Vincent L Rowell, Estate of et al v. Walker Baptist Medical Center et al

Filing 106

MEMORANDUM OPINION AND ORDER that the defendants' motions for reconsideration are OVERRULED and DENIED, and the Clerk is directed to return this case to the Magistrate Judge to whom it was assigned when filed for all further proceedings up to and, if the parties consent, through trial, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/29/2013. (AHI)

FILED
2013 Jan-30 AM 08:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ESTATE OF VINCENT L.
ROWELL, et al.,
Plaintiffs,
vs.
WALKER BAPTIST MEDICAL
CENTER, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 5:11-CV-3439-RRA

MEMORANDUM OPINION AND ORDER
This is an action “to vindicate the constitutional rights of . . . Vincent L.
Rowell,” who died in the Walker County Jail on October 6, 2009, allegedly as a result
of injuries received in the custody of law enforcement officers.1 Plaintiffs are Linda
Rowell and Victor Pickett, the parents of the decedent, and Horacia Pickett, the
personal representative of his estate. Their amended complaint asserts federal
constitutional claims under 42 U.S.C. § 1983 against several municipal, county, and
state law enforcement officers for violation of Mr. Rowell’s Fourth Amendment rights
to be free from unreasonable seizures and excessive force, and his Eighth Amendment
right to be protected from cruel and unusual punishment.2 Plaintiffs also assert
1
2

Doc. no. 29 (Amended Complaint), at 4.

Id. Just one example of plaintiffs’ attorneys’ numerous professional errors is provided by
their reliance upon the Eighth Amendment as the basis for claims that defendants were deliberately
indifferent to the serious medical needs of plaintiffs’ decedent, Vincent L. Rowell.

supplemental state-law claims under 28 U.S.C. § 1367(a) for negligence, wantonness,
and wrongful death.3
The action was commenced on September 22, 2011, and the original complaint
alleged that “Heracio Pickett, Cousin, is the personal representative of his estate,
which is pending in the Probate Court of Jefferson County, Alabama, Case No.
(Pending). He sues in that capacity.”4 In fact, a petition for letters of administration
of the Estate of Vincent L. Rowell, deceased, had not then been filed with the Probate
Judge of Jefferson County, and Horacia Pickett was not appointed personal
representative of the Estate until September 26, 2011: that is, four days after this
action was commenced;5 and, nine days before plaintiffs’ amended complaint was
That is an error because Mr. Rowell was a pretrial detainee. Consequently, the protections
of the Eighth Amendment did not apply to him; instead, that Amendment applies only to inmates
of state prisons and those persons incarcerated in county jails who have been convicted of and
sentenced for state offenses, but not yet transferred to a state prison. Stated somewhat differently,
the prohibitions of the Eighth Amendment and the caselaw gloss layered upon it do not protect
pretrial detainees. See Marsh v. Butler County, 268 F.3d 1014, 1024 n.5 (11th Cir. 2001) (en banc)
(citing Tittle v. Jefferson County Commission, 10 F.3d 1535, 1539 n.3 (11th Cir.1994) (en banc) (in
turn citing Ingraham v. Wright, 430 U.S. 651 (1977)).
The proper constitutional basis for claims of deliberate indifference to the serious medical
needs of a pretrial detainee is the Due Process Clause of the Fourteenth Amendment. Even so, the
Eleventh Circuit has said that “the standard for providing basic human needs to those incarcerated
or in detention is the same under both the Eighth and Fourteenth Amendments.” Marsh, 268 F.3d
at 1024 n.5 (citing Hamm v. DeKalb County, 774 F.2d 1567, 1573-74 (11th Cir.1985); Lancaster
v. Monroe County, 116 F.3d 1419, 1425 n.6 (11th Cir.1997) (minimum standard for providing
medical care to pretrial detainee under Fourteenth Amendment is same as minimum standard
required under Eighth Amendment for convicted prisoner)).
3

Doc. no. 29 (Amended Complaint), at 4.

4

Doc. no. 1 (Original Complaint) ¶ 2, at 4 (emphasis supplied). Mr. Pickett’s given name
is inconsistently spelled in the record of this case as “Horacia,” “Horacio,” and “Heracia.”
5

See doc. no. 51(Memorandum Brief in Support of Defendant Deputy Alfred Grace’s Motion

2

filed on October 5, 2011.6
Further, plaintiffs’ amended complaint was docketed only one day prior to the
expiration of the applicable statute of limitations. See Ala. Code § 6-5-410(d) (1975)
(prescribing that wrongful death actions “must be commenced within two years from
and after the death of the testator or intestate”).
The Magistrate Judge to whom this action was assigned concluded, on the basis
of the foregoing facts, that plaintiffs lacked “standing” on the date the action was filed
and, therefore, that this court did not possess subject matter jurisdiction.7 Upon
receiving the Magistrate Judge’s report recommending the dismissal of all claims, this
court reviewed the entire file and reached an independent conclusion sustaining
plaintiffs’ objections to the Magistrate’s report and recommendation.8
The case now is before this court a second time, on defendants’ motions to
reconsider the opinion rejecting the Magistrate Judge’s recommendation to dismiss
this action for lack of “standing.”9
to Dismiss), Exhibit A (Docket Report from the Probate Court of Jefferson County, Alabama,
indicating that “Heracia Pickett” received Letters of Administration on Sept. 26, 2011). As observed
in note 2, supra, Mr. Pickett’s first name is spelled in various ways in the record of this case: e.g.,
as “Horacia,” “Horacio,” and “Heracia.”
6

See doc. no. 29 (Amended Complaint).

7

See doc. no. 68 (Report & Recommendation).

8

See doc. no. 94 (Opinion & Reasons).

