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

Filing 94

OPIONONS AND REASONS that this court sustains plaintiffs' objections, and rejects the recommendation of the Magistrate Judge, it is ORDERED that defendants motions to dismiss are DENIED, insofar as they were founded on plaintiffs' alleged lack of standing, it is further ORDERED that the Clerk return this case to the Magistrate Judge for all further proceedings; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/25/2012. (AHI)

FILED
2012 Jun-25 AM 10:03
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.

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

OPINION & REASONS
This case is before the court on the report and recommendation of the
Magistrate Judge, recommending that the case be dismissed for lack of subject matter
jurisdiction.1 Plaintiffs filed objections to the report and recommendation,2 and
defendants replied to plaintiffs’ objections.3 Following reference of the Magistrate
Judge’s report and recommendation to the undersigned, for review of the plaintiffs’
objections, this court considered the entire file in this action, including the report and
recommendation, and has reached an independent conclusion that plaintiffs’
objections are due to be sustained, and that the Magistrate Judge’s recommendation
is due to be rejected for the reasons set out more fully below.
1

Doc. no. 68 (Report & Recommendation).

2

Doc. no. 86 (Plaintiffs’ Objections to Report & Recommendation).

3

Doc. no. 89 (Reply to Plaintiffs’ Objections).

I. THE NATURE OF PLAINTIFFS’ CLAIMS
This is an action “to vindicate the constitutional rights of Plaintiff, Decedent,
Vincent L. Rowell.”4 It was commenced by Mr. Rowell’s parents and Horacia
Pickett,5 the personal representative of the estate of Vincent L. Rowell.6 Those
plaintiffs’ federal constitutional claims are asserted 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 the
infliction of excessive physical force, and violation of his Eighth Amendment right
to be protected from cruel and unusual punishment. Plaintiffs also assert under 28
U.S.C. § 1367(a) supplemental state-law claims for negligence, wantonness, and
wrongful death. All of plaintiffs’ claims are related to Mr. Rowell’s death in jail due
to injuries he allegedly received while in the custody of law enforcement.7
Some counts of the complaint arise out of injuries the decedent allegedly
suffered as a result of a police chase. Other counts arise out of the treatment
the decedent received at the hands of the hospital where he was taken after the
end of the chase. Still other counts arise out of the plaintiff’s treatment while
in custody at the Walker County Jail.

Doc. no. 68 (Report & Recommendation), at 2. The Magistrate Judge summarized

4

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

5

Mr. Pickett’s name is spelled variably in the record as “Horacia,” “Horacio,” and “Heracia.”

6

Amended Complaint, at 4.

7

See generally Amended Complaint.

2

the facts alleged by plaintiffs in the following manner:8
On September 30, 2009, at approximately 1:00 a.m., Vincent L.
Rowell, without permission, took a Jefferson County dump truck from a
county lot. He was pursued by officers of the Sumiton Police, the Alabama
State Troopers, the Walker County Sheriff’s Department, and the Marion
County Sheriff’s Department. Police used road spikes and a road block to stop
the vehicle around 6:00 a.m. Rowell exited the truck running and was
subsequently stopped and arrested.
Rowell was taken to the Sumiton police department headquarters and
then to the Walker Baptist Medical Center at 6:20 a.m. The plaintiff had
suffered injuries during his initial arrest, which the plaintiff states “were
inconsistent with the training manual for the apprehension of suspects by
sworn police officers.” (Doc. 29, p. 7.) He was released to the Sumiton Police
at 10:30 a.m. and taken back to the Sumiton police headquarters.
The Walker County Sheriff’s Department eventually took custody of
Rowell from the Sumiton Police. At the time of the change of custody, Rowell
was unable to walk. During the booking process, Walker County deputies
noted that Rowell was not able to stand or walk, and they had difficulty
understanding Rowell’s answers to questions. Rowell was dragged into his cell
by two unknown Walker County Deputies. For the next seven days, Rowell,
unable to walk, lay on the floor, in his own human waste. During this period
of time Rowell pleaded for medical treatment, “anticipating that he would die
if he did not get medical care.” (Doc. 29, p. 7.)
Two professionally trained nurses visited Rowell twice a day for seven
days while he wss in jail. He received one visit from a doctor. He “was refused
hospitalization for medical care.” (Doc. 29, p. 7.) Rowell pleaded for help at
least twice a day for each day he was there, and he further pleaded to be taken
to the hospital, a distance of about a half a mile away.
Rowell asked to be allowed to use the telephone. He was told that he
8

