Goldthrip et al v. Depuy Orthopaedics, Inc. et al

Filing 33

ORDER denying 29 Motion for Leave to File a reply to defendant's reply; granting 16 Depuy's Motion for Summary Judgment as to all claims. Signed by Judge Kristi K. DuBose on 5/13/2016. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MAEOLA GOLDTHRIP and
VICKIE GOLDTHRIP,
Plaintiffs,
v.
DEPUY ORTHOPAEDICS, INC.
and JOHNSON and JOHNSON
Defendants.

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CIVIL ACTION 15-00651-KD-B

ORDER
This matter is before the Court on Defendant Depuy Orthopaedics, Inc.’s (“Defendant” or
“Depuy”) 1 Motion for Summary Judgment, Plaintiffs’ reply, and Depuy’s response. (Docs. 16,
26, and 28).2 Upon consideration, Depuy’s motion is GRANTED.
I.

Background
On or about March 22, 2013, Plaintiff Maeola Goldthrip, underwent left total hip

arthroplasty, specifically with the Depuy prodigy total hip system with the 10.5mm diameter
femoral stem. Plaintiff’s complaint alleges claims arising from an incident where Maeola
Goldthrip’s “left hip completely gave out” on or about December 23, 2013. (Doc. 1 at 4, ¶ 15).
On December 23, 2015, Plaintiff filed a products liability suit against Defendants Depuy
Orthopaedics, Inc. and Johnson and Johnson. Though the Complaint was filed on December 23,
2015, Depuy was not immediately served with the summons and complaint. Specifically, the
Complaint noted:
Stipulation to Withhold Process
Because of time constraint and the non-ability of both parties to fully negotiate
and resolve this case, Plaintiffs are filing this action to preserve their legal rights
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Co-defendant Johnson and Johnson did not join in this motion. As referenced in this Order, Defendant applies only
to Depuy.
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Plaintiff’s motion to file a reply to Defendant’s reply (Doc. 29) is DENIED.

within the statute of limitations but are withholding Service of Process in an effort
to resolve this matter without the extreme expense required by both sides. Process
will be served at a later date as agreed to by both parties.
(Doc. 1 at 12).
Plaintiffs sent a copy of the complaint to Depuy via certified mail and included a letter to
Depuy’s registered agent. In this letter, Plaintiffs stated, “If you feel that you cannot go forward
with this plan, please advise me and I will serve the Parties (or we can do a waiver of service). I
feel that it is in the best interest of both parties for us to continue the withholding of service until
all negotiations or settlement offers have been exhausted.” (Doc. 26-1 at 13).
On December 30, 2015, the Court entered a Service Order, outlining service requirements
in the Federal Rules of Civil Procedure. (Doc. 2). On February 9, 2016, Plaintiff filed a “Notice
of Withholding Service” (Doc. 3), which notified the Court that it had sent the Defendant a copy
of the complaint and notice of withholding service via certified mail. (Id.). On February 9, 2016,
the Court entered an Order noting, “Not surprisingly, Plaintiffs have cited no legal authority that
permits them to file a complaint in federal court and then essentially sit on it until they decide
that they are ready to move forth with the prosecution. (Doc. 4 at 1). The Court then cited to the
Federal Rules of Civil Procedure and the Local Rules explaining, “These rules make clear that
simply filing a complaint and allowing it to languish on the Court’s docket is not an option.”
(Doc. 4 at 1-2). On February 22, 2016, Depuy was served with the summons and complaint via a
process server. (Doc. 7 at 2). Depuy’s service occurred roughly 90 days after the Complaint was
filed. On March 28, 2016, Depuy filed a motion for summary judgment, arguing that Plaintiffs
failed to commence this action within the applicable statute of limitations period.

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II.

Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). Rule 56(c) provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party
may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
FED.R.CIV.P. Rule 56(c).
Defendant, as the party seeking summary judgment bears the “initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If the nonmovant fails to make “a sufficient showing on an

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essential element of her case with respect to which she has the burden of proof,” the movant is
entitled to summary judgment. Celotex, 477 U.S. at 323. In assessing whether the nonmovant
has met its burden, “the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter….Instead, ‘[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.’” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 999 (11th Cir. 1992).
III.

Analysis
Before addressing the parties’ substantive contentions, the Court must determine what

jurisdiction’s law governs the claims in this diversity action. The Eleventh Circuit has explained:
In a suit where federal jurisdiction is founded on diversity of citizenship, the
statute of limitations is governed by state law under the doctrine of Erie R.R. Co.
v. Tompkins, 304 U.S. 64, 79, 58 S.Ct. 817, 823, 82 L.Ed. 1188 (1938). The
applicable statute of limitations must come from state law. Guaranty Trust Co. v.
York, 326 U.S. 99, 110, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945). And the law
governing when the suit was commenced for purposes of the statute of limitations
is also governed by state law. Walker v. Armco Steel Corp., 446 U.S. 740, 748,
100 S.Ct. 1978, 1984, 64 L.Ed.2d 659 (1980); Ragan v. Merchants Transfer &
Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949).
Aucoin v. Connell, 209 F. App’x 891, 892-93 (11th Cir. 2006).3 It appears from the Complaint
and the parties’ briefing, that Maeola Goldthrip’s injuries occurred in Alabama. Moreover, all
parties rely primarily on Alabama law in making their respective arguments. Therefore, the
Court will apply Alabama law to the claims in this action.
Plaintiff’s complaint contains the following allegations: 1) “Strict Product Liability –
Product Defect”; 2) Strict Liability – Failure to Warn; 3) Negligence – Product Defect; 4)
Negligence - Failure to Warn; and 5) Loss of Consortium. (Doc. 1). The parties do not dispute
that all of Plaintiffs’ claims have a two year statute of limitations.4

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The Court notes that unpublished opinions are persuasive rather than binding.
Defendants point out that each of Plaintiffs’ claims sound in negligence or the Alabama Extended Manufacturer’s

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Plaintiffs filed this action on December 23, 2015, exactly two years to the day after the
incident giving rise to this Complaint took place. Depuy was not served with the summons and
complaint until February 22, 2016, roughly 90 days after the action was filed. Depuy argues that
as a result of the delay in service, Plaintiffs failed to commence their action within Alabama’s
two-year statute of limitations applicable to those claims alleged.
Plaintiffs counter that their efforts to communicate regarding settlement with Defendant,
combined with their delivery of the complaint via certified mail, satisfy their burden to
commence their action within the applicable statute of limitations. (Doc. 16-1). Specifically,
Plaintiffs argue that Defendant’s participation in communication and pre-discovery, despite
having not been served with the summons and the Complaint, amounts to mutual assent to an
agreement to withhold service. The Court does not agree. The parties did not enter into a tolling
agreement or an agreement to withhold service of process. Depuy’s litigation paralegal Betsy
Speigel’s unchallenged declaration and the exhibits attached thereto confirm that none of
Depuy’s communications with Plaintiffs included an agreement to withhold service. (Doc. 16-1).
As no such agreement existed, he Court next turns to whether Plaintiffs properly and
timely commenced their action, for the purposes of the statute of limitations, under Alabama law.
The Alabama Supreme Court has held:
This Court has repeatedly cautioned, however, that mere filing, alone, is not
always sufficient to commence an action and to toll the running of the limitations
Liability (AEMLD) claims because Alabama adopted the AEMLD in place of a system of strict product liability.
(Doc. 16 at 6-7). See Bodie v. Purdue Pharma. Co., 236 F. App’x 511, 517 n.9 (11th Cir. 2007) (Alabama “does not
adhere to a system of strict product liability, but instead follows a modified version of strict liability known as the
Alabama Extended Manufacturer’s Liability Doctrine (‘AEMLD’).”) (citing Sears, Roebuck & Co. v. Haven Hills
Farm, 395 So. 2d 991, 994 (Ala. 1981)); see Batchelor v. Pfizer, Inc., 2013 WL 3873242, at *2 (M.D. Ala. July 25,
2013) (“Alabama has not adopted a no-fault concept of products liability and has instead retained a fault-based
system known as the [AEMLD].”) (citations omitted).