9

The defendants’ original motion for reconsideration was filed by Police Chief T. J. Burnett,
Officer Clint McKinney, and Officer Greg Glover (collectively, the “Sumiton Defendants”). See
doc. no. 95 (Motion to Reconsider). The following defendants subsequently adopted and joined in

3

I. ISSUES FOR RECONSIDERATION
When rejecting the Magistrate Judge’s report and recommendation, this court
relied on the decision of the Eleventh Circuit Court of Appeals in Hess v. Eddy, 689
F.2d 977 (11th Cir. 1982), abrogated on other grounds by Wilson v. Garcia, 471 U.S.
261 (1985). The facts of the Hess case were materially similar to the facts of the
present case, with one significant difference. In Hess, the real party in interest — the
duly appointed personal representative of the decedent’s estate — was not added as
a plaintiff to the action until after the expiration of the applicable statute of limitations.
In contrast, in the present case, the plaintiffs filed an amended complaint adding the
personal representative of the decedent’s estate the day before the expiration of the
statute of limitations.
On the date that the Hess opinion was entered, the relevant portion of Federal
Rule of Civil Procedure 17(a) provided that:
No action shall be dismissed on the ground that it is not prosecuted in the
name of the real party in interest until a reasonable time has been
allowed after objection for ratification of commencement of the action
by, or joinder or substitution of, the real party in interest; and such
ratification, joinder, or substitution shall have the same effect as if the
the Sumiton defendants’ motion for reconsideration: Dr. David Wilson; John Mark Tirey, Sheriff
of Walker County; Trent McCluskey, Jail Administrator, Walker County; Deputy Jonathan Long;
Deputy Rachael Harper; Lieutenant Richard DeJesus; Deputy Alfred Grace; and the Walker County
Commission. See doc. nos. 96 (Defendant Dr. David Wilson’s Adoption of and Joinder in the
Sumiton Defendants’ Motion to Reconsider), and 97 (Defendants Tirey, McCluskey, Long, Harper,
DeJesus, Grace, and Walker County Commission’s Adoption of and Joinder in the Sumiton
Defendants’ Motion to Reconsider).

4

action had been commenced in the name of the real party in interest.
Fed. R. Civ. P. 17(a).10 The Hess panel held that the “plain language” of Rule 17(a)
clearly provides that when an action is brought by someone other than
the real party in interest within the limitations period, and the real party
in interest joins or ratifies the action after the limitations period has run,
the amendment or ratification relates back to the time suit was originally
filed and the action need not be dismissed as time barred.
Hess, 689 F.2d at 980 (emphasis supplied). The Hess panel emphasized that its
interpretation of the language of Rule 17(a) was consistent with Supreme Court
precedent,11 the Advisory Committee Notes to the 1966 amendments to Rule 17,12 the
10

The full text of this Rule, as it read on Oct. 21, 1982 — the date of the Eleventh Circuit’s
opinion in Hess v. Eddy — read as follows:
(a) Real Party In Interest. Every action shall be prosecuted in the name of
the real party in interest. An executor, administrator, guardian, bailee, trustee of an
express trust, a party with whom or in whose name a contract has been made for the
benefit of another, or a party authorized by statute may sue in his own name without
joining with him the party for whose benefit the action is brought; and when a statute
of the United States so provides, an action for the use or benefit of another shall be
brought in the name of the United States. No action shall be dismissed on the ground
that it is not prosecuted in the name of the real party in interest until a reasonable
time has been allowed after objection for ratification of commencement of the action
by, or joinder or substitution of, the real party in interest; and such ratification,
joinder, or substitution shall have the same effect as if the action had been
commenced in the name of the real party in interest.
Fed. R. Civ. P. 17(a) (1982) (emphasis supplied).
11

In Levinson v. Deupree, 345 U.S. 648, 650 (1953), the Supreme Court held that

where a wrongful death action is brought by a party not yet properly appointed as the
administrator of the decedent’s estate, and where proper appointment occurs only
after the applicable state limitations period has run, a federal court must allow the
appointment to “relate back” to the time of initial filing — even though the forum
state would not allow such a “relation back” and would hold the action time barred
in its own courts.

5

commentary in trusted treatises,13 and the decisions of most of the courts that had
considered the issue.14 Id. at 980-81. Based upon those considerations, the Hess panel
held that
Rule 17(a) sets forth a rule of procedure that is to be applied in the
federal courts. The Rule provides that when an action is brought by
someone other than the real party in interest, the suit need not be
dismissed if the real party in interest subsequently joins or ratifies the
action. The Rule further provides that such subsequent joinder or
ratification by the real party in interest relates back to the time the suit
was first filed. If the initial filing came within the applicable limitations
period, the suit is not time barred. Most importantly, the Rule is to be
applied even where the courts of the forum state have rejected the
“relation back” doctrine. For this reason, we must conclude that the
district court erred in applying Alabama law on the question of whether
the doctrine of “relation back” would apply in this case. This is a federal
civil rights action, brought in a federal court, and it is the Federal Rules
of Civil Procedure that must apply.
Hess, 689 F.2d at 981 (emphasis supplied) (discussing Levinson).
12

The Advisory Committee stated in 1966 that the purposes of adding provisions to allow
for relation back when the real party in interest is substituted after the complaint is filed were to
“insure against forfeiture and injustice,” and to “codify in broad terms the salutary principle of”
Levinson. Fed. R. Civ. P. 17 advisory committee’s note.
13

The Eleventh Circuit cited Moore’s Federal Practice & Wright and Miller’s Federal
Practice and Procedure, both of which emphasized that Rule 17 was designed to allow relation back
even when the applicable state law would not. Hess, 689 F.2d at 981 (citing 3A James Wm. Moore
et al., Moore’s Federal Practice ¶ 17.09 (2d ed. 1982); Charles Allen Wright & Arthur R. Miller,
6C Federal Practice & Procedure § 1541 (1971).
14

The Hess Court cited Farbwerke Hoechst A.G. v. M/V “Don Nicky,” 589 F.2d 795, 797-98
(5th Cir. 1979), Wadsworth v. United States Postal Service, 511 F.2d 64, 65-67 (7th Cir. 1975),
Crowder v. Gordons Transports, Inc., 387 F.2d 413, 415 (8th Cir. 1967), Motta v. Resource
Shipping & Enter. Co., 499 F. Supp. 1365, 1369, 1374 (S.D. N.Y. 1980), de Vries v. Weinstein
International Corp., 80 F.R.D. 452, 458-59 (D. Miss. 1978), Unilever Ltd. v. M/T Stolt Boel, 77
F.R.D. 384 (S.D. N.Y. 1977), James v. Nashville Bridge Co., 74 F.R.D. 595, 596-97 (N.D. Miss.
1977), Caldwell v. Metcalfe, 458 F. Supp. 847, 848 (E.D. Tenn. 1977), and Honey v. George Hyman
Construction Co., 63 F.R.D. 443 (D. D.C. 1974). See Hess, 689 F.2d at 981 & 981 n.8.