Of course, in ruling upon motions to dismiss and for summary judgment, trial courts must
assume the truthfulness of the facts alleged in the plaintiffs’ complaint, and draw all reasonable
inferences in favor of the parties opposing dismissal or summary judgment. See, e.g., Ashcroft v.
Iqbal, 556 U.S. —, 129 S. Ct. 1937, 1949-50 (2009) (motions to dismiss) (“When there are
well-pleaded factual allegations, a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”) (emphasis supplied); Chapman v. AI Transport,
229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (summary judgment).

3

could use the phone only if he could get to the phone, that was out of his
reach. “[T]he officials at the jail had clear knowledge that Decedent was
paralyzed and unable to walk.” (Doc. 29, p. 8.) Rowell eventually dragged
himself to the phone. His only call was to his parents, and it “was interrupted
when he informed his parents of his being beaten and being stunned by a
taser.” (Doc. 29, p. 8.)
On or about October 2, 2009, the plaintiff
was dragged out of his cell to a court hearing. He was returned to his
cell in a wheel chair bleeding from the rectum. The staff at the
Walker County jail was aware, and had actual knowledge, of
Decedent’s paralysis and inability to walk. On October 6, 2009,
Decedent Rowell was discovered dead in his cell.

(Doc. 29 p. 8.)

Doc. no. 68 (Report & Recommendation), at 6-8.
II. THE BASIS FOR THE MAGISTRATE’S OPINION
Plaintiffs’ original complaint was filed on September 22, 2011.9 However,
Horacia Pickett was not appointed the personal representative of the estate of Vincent
L. Rowell, deceased, until September 26, 2011 — i.e., four days after this action was
commenced,10 and nine days before the amended complaint was filed on October 5,
2011.11 Based upon those facts, the Magistrate Judge concluded that plaintiffs lacked
standing to pursue the claims asserted in this case and, therefore, that this court did

9

See doc. no. 1 (Complaint).

10

See doc. no. 51, at Exhibit 1 (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 5, supra, Mr. Pickett’s first name is spelled in various ways in the record: e.g.,
as “Horacia,” “Horacio,” and “Heracia.”
11

See doc. no. 29 (Amended Complaint).

4

not have subject matter jurisdiction. The following considerations informed his
judgment.
Alabama’s Wrongful Death Statute, § 6-5-410, Ala. Code (1975), “vest[s]
standing to sue only in the personal representative.” Tucker v. Molden, 761
So.2d 996, 998 (Ala. 2000). A plaintiff cannot “maintain [a] wrongful death
action until he [is] appointed as a personal representative of [the] estate.” Buck
v. City of Rainsville, 572 So.2d 419, 422 (Ala. 1990) (emphasis in original)
(under the Wrongful Death Act, claims “must be brought by a personal
representative” Id. at 423); Wright v. Woodley Manor Nursing Home, [No.
2:06-CV-1041-WKW] 2007 WL 841614, *4 ([Mar. 19, 2007] M.D. Ala.)
(“Plaintiff does not have standing to bring suit for a ‘wrongful death’ claim
since she is not a ‘personal representative’ as defined under Alabama law.”)[.]
Ala. Code § 6–5–462, also known as the Alabama survivorship statute, bars all
state law claims other than wrongful death that were unfiled at the time of the
plaintiff’s death. Even if the claims had been filed at the time of the plaintiff’s
death, there still would not be standing since the survivorship statute vests the
right to sue only “in favor of and against personal representatives.” Ala. Code.
6-5-462. The only evidence before the court is that no such personal
representative had been appointed at the time of the filing of this action.
The same analysis applies to civil rights claims under Section 1983.
By its terms, 42 U.S.C. § 1983 does not provide for the survival of
civil rights actions. Due to this “deficiency” in the statute, the
survivorship of civil rights actions is governed by 42 U.S.C. § 1988(a).
Robertson v. Wegmann, 436 U.S. 584, 588–89, 98 S. Ct. 1991, 1994,
56 L. Ed. 2d 554 (1978). That statute generally directs that, where
federal law is “deficient,” the state law of the forum applies as long as
it is “not inconsistent with the Constitution and the laws of the United
States.” 42 U.S.C. § 1988(a).

