M.W. et al v. Ford Motor Company et al

Filing 79

ORDER granting in part and denying in part #9 motion to dismiss. Signed by Judge Susan C Bucklew on 8/12/2015. (KTW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
M.W., ANASTAZIA J. WOOD, JUSTIN
WOOD and SUZANNE MCCARTHY,
Plaintiffs,
v.

Case No: 8:14-cv-3132-T-24TBM

FORD MOTOR COMPANY,
Defendants.

ORDER
This cause comes before the Court on Defendant Ford Motor Company’s Motion to
Dismiss (Dkt. 9), Plaintiffs’ Opposition to Ford Motor Company’s Motion to Dismiss (Dkt. 29),
Plaintiffs’ supplemental memorandum of law and facts in opposition to Ford’s Motion to Dismiss
(Dkt. 63), and Ford Motor Company’s supplemental authority in support of its motion for summary
judgment (Dkt. 62). Pursuant to this Court’s order dated May 12, 2015, Ford’s motion to dismiss
(Dkt. 9) was converted to a motion for summary judgment in order for the Court to resolve the
issue of whether Plaintiffs’ action was untimely filed and barred by the applicable statute of
limitations. The Court, having reviewed the motion, and responses, along with the attachments
including the depositions as well as the applicable case law, concludes that the motion should be
granted in part and denied in part.
I.

BACKGROUND
Plaintiffs originally brought this action in state court, against Ford Motor Company

(“Ford”), Enterprise Holdings, Inc., EAN Trust, Enterprise Leasing Company of Florida, LLC,
and Enterprise Leasing Company of Orlando, LLC (the “Enterprise Defendants”), for product
liability and negligence. On August 4, 2015, the Enterprise Defendants were dismissed with

prejudice. Plaintiffs alleged that on August 16, 2010, a defect in a 2009 Ford Focus and negligence
in the design and testing of the vehicle caused it to unexpectedly roll down Plaintiff McCarthy’s
driveway, injuring Plaintiffs M.W. and McCarthy.
On August 6, 2014, while this action was in state court, Plaintiffs’ attorney and his legal
assistant (the “Alford Firm”) electronically transmitted several documents to the Circuit Court for
the Thirteenth Judicial Circuit in and for Hillsborough County, Florida via the Florida courts’
electronic filing portal (“e-portal”). The submission included a complaint, a civil docket sheet, and
a form entitled “Request for Division Assignment,” (the “August 6th submission”). Along with
these submissions, Plaintiffs submitted a filing fee. The complaint had a time stamp: “Filing #
16761550 Electronically Filed 8/06/2014 09-00:24 AM.” (Dkt. 63-1). Moments after the filing,
the Alford Firm received an email from the e-portal stating that the three documents submitted at
“08/06/2014 09:00:24 AM” were received. (Dkt. 63-4). The email provided an e-portal reference
number and stated “[w]e will notify you when processing is complete.” Id. Shortly thereafter, a
Hillsborough County clerk reviewed the August 6th submission, determined that the Alford Firm
failed to provide several necessary data elements, and moved the August 6th submission to the
Hillsborough County clerk’s pending queue in the e-portal (the “Pending Queue”). At
approximately 9:08 a.m., the Alford Firm received a second email from the e-portal with the
subject line “Filing #16761550 Not Filed – Please Correct Filing in the E-Filing Portal Pending
Queue.” (Dkt. 63-6). The second email stated “[y]our filing with the Hillsborough County, Florida
Civil Division needs to be corrected before it can be filed” and directed the Alford Firm to make
the following corrections: “[p]lease enter name and address in the Parties Screen for all parties
listed on the Complaint.” Id. The second email noted that the Alford Firm would have up to five
business days to correct and resubmit the August 6th submission. The email also advised that the