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period: “Although Rule 3, Ala. R. Civ. P., states that ‘[a] civil action is
commenced by filing a complaint with the court,’ this Court has held that the
filing of a complaint is not the sole factor in determining when an action is
‘commenced.’ A major function of Rule 3, Ala. R. Civ. P., is to identify, with
certainty, the specific time when a civil action is initiated. The filing of a
complaint is, therefore, a significant factor in commencing an action and
suspending the operation of the applicable statute of limitations; however, it is not
the sole factor. Ward v. Saben Appliance Co., 391 So.2d 1030, 1032 (Ala.1980).
This Court has held that the filing of a complaint, standing alone, does not
commence an action for statute-of-limitations purposes.”
Ex parte Courtyard Citiflats, LLC, No. 1140264, 2015 WL 3648518, at *2 (Ala. June 12, 2015),
cert. denied sub nom. Arrington v. Courtyard Citiflats, LLC, 136 S. Ct. 1194 (2016)(citing Ex
parte East Alabama Mental Health–Mental Retardation Bd., Inc., 939 So.2d 1, 3 (Ala.2006)).
Though it is generally the case that the filing of the complaint constitutes the
“commencement of the action,” “such filings call for an implied demand for immediate service.
When, as here, the plaintiff intentionally interferes with this service by ordering that service be
withheld, then the filing will not constitute the commencement of the action, since there is no
intent to prosecute the claim at that time.” Freer v. Potter, 413 So. 2d 1079, 1081 (Ala. 1982). In
the Complaint, Plaintiff unambiguously states that it intends to withhold service. (Doc. 1 at 12).
This evidences a lack of intent to immediately serve the Defendant. Though Plaintiffs argue that
they sent Depuy a copy of the complaint via certified mail shortly after filing the complaint, this
does not satisfy the requirements of proper service.
In Ward v. Saben Appliance Co., the plaintiff’s attorney filed a timely complaint, but he
directed the clerk to withhold personal service until he could obtain additional information on the
case. 391 So. 2d 1030 (Ala. 1980). Defendants were eventually served nearly four months later.
There, the Alabama Supreme Court held that while the filing of a complaint is a significant
factor in commencing an action and suspending the operation of the applicable statute of
limitations, it is not the sole factor to be considered. The Court concluded by stating:

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We hold that in the present case the action was not ‘commenced’ when it was
filed with the circuit clerk because it was not filed with the bona fide intention of
having it immediately served. To hold otherwise would permit a party to extend
unilaterally the period of limitations by an oral request that actual service be
withheld, thereby giving that party an additional period of time within which he
could conduct an investigation to determine whether in fact, he had a claim. To
permit this would violate the fundamental concept of repose found within every
statute of limitations.
Id. at 1035.
Upon consideration of the foregoing Alabama law, Plaintiffs failed to commence their
action when they filed the Complaint on December 23, 2015, because they did not immediately
serve or have the intent to immediately serve the Defendant. Thus, Plaintiffs failed to commence
their action within the limitations period that ended on December 23, 2015. As a result,
Defendant’s motion for summary judgment is due to be granted. Though the results are
undoubtedly harsh for the Plaintiffs, the law of Alabama compels this outcome.
IV.

Conclusion
Upon consideration of the foregoing, Defendant Depuy Orthopaedics, Inc.’s motion for

summary judgment as to all claims (Doc. 16) is GRANTED.
DONE and ORDERED this 13th day of May 2016.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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