Estate of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d 1041,
1045 (11th Cir. 2011). The Eleventh Circuit, in Estate of Gilliam, held that
Alabama’s survivorship statute also applies to section 1983 claims that do not
result in death. Theses claims could survive only if they had been filed before
the death of the plaintiff, and only then if filed by a duly appointed
representative of the plaintiff’s estate. See Ala. Code. § 6-5-462. Neither
happened here. Alabama’s wrongful death statute can be applied to allow the
Section 1983 death claims to survive, but, as shown above, only in favor of the
named representative.

5

Because standing must be determined at the time the complaint was
filed, and because the parties listed in the complaint were not the
representatives of the plaintiff at that time, they have no standing to sue on his
behalf. Accordingly, this court lacks jurisdiction to hear this case and it should
be dismissed.12

“Article III, § 2, of the Constitution restricts the federal ‘judicial Power’ to the
resolution of ‘Cases’ and ‘Controversies.’[13] That case-or-controversy requirement
is satisfied only where a plaintiff has standing.” Sprint Communications Co., L.P. v.
APCC Services, Inc., 554 U.S. 269, 273 (2008) (citing DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332 (2006)); see also, e.g., McConnell v. Federal Election
Commission, 540 U.S. 93, 225 (2003) (“One element of that ‘bedrock’ case-orcontroversy requirement is that plaintiffs must establish that they have standing to
sue.”) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)), overruled on other
grounds by Citizens United v. Federal Election Commission, – U.S. – , 130 S. Ct. 876
12

Doc. no 68 (Report & Recommendation), at 10-11 (emphasis in original, bracketed
alterations supplied).
13

Article III, § 2 reads, in pertinent part, as follows:

The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which shall
be made, under their Authority;— to all Cases affecting Ambassadors, other public
Ministers and Consuls;— to all Cases of admiralty and maritime Jurisdiction;— to
Controversies to which the United States shall be a Party;— to Controversies
between two or more States;— between a State and Citizens of another State;—
between Citizens of different States;— between Citizens of the same State claiming
Lands under Grants of different States, and between a State, or the Citizens thereof,
and foreign States, Citizens or Subjects.
U.S. Const. art. III, § 2, ¶ 1 (1789).

6

(2010).
It follows, therefore, that a challenge to a plaintiff’s standing is an attack on the
court’s subject matter jurisdiction. See, e.g., Stalley v. Orlando Regional Healthcare
System, Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (“Because standing is
jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for
lack of subject matter jurisdiction[.]”) (internal quotations omitted); London v. WalMart Stores, Inc., 340 F.3d 1246, 1251 (11th Cir. 2003) (“The issue of whether
plaintiff lacks standing is jurisdictional[.]”).
As distinguished academicians have observed, however, “[s]tanding frequently
has been identified by both justices and commentators as one of the most confused
areas of the law.” Erwin Chemerinsky, Federal Jurisdiction § 2:3, at 57 (5th ed.
2007). “Many exasperated courts and commentators have . . . [complained] that [the]
standing doctrine is no more than a convenient tool to avoid uncomfortable issues or
to disguise a surreptitious ruling on the merits.” Charles Allen Wright, Arthur R.
Miller & Edward H. Cooper, 13 Federal Practice & Procedure: Jurisdiction § 3531
(2d ed. 2006) (footnote omitted).
III. DISCUSSION
All of plaintiffs’ state-law claims fall under the umbrella of Alabama’s
7

