary Judgment (Doc. # 3).
On September 30, 2013, the court ordered the parties to brief the Motion and the Notice (to the
extent it was opposed) pursuant to Exhibit B attached to the court's September 30, 2013 Initial Order.
(Doc. # 5). Under Exhibit B, any opposition by Plaintiff would have been due on or before October
7, 2013. Plaintiff has not opposed either the Motion or the Notice.
I.

Background
On July 21, 2011, at approximately 10:00 a.m., a vehicle driven by Plaintiff was struck by

a vehicle driven by Campbell. (Doc. #1 at 10-13). The vehicle Campbell was driving was a mail
truck. (Doc. #1 at 10-13). On August 4, 2011, Plaintiff submitted a claim to the District Tort Claims
Office regarding that accident. (Doc. #1 at 10-13). On October 4, 2011, Plaintiff was offered a
settlement of $1,000 regarding this accident. (Doc. #1 at 10-11, 15). Plaintiff cashed the settlement
check on October 13, 2011. (Doc. #1 at 10-11).
On July 23, 2013, Plaintiff filed a simple negligence/wantonness action regarding this
incident against Campbell in the Circuit Court of Shelby County, Alabama. (Doc. #1 at 1). Notably,

Plaintiff's Complaint does not assert the date on which the accident occurred. (Doc. #1 at 7). The
United States removed the case to this court on September 27, 2013. (Doc. #1). Thereafter it filed
the instant Notice of Substitution and Application for Order Thereon (Doc. #2) and Motion to
Dismiss or for Summary Judgment (Doc. #3).
II.

Analysis
A.

Notice of Substitution and Application for Order Thereon

According to Plaintiff's original claim regarding this accident, Campbell was driving a mail
truck when the accident occurred. (Doc. #1 at 13). In addition, the United States Attorney for the
Northern District of Alabama has certified that the accident occurred within the scope of Campbell's
employment with the Unites States Postal Service. (Doc. #2 at 6). Therefore, pursuant to the
Federal Employees Liability Reform and Tort Compensation Act of 1988, §§ 5 and 6, Pub. L. No.
100-694, 102 Stat. 4563 (1988) (codified at 28 U.S.C. § 2679), the Notice of Substitution and
Application for Order Thereon (Doc. #2) is due to be granted and the United States substituted for
the individual defendant Donna Bice Campbell (Campbell).
B.

Defendant's Motion to Dismiss

Here, the undisputed evidence shows that Plaintiff already settled this claim with the United
States. Moreover, and in addition, it is barred by the applicable statute of limitations. The two-year
limitations period of § 6-2-38( l ) is applicable to negligence and wantonness claims. Ex parte
Capstone Bldg. Corp., 96 So.3d 77, 83 (Ala. 2012); Boyce v. Cassese, 941 So.2d 932, 945-46 (Ala.
2006); Malsch v. Bell Helicopter Textron, Inc., 916 So.2d 600, 601 (Ala. 2005); Gilmore v. M & B
Realty Co., 895 So.2d 200, 207-09 (Ala. 2004). The statute of limitations began to run in this case
on July 21, 2011. The statute of limitations on a claim begins to run when the cause of action
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accrues. Home Ins. Co. v. Stuart-McCorkle, Inc., 285 So.2d 468 (Ala. 1973). A cause of action
accrues as soon as the claimant is entitled to maintain an action, regardless of whether the full
amount of the damage is apparent at the time of the first legal injury. Smith v. Medtronic, Inc., 607
So.2d 156 (Ala. 1992); Garrett v. Raytheon Co., 368 So.2d 516, 518-19 (Ala. 1979). Because
Plaintiff's Complaint was filed on July 23, 2013, and that date is more than two years after the causes
of action accrued (on July 21, 2011), the claims are time-barred. Therefore, Defendant's Motion to
Dismiss or for Summary Judgment (Doc. #3) is due to be granted.
III.

Conclusion
For the reasons stated above, Defendant's Notice of Substitution and Application for Order

Thereon (Doc. #2) and Defendant's Motion to Dismiss or for Summary Judgment (Doc. #3) are due
to be granted. A separate order will be entered.
DONE and ORDERED this

18th

day of October, 2013.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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