Carter v. Walgreens Specialty Pharmacy LLC
MEMORANDUM OPINION. Signed by Judge R David Proctor on 5/12/2017. (KAM, )
2017 May-12 PM 02:17
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JILLIAN M. CARTER,
WALGREENS SPECIALTY PHARMACY }
Case No.: 2:17-CV-3-RDP
This matter is before the court on Defendant’s Motion to Dismiss (Doc. # 9). Defendant
contends that this action is due to be dismissed because the statute of limitations expired prior to
the commencement of this action. Defendant’s motion is fully briefed. (Docs. # 9, 11, 13). The
court held oral argument on Defendant’s motion on May 10, 2017. For the reasons stated below,
Defendant’s motion is due to be denied.
This action has struggled to get off the ground. Plaintiff’s accident occurred on January
17, 2015 at a Walgreen’s store.1 (Doc. # 1 at ¶ 4). Plaintiff’s Complaint was filed on January 3,
2017, and was designated Case No. 2:17-cv-00003-RDP. (See 2:17-cv-00070-RDP docket entry,
01/03/2017). However, Plaintiff did not pay the filing fee associated with this action. Instead,
on January 16, 2017, Plaintiff again filed her Complaint with the Clerk of the Court, at which
point it was designated as a separate action, No. 2:17-cv-00070-SGC. (See 2:17-cv-00070-SGC,
Doc. # 1). Plaintiff paid a filing fee contemporaneously with the second complaint. (Id., docket
It is undisputed, for the purposes of this motion, that a two year statute of limitations applies to each the
claims raised in Plaintiff’s complaint. See Ala. Code. §6-2-38(l).
entry, 01/17/2017). On January 20, 2017, Plaintiff filed a request for service by certified mail in
Case 2:17-cv-00070-SGC. (Id., Doc. # 3). However, on January 24, 2017, the court entered an
order directing the Clerk of the Court to apply the filing fee from the second action to this,
earlier-filed action, and directing the clerk to close the second action (2:17-cv-00070-SGC).
(Doc. # 2). Thereafter, Plaintiff filed a request for service by certified mail in this action, on
February 20, 2017. (Doc. # 3). And a summons was issued on March 13, 2017. (Doc. # 4).
Plaintiff has offered an explanation regarding the various delays in this action. She
contends that she was unable to submit the filing fee in this action due to technical difficulties
related to counsel’s PACER account.2 (Doc. # 11 at p. 2). While Plaintiff filed a request for
service by certified mail in Case No. 2:17-cv-00070-SGC on January 20, 2017, her counsel
represents that counsel received a voicemail from a representative of the court instructing
Plaintiff to “hold off on service” until the court determined how to proceed with the identical
pending cases. (Id. at p. 3). Following the court’s January 24, 2017 order, Plaintiff represents
that counsel called the court on January 26, 2017 to determine if she was required to file a new
request for service by certified mail. (Id.). Plaintiff contends that a representative of the court
told her to wait “a few days” before filing a request for service, because “the system” was not
showing that the case was active at that time. (Id.).
Defendant has moved to dismiss this action on statute of limitations grounds. After
careful review, and as an initial matter, the court concludes that Defendant’s attempt to defeat
this action on statute of limitations grounds at this Rule 12(b) stage is premature. Indeed, 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.” Brotherhood of Locomotive
Plaintiff’s counsel clarified the scope of the “technical difficulties” at oral argument.
Engineers and Trainmen General Committee of Adjustment CSX Transp. Northern Lines v. CSX
Transp., Inc., 522 F.3d 1190, 1194 (11th Cir. 2008); McMillian v. AMC Mortg. Services, Inc.,
560 F. Supp. 2d 1210, 1213 (S.D. Ala.2008) (“A statute of limitations defense is generally not
appropriate for evaluation on a Motion to Dismiss filed pursuant [to] Rule 12(b)(6),
Fed.R.Civ.P.”). Here, Plaintiff’s complaint does not demonstrate on its face any basis for
dismissal on statute of limitations grounds. The guiding inquiry here is inherently fact sensitive,
and to the extent that Defendant seeks a determination based on facts outside of the complaint,
Defendant’s statute of limitations argument is best reserved for a motion for summary judgment.
