Wyatt v. Georgia-Pacific LLC et al

Filing 71

ORDER granting the 50 MOTION to Dismiss filed by Quality Plus Services, Inc. All claims asserted against defendant Quality Plus are dismissed as untimely. Signed by District Judge William H. Steele on 3/13/2018. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JUSTIN WYATT,
Plaintiff,
v.
GEORGIA-PACIFIC LLC, et al.,
Defendants.

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CIVIL ACTION 17-0285-WS-MU

ORDER
This matter comes before the Court on defendant Quality Plus Services, Inc.’s Motion to
Dismiss (doc. 50). The Motion has been briefed, and is now ripe for disposition.
I.

Background.
Plaintiff, Justin Wyatt, commenced this personal injury action in the Circuit Court of

Escambia County, Alabama. In his Complaint filed on May 11, 2017, Wyatt sought to recover
for severe burn injuries sustained in a workplace accident on June 10, 2015. Specifically, Wyatt
alleged that he was erecting a scaffold when a piece of the scaffold contacted a valve above him.
The impact of the scaffold caused the valve to open, releasing sulfuric acid or other toxic
chemicals that rained down on Wyatt’s body. On that basis, Wyatt asserted state-law claims of
strict liability, negligence/wantonness, gross negligence/wantonness, and combined/concurring
negligence against defendants, Georgia-Pacific LLC, Georgia-Pacific Brewton LLC, and
Georgia-Pacific Bleached Board LLC (collectively, the “Georgia-Pacific Defendants”), as well
as Fictitious Party Defendants A through I. (See doc. 1-1, at 3-10.)
Subsequently, the Georgia-Pacific Defendants removed this action to this District Court,
predicating subject-matter jurisdiction on the diversity provisions of 28 U.S.C. § 1332. (See doc.
1.) Post-removal, on November 10, 2017, Wyatt moved for leave to amend the Complaint for
the stated reason that “[s]ince the filing of the initial Complaint, additional information has
recently been discovered that indicates QUALITY PLUS SERVICES, INC. … is a potential
defendant to this action. … As such, Plaintiff would move this Honorable Court for leave to

amend the Complaint and add QPS as an additional party.” (Doc. 29, ¶¶ 4-5.) On November 27,
2017, the Court entered an Order (doc. 37) granting Wyatt’s Motion for Leave to Amend.
Pursuant to that ruling, plaintiff’s First Amended Complaint, which added Quality Plus as a
defendant and deleted Fictitious Party Defendants “D” and “G,” became Wyatt’s operative
pleading. (See doc. 30.)
Upon being served with process, Quality Plus filed a Motion to Dismiss (doc. 50)
alleging that Wyatt’s claims against it are time-barred under the applicable statute of limitations.
Plaintiff opposes the Motion to Dismiss. (See doc. 60.) For their part, the Georgia-Pacific
Defendants indicate that they have “no statement or position” on the timeliness defense raised in
that Motion. (Doc. 62.)
II.

Analysis.
It is well-settled that “[a] Rule 12(b)(6) dismissal on statute of limitations grounds is