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August 6th submission “need[ed] to be corrected and ha[d] been moved to the Clerk’s Pending
Queue in accordance with the Florida Supreme Court Standards for Electronic Access to the
Courts, section 3.1.11, Local Document Receiving.” Id. Upon receiving the second email,
Stephanie Lackey, the legal assistant for the Alford Firm, called the Hillsborough County Clerk’s
Office (“HCCO”) and spoke to a clerk about making the required corrections. The clerk advised
Lackey that she needed to “put all parties listed on the complaint,” “put the additional defendants,”
and “file it.” (Dkt. 66-1, 28:17-21). After speaking with the clerk, Lackey asserts that she “went
back into the portal, filed it and listed the defendants” and “believed it to be corrected.” (Id. at
28:22-29:5). Thereafter, the Alford Firm did not make any additional attempts to contact the
HCCO or log into the e-portal to check if the corrections were made. The Alford Firm did not
receive any further communications from the e-portal or the HCCO until August 22, 2014. The eportal activity records do not contain any information indicating that the Alford Firm made any
corrections to the August 6th submission or conducted any activity on the e-portal related to the
August 6th submission after it was moved to the Pending Queue at approximately 9:08 a.m. on
August 6, 2014. (See Dkt. 62-1).
On August 22, 2014, the August 6th submission was filed for judicial review. At
approximately 11:32 a.m. on August 22nd the Alford Firm received an email from the e-portal
stating:
Please be advised that [the August 6th submission] was not corrected and has been
Filed for Judicial Review in accordance with the Florida Supreme Court Standards
for Electronic Access to the Courts, section 3.1.11, Local Document Receiving.
This action has been taken for the following reason:
On 8/6/14, [the August 6th submission] was returned for corrections to be made
within 5 business days. As of 8/22/14, no correction has been received. This filing
will not be filed/processed.

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(Dkt. 62-4). Upon receiving the email, Lackey called the HCCO and spoke to a clerk who advised
her that the corrections were not made and that the complaint would need to be re-filed. (Dkt. 661, 33:18-20). Charles Wayne Alford, an attorney at the Alford Firm, also spoke to the clerk and
was advised that Plaintiff would need to re-file the complaint, and to state within that complaint
the circumstances of the August 6th submission. (Dkt. 66-1, 36:21-24).
Pursuant to the clerk’s instructions, on August 22, 2014, the Alford Firm submitted a
second complaint through the e-portal. The complaint contained a time stamp stating: “Filed
8/22/2014 06:27:46 PM.” (Dkt. 1-2). The complaint was identical to the first complaint except it
contained an explanation of the circumstances of the August 6 filing including that “it was filed
on August 6, 2014, and an error with the e-portal filing occurred.” (Id., ¶8). This complaint was
docketed on the HCCO’s case maintenance system.
In the instant motion, Defendant Ford moves to dismiss the August 22, 2014 complaint on
the basis that Plaintiffs’ action is time-barred by the applicable statute of limitations. Because the
parties presented matters outside the pleadings in the motion to dismiss and the response, the Court
converted Ford’s motion to dismiss to a motion for summary judgment on May 12, 2015.
II.

STANDARD OF REVIEW
Summary judgment is appropriate “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). The Court must draw all inferences from the evidence in the light most favorable to the nonmovant and resolve all reasonable doubts in that party’s favor. See Porter v. Ray, 461 F.3d 1315,
1320 (11th Cir.2006) (citation omitted). The moving party bears the initial burden of showing the
Court, by reference to materials on file, that there are no genuine issues of material fact that should
be decided at trial. See id. (citation omitted). When a moving party has discharged its burden, the

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non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions,
answers to interrogatories, and admissions on file, designate specific facts showing there is a
genuine issue for trial. See id. (citation omitted).
III.

DISCUSSION
A.

Timeliness of the Action Pursuant to Fla. Stat. § 95.11(3)(e)