6

Hess, 689 F.2d at 981. Accordingly, the Hess panel held that the claims in that case
were not time-barred, because the administratrix had been properly substituted as the
real party in interest in accordance with Rule 17(a). Id. at 982.
Based upon the holding in Hess, this court’s prior opinion reasoned that the
question of whether plaintiffs’ amended complaint related back to the date on which
the original complaint was filed is an issue that is governed by federal, and not state,
law.15
Defendants attempt to distinguish Hess by noting that, in 1991, Congress
amended Federal Rule of Civil Procedure 15(c), which governs the relation back of
pleadings, and that the Eleventh Circuit subsequently reexamined the issue in Saxton
v. ACF Industries, Inc., 254 F.3d 959 (11th Cir. 2001) (en banc). On the basis of
those intervening events, defendants argue that the Hess opinion is no longer
controlling, and that the relation back of amended pleadings now is governed by state
law, and not federal law.16 Defendants believe that plaintiffs’ amended complaint was
a “nullity” under Alabama law, because there was nothing to which it could relate
back.17 Thus, defendants seek reconsideration of two discrete issues:
1. Whether, in light of the amendments to the Federal Rules of
15

Doc. no. 94 (Opinion & Reasons), at 14.

16

Doc. no. 95 (Defendants’ Motion to Reconsider), at 4.

17

Id. at 5.

7

Civil Procedure occurring after Hess v. Eddy, 689 F.2d 977 (11th Cir.
1982), and the Eleventh Circuit’s subsequent decision in Saxton v. ACF
Industries, Inc., 254 F.3d 959 (11th Cir. 2001) (en banc), Alabama law
governing the relation back of amendments is controlling?
2. Whether federal rules of procedure can be utilized to
retroactively cure a jurisdictional defect caused by Plaintiffs’ failure to
comply with the substantive requirements of Alabama’s wrongful death
statute which are incorporated into federal law by operation of 42 U.S.C.
§ 1988?18
The brief submitted by plaintiffs’ attorneys in opposition to defendants’ motion
is utterly devoid of relevant argument or legal authority.19 “‘It is not a court’s task to
research legal arguments on a party’s behalf.’” Costa v. Sam’s East, Inc., No.
11-0297, 2012 U.S. Dist. LEXIS 109833, *14 (S.D. Ala. Aug. 6, 2012) (quoting
Minemyer v. B-Roc Representatives, Inc., 695 F. Supp. 2d 797, 809 (N.D. Ill. 2009)).
Even so, this court has reviewed cases post-dating the 1991 amendments to Rule
18

Id. at 1-2.

19

See doc. no. 100 (Plaintiffs’ Response to All Defendants’ Motion for Reconsideration and
Argument Therefor). For example, in defendants’ reply to plaintiffs’ brief in opposition to the
motion, defendants correctly observe that plaintiffs devote two paragraphs to advancing arguments
for the defense, without seeming to realize what they are doing. See doc. no. 102 (Reply to
Opposition to Motion to Reconsider) (quoting doc. no. 100, at 6-7). Moreover, plaintiffs’ brief is
replete with embarrassing spelling and grammatical errors to nearly the point of incoherence.
Given the abysmal quality of plaintiffs’ pleadings over the course of this litigation, and given
the fact that the need to draft the present opinion was precipitated by plaintiffs’ failure to timely seek
appointment as decedent’s personal representatives, this court is disturbed to note that plaintiffs are
represented. In fact, plaintiffs have three attorneys in this action, two of whom (Antonio L. Thomas
and Melvin Robinson) are admitted to practice pro hac vice.
Counsel are reminded that “permission to appear pro hac vice is [a] privilege, [the] granting
of which is within [the] sound discretion of [the] presiding judge,” and which can be revoked if they
continue to violate the professional standards of this District. D. H. Overymyer, Co. v. First
National Bank of Boston, 750 F.2d 31, 34 (6th Cir. 1984) (citing Thomas v. Cassidy, 249 F.2d 91
(4th Cir. 1957) (per curiam), cert. denied, 355 U.S. 958 (1958)) (alterations and emphasis supplied).

8

15(c), and upon consideration of those authorities, defendants’ motion for
reconsideration will be denied.
III. DISCUSSION PART A:
The Evolution of Fed. R. Civ. P. 17(a)
The language of that portion of Rule 17(a) upon which the decision in Hess v.
Eddy turned had been added by amendments that became effective on July 1, 1966,
more than sixteen years before the Eleventh Circuit’s opinion. The relevant language
remained the same for another quarter-century, until the amendments that because
effective on December 1, 2007, which were intended to be stylistic only. See Fed. R.
Civ. P. 17 advisory committee’s note (2008) (“The language of Rule 17 has been
amended as part of the general restyling of the Civil Rules to make them more easily
understood and to make style and terminology consistent throughout the rules. These
changes are intended to be stylistic only.”). The text of the Rule was reorganized, and
the relevant language now is found in subsection (a)(3), which reads as follows:
(3) Joinder of the Real Party in Interest. The court may not
dismiss an action for failure to prosecute in the name of the real party in
interest until, after an objection, a reasonable time has been allowed for
the real party in interest to ratify, join, or be substituted into the action.
After ratification, joinder, or substitution, the action proceeds as if it had
been originally commenced by the real party in interest.
Fed. R. Civ. P. 17(a)(3) (2013). Clearly, there is no substantive distinction between
the relevant language of Rule 17 as it was written in 1982 and today.
9

IV. DISCUSSION PART B:
The Evolution of Fed. R. Civ. P. 15(a)
Federal Rule of Civil Procedure 15 has been amended seven times since its
inception: i.e., on July 1, 1963; July 1, 1966; August 1, 1987; December 1, 1991;
December 1, 1993; December 1, 2007; and December 1, 2009.20 The first substantive
change in the language of Rule 15(c) was worked by the amendments that became
effective on July 1, 1966. The subsection then read as follows:
Whenever the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading, the amendment relates back to the
date of the original pleading. An amendment changing the party against
whom a claim is asserted relates back if the foregoing provision is
satisfied and, within the period provided by law for commencing the
action against him, the party to be brought in by amendment (1) has
received such notice of the institution of the action that he will not be
prejudiced in maintaining his defense on the merits, and (2) knew or
should have known that, but for a mistake concerning the identity of the
proper party, the action would have been brought against him.
Schiavone v. Fortune, 477 U.S. 21, 24 (1986) (quoting Fed. R. Civ. P. 15(c) as

20

Note that the dates listed in text are the dates upon which the amendments became
effective. See, e.g., 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure – Civil § 1471, at 583 (2010).
Prior to July 1, 1963, the effective date of the first amendment, Rule 15(c) read as follows:
“Whenever the claim or defense asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in the original pleading, the
amendment relates back to the date of the original pleading.” See United States v. Johnson, 288 F.2d
40, 42 (5th Cir. 1961) (quoting Fed. R. Civ. P. 15(c)). The 1963 amendments to Rule 15 did not
affect subpart (c). Therefore, during the period of July 1, 1963 to July 1, 1966, Rule 15(c) continued
to read as set out in the preceding sentence. See Staggers v. Otto Gerdau Co., 359 F.2d 292, 297
(2d Cir. 1966) (quoting Fed. R. Civ. P. 15(c)).