wrongful death statute. See Ala. Code § 6-5-410(a) (1975) (Supp. 2011). Only a duly
appointed personal representative of the decedent’s estate has standing to sue under
that statute. See id.; Ala. Code § 6-5-462 (1975); Tucker v. Molden, 761 So. 2d 996,
998 (Ala. 2000) (stating that the Alabama wrongful death statute vests “standing to
sue only in the personal representative”).
The same is true for plaintiffs’ § 1983 claims for constitutional violations, as
the Eleventh Circuit observed in Estate of Gilliam ex rel. Waldroup v. City of
Prattville, 639 F.3d 1041 (11th Cir. 2011):
[W]hen a constitutional violation actually causes the injured party’s
death, a § 1983 claim can be asserted through the Alabama wrongful
death statute, Ala. Code § 6-5-410. So, when a constitutional violation
actually causes death, Alabama law provides compensation for the
constitutional violation and imposes liability on the state official
responsible for the death — a result consistent with the purposes of §
1983.
Id. at 1047-48.
Here, it is undisputed that neither Heracia Pickett, nor any other individual, was
appointed as the personal representative of Mr. Rowell’s estate until September 26,
201114 — i.e., four days after plaintiffs’ original complaint was filed on September
22, 2011,15 and nine days before the amended complaint was filed on October 5,
14

See supra note 10.

15

See doc. no. 1 (Complaint).

8

2011.16 Thus, defendants asserted in the proceedings before the Magistrate Judge to
whom this case was assigned that plaintiffs lacked standing when they filed the
original complaint.
In response, plaintiffs argued that the standing defect was cured when they
filed an amended complaint (which asserts essentially the same claims alleged in the
original complaint) after Pickett received his Letters of Administration from the
Probate Court of Jefferson County, Alabama.
Under other circumstances, plaintiffs’ argument would be unavailing. As
defendants point out, “the standing inquiry remains focused on whether the party
invoking jurisdiction had the requisite stake in the outcome when the suit was filed.”
Davis v. Federal Election Commission, 554 U.S. 724, 734 (2008) (emphasis supplied)
(citations omitted); see also Focus on the Family v. Pinellas Suncoast Transit
Authority, 344 F.3d 1263, 1275 (11th Cir. 2003) (“Article III standing must be
determined as of the time at which the plaintiff’s complaint is filed.”) (citations
omitted). Thus, if a plaintiff lacked standing when the complaint first was filed,
subsequent amendments cannot create standing. In fact, any attempt at subsequent
amendments is simply ineffective, because “[b]y lacking standing to bring a claim the

16

See doc. no. 29 (Amended Complaint).

9

appellants also lack standing to amend the complaint.” Wright v. Dougherty County,
358 F.3d 1352, 1356 (11th Cir. 2004).
Alabama courts follow those same principles, and have even applied them in
the specific context of wrongful death actions. See, e.g., Cadle Co. v. Chabani, 4 So.
3d 460, 463 (Ala. 2008). As the Alabama Supreme Court has put it, when a plaintiff
files a wrongful death suit without first being duly appointed as the personal
representative of the decedent’s estate, the suit is “a nullity,” and subsequent
amendments therefore have no effect. Downtown Nursing Home, Inc. v. Pool, 375
So. 2d 465, 466 (Ala. 1979). See also State v. Property at 2018 Rainbow Drive, 740
So. 2d 1025, 1028 (Ala. 1999) (“[A] pleading purporting to amend a complaint,
which complaint was filed by a party without standing, cannot relate back to the filing
of the original complaint, because there is nothing ‘back’ to which to relate.”)
(citation omitted); Alabama Department of Corrections v. Montgomery County
Commission, 11So. 3d 189, 193 (Ala. 1993) (“The purported amendment of a nullity
is also a nullity.”).
Thus, by commencing this action before a personal representative had been
appointed for the decedent’s estate, plaintiffs’ attorneys came very close to converting
a presumptively valid wrongful death suit into a compelling action for legal
10