The parties do not dispute that Fla. Stat. § 95.11(3)(e) governs the instant action. An action
for products liability under § 95.11(3)(e) must be begun within the four-year limitations period,
with the period running from the date that the facts giving rise to the cause of action were
discovered, or should have been discovered with the exercise of due diligence. See Burr v. Philip
Morris USA Inc., No. 8:07-CV-01429-MSS, 2012 WL 5290164, at *5 (M.D. Fla. Sept. 28, 2012)
aff’d, 559 F. App’x 961 (11th Cir. 2014). The statute bars untimely claims for injury from a product
based on, inter alia, negligence, implied warranty, and strict liability. McElroy by McElroy v.
Firestone Tire & Rubber Co., 894 F.2d 1504, 1506 (11th Cir. 1990) (citations omitted).
The parties agree that the four-year limitations period imposed by Fla. Stat. § 95.11(3)(e)
expired on August 16, 2014. However, the parties dispute whether Plaintiffs timely filed the
complaint. Plaintiffs argue the action was timely filed on August 6, 2014, when the Alford Firm’s
submitted the complaint to the e-portal. Defendant asserts this action was untimely filed on August
22, 2014, the filing date stamped on the complaint that was docketed in the underlying state court
action. Quite simply, if the Plaintiffs are correct, the action is timely. If the Defendant is correct,
the action is untimely and barred by the four-year statute of limitations.
Electronic filing is intended to make the filing of documents in a court case easier and
quicker for the parties. It is intended to make it easier for the court and the clerk to keep track of
the filings and better manage the documents in a court case. However, because of a series of

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mistakes by both Plaintiffs’ counsel and the Hillsborough County Clerk’s Office (HCCO), the
electronic filing of the complaint in this case has created uncertainty and controversy, resulting in
time and expense for the parties and the court.
Plaintiffs argue the complaint was “filed” on August 6, 2014. (Dkt. 63, p. 2). However,
the undisputed facts show that the August 6th complaint was never accepted or downloaded into
the HCCO’s case maintenance system because the August 6th submission was missing data for
party names and addresses. The August 6th complaint was moved to the clerk’s Pending Queue in
accordance with the Florida Supreme Court Standards for Electronic Access to the Courts,
§3.1.13. The e-portal activity log shows that the missing information was never uploaded by
Plaintiffs’ counsel into the e-portal. See Dkt. 62-1 (the “e-portal activity log”). Further, the August
6th submission’s status never reflected a “filed” status in the e-portal.
Plaintiffs’ argument that Plaintiffs’ counsel made the necessary corrections to the August
6th filing is unsupported by the facts in the record. While Lackey testified that she “believed [the
errors] to be corrected”, (Dkt. 66-1, 29:4-5), Plaintiffs do not offer any facts supporting Lackey’s
belief that the corrections were properly entered in the e-portal. When asked how she knew the
corrections had been completed, Lackey responded, “[t]o the best of my knowledge, I just believed
it to be corrected.” (Dkt. 66-1, 31:9-10). The e-portal activity log does not show any activity by
the Alford Firm after the Alford Firm received the email notification that the August 6th filing had
been moved to the Pending Queue.1 Plaintiffs point to HCCO clerk Veronica Phillips’ deposition
testimony that “computers are computers” to suggest that “mistakes can be made in attempting to
correct a filing.” (Dkts. 63 at 10; 66-2, 61:10-11). However, Plaintiffs’ vague argument does not

1
A filing may be placed in a pending queue for any reason that prevents the filing from being accepted into the clerk’s
case maintenance system. See Florida Supreme Court Standards for Electronic Access to the Courts, §3.1.13.

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provide any factual support for their assertion that a computer error could have occurred when
Lackey attempted to correct the August 6th filing.
Defendant argues that the complaint of record was file stamped August 22, 2014 which is
beyond the applicable statute of limitations. However, despite the fact that Plaintiffs’ counsel erred
in not making the correction as discussed above, the HCCO made a series of errors that resulted
in the docketed complaint of record having a time stamp of August 22, 2014.
According to the Florida Supreme Court Standards for Electronic Access to the Courts,
Section 3.1.14, “[f]or purposes of determining timeliness, a filing shall be deemed filed on the date
and time the electronic filing is received at the portal.” That date was August 6, 2014. “The portal’s
official file stamp date and time will be affixed in the upper left hand corner.” The date and time
affixed to the complaint was “08/06/2014 09:00:24AM.” “A ‘Filing received’ receipt email will
be sent to the filer.” Charles Wayne Alford, Plaintiffs’ counsel, received an email on August 6,
2014, stating the following three documents were submitted to the Hillsborough Circuit Civil on
08/06/2014 09:00:24AM: Civil Cover Sheet, Request for Division Assignment and Complaint.
(See Dkt. 63-4). The email also verified the receipt of Filing Fees of $403.00. Id.
Because the filing needed to be corrected (all Defendant parties had not been listed in the
parties screen) the filing was placed in the Pending Queue awaiting the corrections. Plaintiffs’
counsel was notified by email on August 6, 2014 at 9:08AM: “[p]lease be advised that Filing
Reference #16761550 needs to be corrected and has been moved to the Clerk’s Pending Queue in
accordance with the Florida Supreme Court Standards for Electronic Access to the Courts, section
3.1.11, Local Document Receiving.” (Dkt. 63-6). Plaintiffs’ counsel was told in the same email
that they had up to five business days to correct and resubmit the filing. Id.

