Stryker v. Homewood, City of et al
MEMORANDUM OPINION AND ORDER DENYING 42 MOTION to Dismiss as set out herein. Signed by Judge Virginia Emerson Hopkins on 7/12/2017. (Attachments: # 1 Flood Opinion)(JLC)
2017 Jul-12 PM 02:31
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THE CITY OF HOMEWOOD, et
) Case No.: 2:16-CV-0832-VEH
MEMORANDUM OPINION AND ORDER
This is a civil action filed by the Plaintiff, Moses Stryker, against the following
Defendants: the City of Homewood, Alabama (“the City”); Jason Davis; Brian Waid;
and Frederick Blake. The individual defendants are police officers, or were at the
time of the events described in the Amended Complaint, and are all sued in their
individual capacities. The Plaintiff alleges that Davis, Waid, and Blake used
excessive and unnecessary force in arresting the Plaintiff. Against the City and the
individual defendants, the Plaintiff sets out claims pursuant to 42 U.S.C. § 1983.
(Counts One and Two). Against the individual defendants, the Complaint also sets
out Alabama state law claims of assault and battery (Count Three), negligence (Count
Four), and wantonness (Count Five).1
This matter comes before the Court on Defendant Davis’s partial motion to
dismiss, in which he seeks dismissal of the section 1983 claim asserted against him
in Count One, and the state law claims asserted against him in Counts Four and Five.
He argues that all of these claims are time-barred, even though all parties agree that
they were filed four days prior to the expiration of the applicable statute of
limitations, because of the rule in Alabama that a case is not “commenced” unless the
Complaint is timely filed along with the bona fide intention of having it immediately
served. See, Daniel v. Moye, No. 1140819, 2016 WL 6649138, at *15 (Ala. Nov. 10,
2016); ENT Assocs. of Alabama, P.A. v. Hoke, No. 1141396, 2016 WL 4585742, at
*6 (Ala. Sept. 2, 2016); Ex parte Courtyard Citiflats, LLC, 191 So. 3d 787, 797 (Ala.
2015) (“We have explained that, in addition to being filed in a timely manner, the
filing of a complaint must be done in a manner that demonstrates a bona fide intent,
at the time of filing, to proceed with this action.”) (internal quotations and citations
omitted) cert. denied sub nom. Arrington v. Courtyard Citiflats, LLC, 136 S. Ct.
1194, 194 L. Ed. 2d 204 (2016). Davis insists that the Plaintiff’s lack of intent to
A review of the Amended Complaint reflects that the listed state law claims were also
brought against the City. In addition, the Plaintiff asserted the state law claims of negligent
hiring (Count Six) and negligent training and supervision (Count Seven) against the City. All
state law claims asserted against the City were dismissed on July 7, 2017. (Doc. 65).
immediate serve the Complaint “is objectively evidenced by [the] Plaintiff waiting
eight weeks to seek issuance of the Summons.” (Doc. 42 at 2).
Very recently, in an opinion which extensively discussed this issue, this Court
determined that the Alabama rule cited above does not apply in federal question
cases. (Doc. 44, at 17, in Flood v. Alabama Peace Officers Standards and Training
Commission et al., 1:16-cv-01832-VEH). Further, in that same opinion this Court
noted that, while the rule does apply to state law claims, such issues are better
resolved in a motion for summary judgment. Id. at 32. The Court has attached that
opinion as an exhibit to this opinion. For the same reasons noted in that opinion, the
motion to dismiss the claims against Davis is due to be, and hereby is, DENIED.
DONE and ORDERED this 12th day of July, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
Doc. 44, in Flood v. Alabama Peace Officers Standards and
Training Commission et al., 1:16-cv-01832-VEH
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