appropriate if it is apparent from the face of the complaint that the claim is time-barred.”
Gonsalvez v. Celebrity Cruises Inc., 750 F.3d 1195, 1197 (11th Cir. 2013) (citation and internal
quotation marks omitted); see also Jacobs v. Estefan, 705 Fed.Appx. 829, 831 (11th Cir. Aug. 7,
2017) (same). In diversity actions such as this one, the Court must apply the statute of
limitations fixed by state law. See, e.g., Mississippi Valley Title Ins. Co. v. Thompson, 802 F.3d
1248, 1251 n.2 (11th Cir. 2015) (“Pursuant to the Erie doctrine, a state’s statutes of limitation are
substantive in nature and must be applied in a suit based on diversity jurisdiction.”); Watkins v.
Capital City Bank, 711 Fed.Appx. 591 (11th Cir. Feb. 15, 2018) (“[a] federal court sitting in
diversity must apply the substantive law, including statutes of limitations, of the relevant state”).
Under Alabama law, Wyatt’s negligence, wantonness and strict liability claims against Quality
Plus are all subject to a two-year limitations period. See Ala. Code § 6-2-38(l) (“All actions for
any injury to the person or rights of another not arising from contract and not specifically
enumerated in this section must be brought within two years.”).1 Also, in contrast to the accrual
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See also Ex parte Capstone Building Corp., 96 So.3d 77, 88 (Ala. 2012) (“We
once again reaffirm the proposition that wantonness claims are governed by the two-year statute
of limitations now embodied in § 6-2-38(l).”); Singer Asset Finance Co. v. Connecticut General
Life Ins. Co., 975 So.2d 375, 382 (Ala.Civ.App. 2007) (“The statutory limitations period for
filing a negligence action is two years.”); LaBauve v. Olin Corp., 231 F.R.D. 632, 653 (S.D. Ala.
2005) (“The claims for negligence, absolute liability, strict liability, … are all subject to a twoyear limitations period under Alabama law.”).

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and tolling rules governing certain types of claims, “Alabama has no ‘discovery rule’ with
respect to negligence or wantonness actions that would toll the running of the limitations
period.” Boyce v. Cassese, 941 So.2d 932, 946 n.2 (Ala. 2006); see also Singer Asset Finance
Co. v. Connecticut General Life Ins. Co., 975 So.2d 375, 382 (Ala.Civ.App. 2007) (“The statute
of limitations begins to run from the time the plaintiff’s cause of action accrues, and there is no
‘discovery rule’ for negligence claims that would toll the running of the statute of limitations
from the time the cause of action was ‘discovered’ by the plaintiff.”). The parties quarrel over
none of these propositions.
On its face, Wyatt’s Complaint reflects that the workplace accident and injuries
animating this litigation occurred on June 10, 2015. Thus, Wyatt’s claims against Quality Plus
accrued – and Alabama’s two-year statute of limitations began running – on that date. Yet Wyatt
did not file an Amended Complaint adding Quality Plus as a defendant until November 10, 2017
(when he requested leave to amend) or November 27, 2017 (when leave to amend was granted).
Thus, Wyatt first asserted his claims against Quality Plus some two years and five months after
they accrued, which would appear to render them impermissibly tardy given the two-year
limitations period fixed by Alabama Code § 6-2-38(l).
Notwithstanding these undisputed facts and legal principles, Wyatt maintains that his
claims against Quality Plus are timely under the “relation back” doctrine. The applicable federal
rule provides, “An 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.” Rule
15(c)(1)(A), Fed.R.Civ.P. In an en banc decision, the Eleventh Circuit expressly held 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.” Saxton v. ACF Industries,
Inc., 254 F.3d 959, 963 (11th Cir. 2001). As Saxton explains, “Rule 15(c)(1) specifically
incorporates state principles of relation back into the Federal Rules of Civil Procedure.” Id. at
965 n.10. Courts in this circuit have adhered to the Saxton holding by applying state-law
relation-back principles in diversity cases, even where relation back would not otherwise be
available under the federal rules.2

See, e.g., Presnell v. Paulding County, Ga., 454 Fed.Appx. 763, 767 (11th Cir.
Dec. 13, 2011) (“Because Georgia law provides the applicable statute of limitations in this case,
(Continued)
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In accordance with binding precedent, then, this Court sitting in diversity must apply
Alabama’s relation-back rules to determine whether Wyatt’s claims against Quality Plus relate
back to the date of the original Complaint and are therefore timely. To that end, Wyatt invokes
an Alabama rule specifying that “[a]n amendment of a pleading relates back to the date of the
original pleading when … relation back is permitted by principles applicable to fictitious party
practice pursuant to Rule 9(h).” Rule 15(c)(4), Ala.R.Civ.P. In turn, Alabama’s Rule 9(h),
which has no analog in the Federal Rules of Civil Procedure, states as follows: “When a party is
ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing
party may be designated by any name, and when that party’s true name is discovered, the process
and all pleadings and proceedings in the action may be amended by substituting the true name.”
Rule 9(h), Ala.R.Civ.P. Construing Alabama’s Rule 15(c)(4) and Rule 9(h) together, the
relation-back standard under Alabama law (as recognized by both the Alabama Supreme Court
and the Eleventh Circuit in the diversity context) is as follows:
“Rules 9(h) and 15(c), Ala. R. Civ. P., allow a plaintiff to avoid the bar of a
statute of limitations by fictitiously naming defendants for which actual parties
can later be substituted. Such a substitution is allowed to relate back to the date
of the original complaint if the original complaint adequately described the
fictitiously named defendant and stated a claim against such a defendant. In
order for the substitution to relate back, the plaintiff must show that he was
ignorant of the true identity of the defendant and that he used due diligence in
attempting to discover it.”