10

amended July 1, 1966) (emphasis supplied).
Rule 15(c) received a minor, apparently stylistic, amendment on August 1,
1987; and, from that date until December 1, 1991 the Rule read as follows:
Whenever the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading, the amendment relates back to the
date of the original pleading. An amendment changing the party against
whom a claim is asserted relates back if the foregoing provision is
satisfied and, within the period provided by law for commencing the
action against the party to be brought in by amendment that party (1) has
received such notice of the institution of the action that the party will not
be prejudiced in maintaining his defense on the merits, and (2) knew or
should have known that, but for a mistake concerning the identity of the
proper party, the action would have been brought against the party.
Simmons v. South Central Skyworker’s, Inc., 936 F.2d 268, 270 (6th Cir. 1991)
(quoting Fed. R. Civ. P. 15(c) as amended Aug. 1, 1987) (emphasis supplied).
Rule 15(c) received a major amendment on December 1, 1991. From then until
December 1, 1993, the date of the next amendment, Rule 15(c) read as follows:
An amendment of a pleading relates back to the date of the
original pleading when (1) relation back is permitted by the law that
provides the statute of limitations applicable to the action, or (2) the
claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth
in the original pleadings, or (3) the amendment changes the party or the
naming of the party against whom a claim is asserted if the foregoing
provision (2) is satisfied and, within the period provided by Rule 4(j) for
service of the summons and complaint, the party to be brought in by
amendment (A) has received such notice of the institution of the action
that the party will not be prejudiced in maintaining a defense on the
11

merits, and (B) knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would have been
brought against the party.
Worthington v. Wilson, 8 F.3d 1253, 1255 (7th Cir. 1993) (quoting Fed. R. Civ. P.
15(c) as amended Dec. 1, 1991) (emphasis supplied). The Advisory Committee Notes
on the 1991 amendments explain that the new paragraph (c)(1)
is intended to make it clear that the rule does not apply to preclude any
relation back that may be permitted under the applicable limitations law.
Generally, the applicable limitations law will be state law. If federal
jurisdiction is based on the citizenship of the parties, the primary
reference is the law of the state in which the district court sits. Walker
v. Armco Steel Corp., 446 U.S. 740 [64 L. Ed. 2d 659] (1980). If federal
jurisdiction is based on a federal question, the reference may be to the
law of the state governing relations between the parties. E.g., Board of
Regents v. Tomanio, 446 U.S. 478 [64 L. Ed. 2d 440] (1980). In some
circumstances, the controlling limitations law may be federal law. E.g.,
West v. Conrail, Inc., 481 U.S. 35, 107 S. Ct. 1538 [95 L. Ed. 2d 32]
(1987). Cf. Burlington Northern R. Co. v. Woods, 480 U.S. 1 [94 L. Ed.
2d 1] (1987); Stewart Organization v. Ricoh, 487 U.S. 22, 108 S. Ct.
2239 [101 L. Ed. 2d 22] (1988). Whatever may be the controlling body
of limitations law, if that law affords a more forgiving principle of
relation back than the one provided in this rule, it should be available to
save the claim. Accord, Marshall v. Mulrenin, 508 F.2d 39 (1st Cir.
1974). If Schiavone v. Fortune, 477 U.S. 21, 106 S. Ct. 2379 [91 L. Ed.
2d 18] (1986) implies the contrary, this paragraph is intended to make a
material change in the rule.
Fed. R. Civ. Proc. 15 advisory committee’s note to 1991 amendments (alterations in
original).
Rule 15(c) received a minor amendment on December 1, 1993; and, from that

12

date until December 1, 2007 — i.e., the period during which both Saxton v. ACF
Industries, Inc., 254 F.3d 959 (11th Cir. 2001) (en banc), and Wilson v. Navistar
International Transport Corp., 193 F.3d 1212 (11th Cir. 1999), were decided — the
Rule read as follows:
An amendment of a pleading relates back to the date of the
original pleading when
(1)

relation back is permitted by the law that provides the
statute of limitations applicable to the action, or

(2)

the claim or defense asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, or

(3)

the amendment changes the party or the naming of the party
against whom a claim is asserted if the foregoing provision
(2) is satisfied and, within the period provided by Rule
4(m) for service of the summons and complaint, the party
to be brought in by amendment (A) has received such
notice of the institution of the action that the party will not
be prejudiced in maintaining a defense on the merits, and
(B) knew or should have known that, but for a mistake
concerning the identity of the proper party, the action
would have been brought against the party.

Oduok v. Phillips, 154 F. App’x 878, 880-81 (11th Cir. 2005) (quoting Fed. R. Civ.
P. 15(c) as amended Dec. 1, 1993) (emphasis supplied).
The 2007 amendments did not affect subpart (c). Thus, during the period from
December 1, 2007 to December 1, 2009, Rule 15(c) continued to read as set out in the

13

preceding paragraph. See, e.g., Force v. City of Memphis, No. 95-6333,1996 U.S.
App. LEXIS 30233, *6 (6th Cir. Nov. 14, 1996) (Lively, J.) (quoting Fed. R. Civ. P.
15(c) as amended Dec. 1, 2007).
Rule 15(c) was most recently amended on December 1, 2009, and it presently
reads as follows:
An amendment to a pleading relates back to the date of the
original pleading when:
(A)

the law that provides the applicable statute of limitations
allows relation back;

(B)

the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out — or
attempted to be set out — in the original pleading; or

(C)

the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is
satisfied and if, within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought
in by amendment:
(i)

received such notice of the action that it will not be
prejudiced in defending on the merits; and

(ii)

knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party’s identity.