See La Grasta v. First Union Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004) (“A statute of
limitations bar is an affirmative defense and ... plaintiffs are not required to negate an affirmative
defense in their complaint.”) (citation and internal marks omitted)
Second, even if Defendant’s statute of limitations argument were properly presented in its
motion to dismiss, the argument is unpersuasive. In an action brought in federal court under
diversity jurisdiction, “[e]xcept in matters governed by the Federal Constitution or by Acts of
Congress, the law to be applied in any [diversity] case is the law of the State.” Erie R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938). And, where there is no Federal Rule which covers the point
in dispute, Erie commands the enforcement of state law. Hanna v. Plumer, 380 U.S. 460, 470
Federal Rule of Civil Procedure 3 governs the date from which various timing
requirements of the Federal Rules begin to run. Fed. R. Civ. P. 3 (“A civil action is commenced
by filing a complaint with the court.”). However, Rule 3 “does not affect state statutes of
limitations.” Walker v. Armco Steel Corp., 446 U.S. 740, 750-51 (1980) (“There is no indication
that [Rule 3] was intended to toll a state statute of limitations, much less that it purported to
displace state tolling rules for purposes of state statutes of limitations.”). Accordingly, Alabama
state law controls the determination of when an action commences for purposes of satisfying the
statute of limitations.
In Alabama, “[t]he filing of a complaint commences an action for purposes of the
Alabama Rules of Civil Procedure but does not ‘commence’ an action for purposes of satisfying
the statute of limitations.” Precise v. Edwards, 60 So. 3d 228, 230-31 (Ala. 2010) (internal
citations omitted) (emphasis in original). Instead, an action is commenced within the statute of
limitations only if the complaint is filed and there also exists “a bona fide intent to have it
immediately served.” Id. at 231 (quoting Dunnam v. Ovbiagele, 814 So. 2d 232, 237-38 (Ala.
2001)); see also Maxwell v. Spring Hill Coll., 628 So. 2d 335, 336 (Ala. 1993) (“This Court has
held that the filing of a complaint, standing alone, does not commence an action for statute of
limitations purposes.”) (internal quotations omitted). Whether “a bona fide intent existed at the
time the complaint was filed must be determined by an objective standard.” ENT Assocs. of
Alabama, P.A. v. Hoke, 2016 WL 4585742, at *5 (Ala. Sept. 2, 2016). And:
[a]lthough delay may not be evidence, in and of itself, of a lack of a bona fide
intent to immediately serve the complaint at the time it is filed, delay in
conjunction with the absence of evidence of any steps taken by the plaintiff to
effectuate service at the time of filing the complaint is evidence of a lack of a
bona fide intent to immediately serve the complaint.
Id. at *6.
It is clear that, under Alabama law, no bona fide intent to immediately serve the
complaint exists where the plaintiff, upon filing of the complaint, expressly orders the clerk to
withhold service of process. Freer v. Potter, 413 So. 2d 1079, 1081 (Ala. 1982). Moreover,
“delay in conjunction with the absence of evidence of any steps taken by the plaintiff to
effectuate service at the time of filing the complaint” may provide evidence of a lack of a bona
fide intent to immediately serve the complaint. ENT Assocs. of Alabama, P.A. v. Hoke, 2016 WL
4585742, at *6. However, when the plaintiff takes steps necessary to accomplish service upon
filing of the complaint, there exists a bona fide intent to immediately serve the complaint. Ex
parte E. Alabama Mental Health-Mental Retardation Bd., Inc., 939 So. 2d at 4-5.
This black letter law demonstrates the benefit of assessing a plaintiff’s intent to serve the
complaint on a motion for summary judgment, rather than a motion to dismiss. However, as the
court expressed during the hearing on this matter, the record before the court on Defendant’s
motion to dismiss certainly indicates that there existed a bona fide intent to immediately serve
the complaint in this action.3
Defendant’s Motion to Dismiss (Doc. # 9) is due to be denied. A separate order will be
entered contemporaneously herewith.
DONE and ORDERED this May 12, 2017.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
Plaintiff first attempted to file this action on January 3, 2017, well in advance of the January 17, 2017
deadline imposed by the statute of limitations. Plaintiff’s counsel represented to the court at oral argument that she
was unable to pay the initial filing fee due to technical issues related to her law firm’s PACER account. In any event,
Plaintiff did not pay the filing fee at the time she filed her initial complaint. Instead Plaintiff filed her second, but
identical, complaint and paid the filing fee within the statute of limitations. Both of the complaints which Plaintiff
filed indicated Plaintiff’s intention to serve Defendant via certified mail at a designated address. And, Plaintiff filed
a request for service by certified mail days after filing her second complaint. This alone (independent of any outside
evidence purporting to establish the basis for Plaintiff’s delay) is evidence of Plaintiff’s bona fide intent to
immediately serve the complaint in this action. Moreover, it is informative that Plaintiff filed her complaint a
second time after failing to successfully do so on her first attempt. While this was not the proper method of ensuring
that the filing fee for this action was paid, it evidences Plaintiff’s intent to commence this action and suggests a bona
fide attempt to serve Defendant. And, given the brief existence of two identical actions, the court cannot conclude
that the short gap between Plaintiff filing her complaint and requesting for service by certified mail (and later
requesting summons from the Clerk of the Court) objectively demonstrates a lack of bona fide intent to immediately
serve the complaint.
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