if a proposed amendment relates back under Georgia law, then that amendment relates back
under Rule 15(c)(1)(A) even if the amendment would not relate back under federal law rules. …
Thus, we look to Georgia law to determine whether Plaintiff’s amendment should relate back to
the time of filing the original complaint, such that the statute of limitations bar is avoided.”)
(citation and internal marks omitted); Smith v. Dollar General Corp., 2017 WL 3492831, *2 n.3
(N.D. Ala. Aug. 15, 2017) (“When a federal court is sitting in diversity jurisdiction, Fed. R. Civ.
P. 15(c)(1) allows the court to apply state relation-back rules.”) (citations omitted); Todd v. City
of LaFayette, 2013 WL 1084296, *2 (M.D. Ala. Mar. 14, 2013) (recognizing that federal Rule
15(c)(1)(A) “requires application of state-law relation-back principles, including Alabama
fictitious-party practice, when state law supplies the statute of limitations”); Allums v. City of
Birmingham, 2012 WL 9245730, *7 (N.D. Ala. Aug. 31, 2012) (“Alabama’s statute of
limitations applies in this case. Accordingly, the court must look at its relation back rules.”); see
generally Rule 15, Fed.R.Civ.P., Advisory Committee Notes to 1991 Amendment (“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.”).

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Saxton, 254 F.3d at 965 (quoting Jones v. Resorcon, Inc., 604 So.2d 370, 372-73 (Ala. 1992))
(emphasis added); see also Ex parte VEL, LLC, 225 So.3d 591, 600 (Ala. 2016) (“under Rule
15(c)(4), Kyser’s amendments substituting [named defendants] for fictitiously named defendants
relate back to the date of the original complaint only if she satisfied the requirements of Rule
9(h)”). “Thus, under Alabama law, an amendment substituting an actual defendant for a
fictitious defendant relates back when: (1) the original complaint adequately described the
fictitious defendant; (2) the original complaint stated a claim against the fictitious defendant; (3)
the plaintiff was ignorant of the true identity of the defendant; and (4) the plaintiff used due
diligence to discover the defendant’s true identity.” Saxton, 254 F.3d at 965 (citation omitted);
see also Mann v. Darden, 630 F. Supp.2d 1305, 1313-14 (M.D. Ala. 2009) (same).
Quality Plus convincingly argues that the third requirement – “the plaintiff was ignorant
of the true identity of the defendant” – is not satisfied here. In particular, Quality Plus points to
Wyatt’s own deposition testimony, in which he acknowledged that his work crew had “already
built several scaffolds in there for QPS,” and explained that on the morning of the accident
Wyatt himself was instructed by his foreman to “go over there and find QPS, find out what they
want to do about a scaffold,” which Wyatt did. (Doc. 64, Exh. 1, at 194-95.) The QPS
representative directed Wyatt to place “a scaffold right here to do that work right there.” (Id.)3
This deposition excerpt establishes Wyatt’s prior knowledge (dating back to the date of the
accident itself) of Quality Plus’s true name and specific involvement in directing Wyatt and his
crew as to the placement of the scaffold that ultimately contacted the valve and caused Wyatt’s
injuries. Thus, Quality Plus’s identity was known to plaintiff from the outset of these
proceedings. In fact, plaintiff’s own testimony unequivocally establishes that Wyatt always
knew of Quality Plus’s role in operating, controlling or maintaining the premises and scaffolding
equipment at the time of the accident. See VEL, 225 So.3d at 601 (“The requirement that the
plaintiff be ignorant of the identity of the fictitiously named party has been generally explained
as follows: The correct test is whether the plaintiff knew, or should have known, or was on
notice, that the substituted defendants were in fact the parties described fictitiously.”) (citations
and internal marks omitted); Ex parte Lucas, 212 So.3d 921, 926 (Ala. 2016) (“A plaintiff is
3