Fed. R. Civ. P. 15(c) as amended Dec. 1, 2009.
V. DISCUSSION PART C:
Federal Law on Relation Back
14

In the wake of the 1991 amendments to Federal Rule of Civil Procedure 15(c),
Eleventh Circuit authority on whether relation back is governed by federal or state law
has been unsettled. In Wilson v. Navistar International Transport Corp., 193 F.3d
1212 (11th Cir. 1999) — a diversity case in which the laws of Alabama provided the
substantive rules of decision — the plaintiffs filed an action for product liability
against multiple named and fictitious defendants. Id. at 1213. The district court
allowed the plaintiffs to amend their complaint to substitute a defendant named
Fontaine Company for one of the timely pleaded fictitious defendants, but later
reversed itself after determining that “federal procedural law would not provide for
such a substitution by amendment.” Id. On appeal, the Eleventh Circuit faced the
issue of whether relation back was governed by federal or state law, and relied in part
on Hess v. Eddy, 689 F.2d 977 (11th Cir. 1982), to hold that federal law applied:
Relation-back issues are procedural in nature and the Federal
Rules of Civil Procedure apply. Glickstein v. Sun Bank/Miami, N.A., 922
F.2d 666, 671-72, n. 9 (11th Cir.1991), adopting Crowder v. Gordons
Transports, Inc., 387 F.2d 413, 416 (8th Cir.1967). In Crowder the
Eighth Circuit applied Erie principles and determined that the district
court’s application of state “relation-back” principles was improper
because the specific provisions of Rule 15(c) governed this federal
procedural question. See Crowder, 387 F.2d at 416 (the issue of relation
back is one of procedure and is controlled by the Federal Rules of Civil
Procedure.). See also Hess v. Eddy, 689 F.2d 977, 980 (11th Cir.), cert.
denied, 462 U.S. 1118, 103 S. Ct. 3085, 77 L. Ed. 2d 1347 (1982)
(holding that the district court “erred in applying Alabama’s ‘no
relation-back’ rule in the face of a Federal Rule of Civil Procedure
15

[17(a)] that expressly authorizes and adopts the ‘relation-back’ doctrine”
in context of administration of estate and suit filed in federal court prior
to administratrix receiving official representative status).
The relation back of an amendment to correct a misnomer in
pleadings is procedural and governed by federal, not state, law. Welch
v. Louisiana Power & Light Company, 466 F.2d 1344, 1345 (5th
Cir.1972); Gifford v. Wichita Falls & So. Ry. Co., 224 F.2d 374 (5th
Cir.), cert. denied, 350 U.S. 895, 76 S. Ct. 153, 100 L. Ed. 787 (1955);
Grandey v. Pacific Indemnity Co., 217 F.2d 27 (5th Cir.1954); Barthel
v. Stamm, 145 F.2d 487 (5th Cir., 1944), cert. denied, 324 U.S. 878, 65
S. Ct. 1026, 89 L. Ed. 1430 (1945). The Supreme Court has established
a strong presumption that the federal rules govern, rather than state law,
in cases involving arguably procedural matters. Hanna v. Plumer, 380
U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965).
The form of notice contemplated by Rule 15(c) serves the major
purpose of state statutes of limitations — to ensure that defendants are
given adequate notice in time to prepare a defense. Welch, 466 F.2d at
1346. Application of state rules concerning relation back would disrupt
important federal policies favoring simplification and uniformity of
pleading and liberality of amendment. Id. Therefore, the district court
acted appropriately when it corrected itself and applied the Federal Rules
of Civil Procedure.
Wilson, 193 F.3d at 1213-14 (alterations in original).
Two years later, the Eleventh Circuit, sitting en banc, reexamined the issue of
whether relation back is governed by federal or state law in federal actions founded
on diversity of citizenship in Saxton v. ACF Industries, Inc., 254 F.3d 959 (11th Cir.
2001) (en banc). The plaintiffs in that case had sued numerous fictitious defendants
for an injury under Alabama’s general tort statute, but did not include ACF Industries

16

as a defendant until the third amended complaint, which was filed after the expiration
of the two-year state-law statute of limitations. Id. at 962. When ACF moved for
summary judgment, the district court granted the motion, and decided that federal law
applied to bar relation back. The Eleventh Circuit reversed, and determined that
Federal Rule of Civil Procedure 15(c)(1) incorporates state-law relation back rules
when state law provides the applicable statute of limitations.
We now reconsider whether Federal Rule of Civil Procedure
15(c)(1) allows federal courts to apply state law relation-back rules to
amendments in a diversity case where state law provides the applicable
statute of limitations. For the reasons outlined above, we find that both
the language of Rule 15(c)(1) and its accompanying advisory committee
notes indicate that Rule 15(c)(1) does incorporate state law relation-back
rules in such an instance. Therefore, we join the other circuits in holding
that Rule 15(c)(1) allows federal courts sitting in diversity to apply
relation-back rules of state law where, as here, state law provides the
statute of limitations for the action. See Arendt [v. Vetta Sports, Inc.], 99
F.3d [231,] 236 [(7th Cir. 1996)]; Lundy [v. Adamar of N.J., Inc.], 34
F.3d [1173,] 1184 [(3d Cir. 1994)]; McGregor [v. Louisiana State
University Board of Supervisors], 3 F.3d [850,] 863 n.22 [(5th Cir.
1993)]. To the extent that Wilson holds otherwise, it is overruled.
Saxton, 254 F.3d at 963 (footnote omitted, alterations supplied).
Defendants argue that Saxton serves to bar the application of federal law to
relation back in the case before this court because “Alabama law provides the statute
of limitations for all claims presented by Plaintiffs.”21
21

In Saxton, the court’s

Doc. no. 95, at 4. Although plaintiffs’ § 1983 claim arises under federal law, the “statute
of limitations for a § 1983 claim is generally the applicable state-law period for personal-injury
torts.” City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 124 (2005) (citing Wilson v. Garcia,

17

jurisdiction was based upon the parties’ complete diversity of citizenship and the
requisite amount in controversy. See 28 U.S.C. § 1331(a)(1). In contrast, this court
has statutory and federal question jurisdiction over plaintiffs’ claims that are asserted
through the remedial vehicle of 42 U.S.C. § 1983, and supplemental jurisdiction over
plaintiffs’ state-law claims under 28 U.S.C. § 1367(a).22 Thus, in order to accept
defendants’ argument, this court would have to conclude that the 1991 amendments
to Rule 15(c), as well as the holding in Saxton, both require the application of state
law to relation back in the statutory, federal question, and supplemental jurisdiction
context. Such an interpretation contravenes the plain language of both Rule 15(c) and
the Saxton opinion, as well as common sense about civil procedure.
471 U.S. 261, 275 (1985); Owens v. Okure, 488 U.S. 235, 240-41 (1989)).
22