malpractice.
Fortunately for plaintiffs’ counsel (and the parties they purport to represent),
however, the unique situation presented in this case is subject to a narrow exception
to the usual standing rules. The Eleventh Circuit clarified that exception in Hess v.
Eddy, 689 F.2d 977 (11th Cir. 1982), abrogated on other grounds by Wilson v.
Garcia, 471 U.S. 261 (1985), a decision that was not cited in any party’s briefs. The
pertinent facts of that case were as follows:
On November 2, 1978, an inmate in an Alabama county jail was
brutally murdered by a fellow prisoner. On October 31, 1980, the
victim’s widow brought this civil rights damage action, alleging that her
husband’s death had been caused by the local prison officials’ failure to
provide safe and secure conditions of confinement. The plaintiff filed
her civil rights damage action in U.S. District Court pursuant to 42
U.S.C. § 1983. She brought suit in two capacities: as the victim’s
widow and as the administratrix of his estate. However, it was later
determined that the plaintiff had not been appointed administratrix of
her late husband’s estate until some time after she had filed her action.
At that time, she amended her original complaint so as to reflect her new
status as administratrix and to indicate her ratification of the initial filing
of suit.
Id. at 979. The district court below had held that “the only party who could properly
bring this section 1983 action was the administratrix of the decedent’s estate and that
because the plaintiff was not yet the administratrix at the time she filed her complaint,
the action had actually not been brought within the limitations period.” Id. The

11

district court also held that “the subsequent amendment of the complaint and its
ratification by the real party in interest did not ‘relate back’ to the initial filing of
suit.” Id. In so holding, the district court relied on Alabama cases that rejected the
“relation back” doctrine in wrongful death actions. Id. Importantly, this was the
same line of Alabama cases discussed above, including the Downtown Nursing Home
decision, all of which essentially held that “a wrongful death suit brought by someone
other than a duly appointed administratrix is void, and a subsequent amendment or
ratification of the action by the real party in interest does not relate back to the time
of initial filing.” Hess, 689 F.2d at 979 n.4.
The Eleventh Circuit held the district court erred in adopting Alabama’s “no
relation back” rule, because that rule was inconsistent with Federal Rule of Civil
Procedure 17(a), which, at the time, read as follows:
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.
Hess, 689 F.2d at 980 (quoting the version of Fed. R. Civ. P. 17(a) in effect at the

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time).17 According to the Eleventh Circuit, the “plain language” of that 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.
Id. The Court emphasized that its interpretation of Rule 17 was consistent with: (1)
Supreme Court precedent;18 (2) the Advisory Committee Notes to the 1966
amendments to Rule 17;19 (3) the commentary in trusted treatises;20 and (4) the
17

The relevant portion of Rule 17 currently reads:

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).
18

In Levinson v. Deupree, 345 U.S. 648, 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.
Hess, 689 F.2d at 981 (discussing Levinson).
19

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.
20

The Eleventh Circuit cited Moore’s Federal Practice and 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

13

decisions of most other courts that had considered the issue.21 Id. at 980-81. Based
upon those considerations, the Eleventh Circuit 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. Accordingly, the case was not time-barred, because the
administratrix had been properly substituted as the real party in interest. Id. at 982.
Similarly, in the present action, and despite the fact that Horacio Pickett had
not been appointed as the administrator of Vincent Rowell’s estate on the date the

et al., Moore’s Federal Practice ¶ 17.09 (2d ed. 1982); Charles Allen Wright & Arthur R. Miller,
6C Federal Practice & Procedure § 1541 (1971).
21

The 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, 458-459 (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, 596-597 (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.

14

original complaint was filed, he was duly appointed soon thereafter, and he was duly
substituted as the real party in interest in this case. Thus, even though Mr. Pickett did
not have standing to assert § 1983 and wrongful death claims on behalf of the estate
when the original complaint was filed, the amendment of the complaint to substitute
Mr. Pickett, as the administrator of the estate, as the real party in interest relates back
to the original filing.22 This holding applies even though the same result would not
be permissible under Alabama law, and it represents an exception to the general rule
that standing must be determined as of the date the case is filed.
Accordingly, this court sustains plaintiffs’ objections, and rejects the
recommendation of the Magistrate Judge. It is ORDERED that defendants’ motions
to dismiss are DENIED, insofar as they were founded on plaintiffs’ alleged lack of
standing. It is further ORDERED that the Clerk return this case to the Magistrate
Judge for all further proceedings.
DONE this 25th day of June, 2012.

______________________________
United States District Judge
22

It should be noted that the amended complaint filed on Oct. 5, 2011, following the
appointment of Mr. Pickett as personal representative of the decedent’s estate, was docketed 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”).

15