There is no dispute and no question that “QPS” is an acronym for defendant
Quality Plus Services, Inc.

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ignorant of the identity of a fictitiously named defendant when, after exercising due diligence to
ascertain the identity of the party intended to be sued, he lacks knowledge at the time of the
filing of the complaint of facts indicating to him that the substituted party was the party intended
to be sued.”) (citations omitted); Ex parte Talbott, 215 So.3d 541, 546 (Ala. 2015) (similar).4
Because the third Saxton requirement is not satisfied here, Wyatt’s Amended Complaint
naming Quality Plus as a party defendant does not relate back to the date of the original
Complaint. The Amended Complaint was filed outside the two-year limitations period
governing the purely state-law claims against Quality Plus. Accordingly, it is apparent from the
face of the Amended Complaint that Wyatt’s claims against Quality Plus are time-barred, such
that dismissal is appropriate under Rule 12(b)(6).
III.

Conclusion.
For all of the foregoing reasons, Defendant Quality Plus Services, Inc.’s Motion to

Dismiss (doc. 50) is due to be, and the same hereby is, granted. All claims asserted against
defendant Quality Plus are dismissed as untimely under the applicable statute of limitations.
4

Plaintiff’s proffered justification of the timing of his amendment to substitute
Quality Plus for a fictitious defendant merely reinforces the conclusion that Wyatt was not
ignorant of Quality Plus’s identity for Rule 9(h) purposes when the original Complaint was filed.
According to plaintiff’s counsel, “Plaintiff became aware of Defendant QPS’s specific
involvement in this case upon Defendant G-P’s examination of the Plaintiff during his deposition
on November 9, 2017.” (Doc. 60, at 8.) This assertion is difficult to fathom. In answering
Georgia-Pacific’s questions during his deposition, Wyatt readily testified to facts demonstrating
his prior knowledge of Quality Plus’s “specific involvement in this case.” Nothing in plaintiff’s
deposition caused plaintiff to become aware of Quality Plus’s true identity for the first time when
the November 9 deposition was taken. To be sure, perhaps plaintiff’s counsel became aware of
Quality Plus’s specific involvement in this case upon witnessing plaintiff’s deposition testimony
on November 9, 2017. But plaintiff always knew, and his knowledge is what matters for Rule
9(h) purposes. At any rate, the above-cited authorities make plain that the test is whether
plaintiff knew or should have known, after exercising due diligence, of Quality Plus’s true
identity. That information was available to plaintiff’s counsel upon reasonable inquiry of
plaintiff himself. Yet plaintiff did not seek to add Quality Plus as a defendant until November
10, 2017, one day after Wyatt’s deposition. In short, plaintiff’s explanation that plaintiff first
learned of Quality Plus’s “specific involvement in this case” when plaintiff testified to same on
November 9, 2017 falls well short of satisfying the ignorant-of-true-identity prong of the Rule
9(h) test for relation back under Alabama law. Plaintiff knew or reasonably should have known
of Quality Plus’s identity and specific involvement in the facts and circumstances that led to
Wyatt’s injuries from the inception of this litigation; therefore, his newly-added claims against
Quality Plus cannot and do not relate back under Alabama law.

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The Clerk’s Office is directed to terminate Quality Plus as a party defendant. This action will
proceed as between plaintiff and the Georgia-Pacific Defendants.
DONE and ORDERED this 13th day of March, 2018.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

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