See, e.g., doc. no. 1, at 2 (“This Court has jurisdiction over these claims pursuant to 42
U.S.C. § 1983, as well as 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1343 (a)(3) (civil rights)
and 28 U.S.C. § 1367(a) (supplemental jurisdiction).”).
“Two jurisdictional statutes apply to 42 U.S.C. § 1983 litigation in federal court: 28 U.S.C.
§ 1343(a)(3), the jurisdictional counterpart of 42 U.S.C. § 1983; and 28 U.S.C. § 1331, the general
federal question statute.” Karen M. Blum & Kathryn R. Urbonya, Section 1983 Litigation, Federal
J u d i c i a l
C e n t e r ,
3
( 1 9 9 8 ) ,
http://www.fjc.gov/public/pdf.nsf/lookup/Sect1983.pdf/$file/Sect1983.pdf.
28 U.S.C. § 1343(a)(3) (1993) provides as follows:
(a) The district courts shall have original jurisdiction of any civil action authorized
by law to be commenced by any person: . . . (3) To redress the deprivation, under
color of any State law, statute, ordinance, regulation, custom or usage, of any right,
privilege or immunity secured by the Constitution of the United States or by any Act
of Congress providing for equal rights of citizens or of all persons within the
jurisdiction of the United States.
28 U.S.C. § 1331 (1993) provides that “district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws or treaties of the United States.”

18

In 1991, Federal Rule of Civil Procedure 15(c) was amended to state that “‘an
amendment of a pleading relates back to the date of the original pleading when
relation back is permitted by the law that provides the statute of limitations applicable
to the action.’” Saxton, 254 F.3d at 962 (quoting Fed. R. Civ. P. 15(c)(1)) (emphasis
supplied). By selecting the word “action,” as opposed to the term “claim,” Congress
appeared to instruct trial courts to examine the nature of the plaintiffs’ entire action
(i.e., whether the jurisdiction of the action is founded upon the diversity or federalquestion statutes), rather than the nature of the plaintiffs’ individual claims (i.e.,
whether those claims are subject to a statute of limitations under federal or state law).
Although the current version of Rule 15(c)(1) does not contain a reference to either
an “action” or a “claim,” those changes were “intended to be stylistic only.”23
Further, the Advisory Committee Notes on the 1991 amendments to Federal
Rule of Civil Procedure 15(c) distinguished between actions in which the court’s
jurisdiction was based upon the diversity and federal question statutes, and preserved
the possibility of applying the federal law on relation back when “federal jurisdiction
is based on a federal question.”
If federal jurisdiction is based on the citizenship of the parties, the
23

Advisory Committee Notes on the 2007 amendments to Federal Rule of Civil Procedure
15(c). In 2007, Rule 15(c)(1) was amended to state that “[a]n amendment to a pleading relates back
to the date of the original pleading when the law that provides the applicable statute of limitations
allows relation back.” Fed. R. Civ. P. 15(c)(1)(A).

19

primary reference is the law of the state in which the district court sits.
Walker v. Armco Steel Corp., 446 U.S. 740 [64 L. Ed. 2d 659] (1980).
If federal jurisdiction is based on a federal question, the reference may
be to the law of the state governing relations between the parties. E.g.,
Board of Regents v. Tomanio, 446 U.S. 478 [64 L. Ed. 2d 440] (1980).
In some circumstances, the controlling limitations law may be federal
law. E.g., West v. Conrail, Inc., 481 U.S. 35, 107 S. Ct. 1538 [95 L. Ed.
2d 32] (1987). Cf. Burlington Northern R. Co. v. Woods, 480 U.S. 1 [94
L. Ed. 2d 1] (1987); Stewart Organization v. Ricoh, 487 U.S. 22, 108 S.
Ct. 2239 [101 L. Ed. 2d 22] (1988).
Fed. R. Civ. P. 15 advisory committee’s note (alterations in original, emphasis
supplied).
Finally, when crafting its holding that Federal Rule of Civil Procedure 15(c)(1)
includes state-law relation-back rules when state law provides the statute of
limitations, the Saxton court was careful to repeatedly include qualifying phrases,
limiting the Court’s holding only to those cases in which the court’s jurisdiction was
premised upon the diversity statute.
We now reconsider whether Federal Rule of Civil Procedure
15(c)(1) allows federal courts to apply state law relation-back rules to
amendments in a diversity case where state law provides the applicable
statute of limitations. For the reasons outlined above, we find that both
the language of Rule 15(c)(1) and its accompanying advisory committee
notes indicate that Rule 15(c)(1) does incorporate state law relation-back
rules in such an instance. Therefore, we join the other circuits in holding
that Rule 15(c)(1) allows federal courts sitting in diversity to apply
relation-back rules of state law where, as here, state law provides the
statute of limitations for the action. See Arendt [v. Vetta Sports, Inc.], 99
F.3d [231,] 236 [(7th Cir. 1996)]; Lundy [v. Adamar of N.J., Inc.], 34
F.3d [1173,] 1184 [(3d Cir. 1994)]; McGregor [v. Louisiana State
20

University Board of Supervisors], 3 F.3d [850,] 863 n.22 [(5th Cir.
1993)]. To the extent that Wilson holds otherwise, it is overruled.
Saxton, 254 F.3d at 963 (footnote omitted, emphasis and alterations supplied).
A.

Other Federal Authority on the Issue of Whether Relation Back is
Governed by Federal or State Law
In the factually similar case of Estate of Fortunato by Fortunato v. Handler,

969 F. Supp. 963 (W.D. Pa. 1996), which was decided after the 1991 amendments to
Federal Rule of Civil Procedure 15(c), a New Jersey district court continued to rely
on Hess v. Eddy, 689 F.2d 977 (11th Cir. 1982), and applied the federal law on
relation back. In Fortunato, the decedent was shot and killed by police during the
execution of a misdemeanor warrant for his arrest. 969 F. Supp. at 966. The plaintiff,
the decedent’s twin brother, filed a complaint as “personal representative” of the
estate, and asserted federal-law claims under 42 U.S.C. § 1983, as well as
supplemental state-law claims for assault, battery, and intentional infliction of
emotional distress under 28 U.S.C. § 1367. Id. at 966, 974. Although the complaint
was filed one day before the expiration of the state-law two-year statute of limitations
on the § 1983 claims, the plaintiff did not apply for or receive letters of administration
for the estate until after that limitations period had run. Id. at 966. When the state
actors moved to dismiss the complaint as untimely, the trial court held that their
“reliance on Pennsylvania case law is misguided . . . because federal procedural law,
21

specifically Federal Rule of Civil Procedure 17(a), governs the relation back issue in
this case.” Id. at 967.
“If there is a Federal Rule of Civil Procedure covering a particular
issue in dispute between the parties, such a rule governs in a federal
diversity action even if resort to state law would lead to a different
result.” In re Asbestos School Lit., 768 F. Supp. 146, 150 (E.D. Pa.
1991), citing Hanna v. Plumer, 380 U.S. 460, 14 L. Ed. 2d 8, 85 S. Ct.
1136 (1965). Under Hanna v. Plumer, “the question of relation back is
procedural and therefore properly analyzed according to federal
practice.” Nelson v. County of Allegheny, 60 F.3d 1010, 1014 (3d Cir.
1995). See also Hess v. Eddy, 689 F.2d 977, 980 (11th Cir. 1982), cert.
denied, 462 U.S. 1118, 77 L. Ed. 2d 1347, 103 S. Ct. 3085 (district court
“erred in applying Alabama’s ‘no relation back’ rule in the face of a
Federal Rule of Civil Procedure [17(a)] that expressly authorizes and
adopts the ‘relation back’ doctrine” in context of administration of estate
and suit filed in federal court prior to administratrix receiving official
representative status); Brohan v. Volkswagen Mfg. Corp. of America, 97
F.R.D. 46, 49 (E.D. N.Y. 1983) (in similar context, Fed. R. Civ. P. Rule
17(a) applies by its plain language and, under Hanna v. Plumer,
overrides New York law to the contrary).
Fed. R. Civ. P. 17(a) of the Federal Rules of Civil Procedure
specifically addresses the issue of substitution, ratification or joinder of
the real party in interest and the effect thereof on suits previously filed:
No action shall be dismissed on the ground that it is
not prosecuted in the name of the real party in interest until
a reasonable time has been allowed after objection for
ratification of commencement of the action by, or joinder
or substitution of, the real party in interest; and such
ratification, joinder, or substitution shall have the same
effect as if the action had been commenced in the name of
the real party in interest.
In analyzing Rule 17(a), the Court of Appeals for the Eleventh
22

Circuit concluded that:
The plain language of the Rule clearly provides that
when an action is brought by someone other than the real
party in interest within the limitations period, and the real
party in interest joins or ratifies the action after the
limitations period has run, the amendment or ratification
relates back to the time suit was originally filed and the
action need not be dismissed as time barred.
Hess v. Eddy, 689 F.2d at 980.
Fed. R. Civ. P. 17(a) “sets forth a rule of procedure that is to be
applied in federal courts . . . even where the courts of the forum state
have rejected the ‘relation back doctrine.’” Id. at 981. Thus, if “the
initial filing came within the applicable limitations period, the suit is not
time barred,” id., even if Pennsylvania law would not recognize the
relation back. See Levinson v. Deupree, 345 U.S. 648, 97 L. Ed. 1319,
73 S. Ct. 914 (1953), relied upon in Hess, (in the case of a wrongful
death action brought by party not yet properly appointed as administrator
of decedent’s estate, and where the appointment occurs only after the
statute of limitations has run, a federal court must allow the appointment
to relate back to the time of the initial filing even if the forum state
would not allow the relation back and would hold the action time-barred
in its own courts).
Although Paul Fortunato was not appointed administrator of
decedent’s estate until February 7, 1995, his post-appointment
ratification of that suit has the same effect as if the action had initially
been commenced in the name of the real party in interest pursuant to
Fed. R. Civ. P. 17(a). Accordingly, the Pennsylvania statute of
limitations does not bar plaintiff’s claim, which, because it related back
to the timely complaint filed when the administrator’s status was not yet
official, was timely filed within the two-year statutory period.
Estate of Fortunato, 969 F. Supp. at 966-68 (alterations in original).

23

Accordingly, it appears that after the 1991 amendments to Federal Rule of Civil
Procedure 15(c), federal law continues to govern relation back in federal question
cases. Thus, under Federal Rule of Civil Procedure 17(a) — both as it was worded
in 1982, when the Hess opinion was handed down, and today — plaintiffs’ amended
complaint relates back to the filing of their original complaint.
Even so, given that Eleventh Circuit authority on whether relation back is
governed by federal or state law in federal court is presently unsettled, this court will
not end its analysis here, but will review the arguments for reconsideration, assuming
for the sake of discussion that Alabama law applies.
B.

Alabama Law on Relation Back
Defendants correctly note that “Alabama’s wrongful death statute is the only

mechanism through which either of [plaintiffs’] claims survives,” and that the only
individual who can invoke that statute is the personal representative of the decedent’s
estate who was duly-appointed by the Probate Judge of Jefferson County, Alabama.24
However, defendants then argue that “Alabama law precludes the relation back of an
amended complaint to an original complaint which was filed in violation of
Alabama’s wrongful death law.”25 That argument directly contravenes the holding in
24

Doc. no. 95, at 6. Alabama Code § 6-5-410(a) states that a “personal representative may
commence an action” for wrongful death. Ala. Code § 6-5-410(a) (1975) (emphasis supplied).
25

Id. at 5 (citing Cadle Co. v. Chabani, 4 So. 3d 460, 463 (Ala. 2008); Downtown Nursing
Home, Inc. v. Pool, 375 So. 2d 465, 466 (Ala. 1979)).

24

Ellis v. Hilburn, 688 So. 2d 236 (Ala. 1997), which permitted the relation back of an
amended complaint to an original complaint that was filed before the plaintiff became
the personal representative of the decedent’s estate.
In Ellis, the plaintiff’s husband was allegedly killed by the medical malpractice
of the defendant doctor. Ellis, 688 So. at 236. The plaintiff filed her original
complaint as her husband’s “next-of-kin.” Id. One day before the expiration of the
statute of limitations, the plaintiff was duly appointed as her husband’s personal
representative. Id. When the defendant moved to dismiss the complaint on grounds
of untimeliness, the trial court denied the motion, and allowed the plaintiff to amend
her complaint to state that she had been appointed as personal representative within
the statutory period. Id. at 237. The Supreme Court of Alabama affirmed, and
reasoned as follows:
The determinative issue in this case is whether a wrongful death
complaint filed by one acting as “next-of-kin” of the deceased, but who
was not at the time the personal representative of the deceased’s estate,
can be amended after the expiration of the two-year wrongful death
limitations period to name the plaintiff as the personal representative,
where the “next-of-kin” who filed the original complaint has in fact been
appointed administratrix of the estate within the two-year limitations
period.
Dr. Ellis argues that Mrs. Hilburn did not file the action as the
administratrix within two years of her husband’s death, pointing out that
the Wrongful Death Statute requires, as a substantive part of the cause
of action, commencement of the action within two years of the death of
25

the decedent. He relies on Downtown Nursing Home, Inc. v. Pool, 375
So. 2d 465 (Ala. 1979), cert. denied, 445 U.S. 930, 100 S. Ct. 1318, 63
L. Ed. 2d 763 (1980). Dr. Ellis argues that, because the complaint filed
in October 1994 was filed by Mrs. Hilburn as “next-of-kin” and not as
the administratrix, the complaint was a nullity and therefore could not be
amended or corrected. Therefore, he argues, the amended complaint
filed in January 1995 is also a nullity because, he contends, it has
nothing to relate back to under Rule 15(c), Ala. R. Civ. P.
In Pool this Court addressed similar issues of (1) whether one who
is not an administrator of the estate may initially maintain a wrongful
death action and (2) whether an amendment can relate back, when filed
after the expiration of the two-year period, to substitute as the plaintiff
the administrator, who had been appointed administrator after the
two-year period had expired. In Pool, J.P. filed a complaint based on the
death of E.P., who had died on November 24, 1976. After the two-year
period had expired, J.P. sought to amend his complaint to substitute as
the plaintiff B.J., who had been appointed administrator of E.P.’s estate
on February 5, 1979, more than two years after E.P.’s death. This Court
held that because there had been no one authorized to file the action
before the expiration of the two years, the doctrine of relation-back had
no application.
In Pool, the administrator was not appointed until after the
limitations period had expired. In contrast, Mrs. Hilburn was appointed
administratrix before the limitations period expired.26 Dr. Ellis, looking
to Holyfield v. Moates, 565 So. 2d 186 (Ala. 1979), argues that Mrs.
Hilburn’s suing as next-of-kin was void ab initio and therefore could not
be ratified by her later being appointed administratrix. This Court stated
in Holyfield, 565 So. 2d at 187-89:
26

This court notes that the defendants in this case cite the same authority (i.e., Pool, 375 So.
2d) to support the same argument (i.e., that “Alabama law precludes the relation back of an amended
complaint to an original complaint which was filed in violation of Alabama’s wrongful death law
and [that the complaint] is therefore a nullity”) as Dr. Hilburn did in Ellis. Compare doc. no. 95,
at 5 with Ellis, 688 So. at 238. As in Ellis, this court will reject defendants’ argument because one
of the plaintiffs, Heracia Pickett, was appointed as the decedent’s personal representative prior to
the expiration of the statute of limitations. See doc. nos. 29 and 51.

26

“In [Pool] and Brown v. Mounger, [541 So. 2d 463
(Ala. 1989)], we held that to bring a wrongful death action
pursuant to § 6-5-410 . . . the personal representative must
be a duly appointed executor or administrator, and that the
failure of the personal representative to be so appointed
rendered his acts void. . . .
“. . . .
“. . . That which is void provides no basis for
corrective action. That which is merely voidable is viable
until declared void and it will support both a waiver and an
amendment.”
However, Rule 17(a), Ala. R. Civ. P., suggests that so long as
capacity exists before the limitations period expires, the wife, after being
appointed administratrix within the limitations period, may then, as the
real party in interest, ratify the commencement of the action. Thus, with
respect to ratification, Rule 17(a) provides:
“No action shall be dismissed on the ground that it is
not prosecuted in the name of the real party in interest until
a reasonable time has been allowed after objection for
ratification of commencement of the action by, or joinder
or substitution of, the real party in interest; and such
ratification, joinder, or substitution shall have the same
effect as if the action had been commenced in the name of
the real party in interest.”
In Holyfield, supra, this Court distinguished between acts that are
voidable and those that are void. It reversed the judgment of the trial
court and remanded to allow an amendment, filed after expiration of the
limitations period, to substitute the properly appointed personal
representative as the real party in interest. The Court held that the
amendment related back to the filing of the original complaint because
the acts of the prior, improperly appointed personal representative, who
as a nonresident of Alabama was disqualified, were not void, but merely
27

voidable. The Court reasoned that the “holding is mandated by Rule
17(a), Ala. R. Civ. P.” 565 So. 2d at 189. In reaching this conclusion,
the Court looked to the reasoning of Hess v. Eddy, 689 F.2d 977 (11th
Cir. 1982), and, upon reviewing the Hess court’s interpretation of Rule
17, Fed. R. Civ. P., stated the following:
“‘The plain language of the Rule clearly provides
that when an action is brought by someone other than the
real party in interest within the limitations period and the
real party in interest joins or ratifies the action after the
limitations period has run, the amendment or ratification
relates back to the time suit was originally filed and the
action need not be dismissed as time barred.’”
Holyfield, 565 So. 2d at 189 (emphasis in original). Earlier in the
Holyfield opinion, this Court reviewed its decision in Pool and, relying
on the Pool rationale, stated: “If the two-year period prescribed by the
statute has expired before the representative is ‘duly appointed,’ the heirs
of the decedent are barred from recovery.” Holyfield, 565 So. 2d at 187.
Because the two-year period did not expire before Mrs. Hilburn was
“duly appointed” as administratrix, she established her capacity within
the limitations period and, thereby, ratified her claim. Holyfield; Rule
17(a). Her amendment, therefore, relates back to the date she filed her
complaint.
The motion to amend in this case is based upon Rule 17(a), not on
Rule 15(c). Pool did not discuss ratification pursuant to Rule 17(a), and
the holding in that case is based solely upon application of Rule 15(c)
(dealing with relation back of amendments). This Court in Holyfield,
however, recognized the distinction in its application of Rule 17(a). The
rationale of that case supports a finding of a ratification of the filing of
Mrs. Hilburn’s action by her appointment within the limitations period.
Thus, we conclude that her amendment related back pursuant to Rule
15(c).
Ellis v. Hilburn, 688 So. 2d at 238-39 (alterations in original).

28

In sum, just as plaintiffs’ amended complaint relates back to the filing of their
original complaint under Federal Rule of Civil Procedure 17(a), it also does so under
Alabama Rule of Civil Procedure 17(a).
VI. CONCLUSION AND ORDER
For all of the foregoing reasons, defendants’ motions for reconsideration are
OVERRULED and DENIED, and the Clerk is directed to return this case to the
Magistrate Judge to whom it was assigned when filed for all further proceedings up
to and, if the parties consent, through trial.
DONE and ORDERED this 29th day of January, 2013.

_________________________
United States District Judge

29