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According to the Florida Supreme Court Standards for Electronic Access to the Courts,
Section 3.1.13, “[t]he filing will remain in a pending queue for no more than 5 (five) business
days, after which time the filing will be docketed, as filed, and processed for judicial review.”
However, the August 6th filing was never docketed as filed. Instead, the HCCO appears to have left
the filing in the Pending Queue for twelve (12) business days (August 6-August 22).2
Even then, rather than docketing the August 6thcomplaint as filed on August 22nd, the
HCCO notified Plaintiffs’ counsel to refile the complaint with an explanation of what had happened.
When Plaintiffs’ counsel refiled the complaint in the e-portal a new document number, a new date
and a new time were stamped on the complaint resulting in the docketed complaint having a date
stamp of August 22, 2014.
The HCCO should have docketed the August 6th complaint with the missing party
information after 5 business days and the docketed complaint would have maintained the August 6,
2014, time stamp. By leaving the August 6th complaint in the Pending Queue for twelve business
days and by not docketing it as filed, the HCCO did not comply with the Florida Supreme Court
Standards for Electronic Access to the Courts and their failure to comply created this dispute. As
Douglas R. Bakke, a chief deputy Clerk of the HCCO points out in his deposition: “It is the fact
that we didn’t comply with the standard to file the document. We left it hanging there at the portal.”
(Dkt.66-4, pg.18). When a filer submits a complaint that does not contain all necessary information
“[i]t should go into the pending queue and [the clerk should] notify the filer, and they have five
business days to correct it. If they don’t make the correction, then [the clerk] should bring it down
into [the case maintenance system]. The filing will be docketed as filed.” (Dkt. 66-4 pg.25).

2
Had the Clerk docketed the filing after five business days as the Rule mandates, the August 6th complaint would
have been docketed on August 13, 2014, still within the statute of limitations.

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B.

Equitable Tolling

Plaintiffs argue that equitable tolling is warranted because the complaint was timely filed
and an error was made by the Clerk’s office in the processing of the complaint. Plaintiffs complain
that it would be manifestly unfair to punish Plaintiffs for an error/mistake made by the clerk.
Although they do not elaborate further, the Court assumes Plaintiffs’ basis for equitable tolling is
that the HCCO erred in failing to docket the August 6th submission in accordance with Section
3.1.13 of the Florida Supreme Court Standards for Electronic Access to the Courts.3 Section
3.1.13 states:
When information has been submitted electronically to the Clerk of Court’s Office,
via the Florida Courts E-Portal, the Clerk of Court will review the filed document
and determine whether it contains the required information for placement into the
clerk’s case maintenance system. If during the local document receiving process a
determination is made that the filed document conflicts with any court rules or
standards, then the clerk shall place the filed document into a pending queue. A
filing may be placed in a pending queue for any reason that prevents the filing from
being accepted into the clerk’s case maintenance system, e.g. documents that
cannot be associated with a pending case; a corrupt file; or an incorrect filing fee.
Once placed in a pending queue, the clerk shall attempt to contact the filer and
correct the identified issue(s). The filing will remain in a pending queue for no
more than 5 (five) business days, after which time the filing will be docketed, as
filed, and processed for judicial review.
Id.
Equitable tolling is an extraordinary remedy to be applied sparingly, and is appropriate
when a plaintiff untimely files due to extraordinary circumstances that are both beyond her control
and unavoidable even with diligence. See Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006)
(citing Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999)) (quotations omitted). Even
where equitable tolling may be applied to a certain type of claim, it cannot be applied when an

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See Florida Supreme Court Standards for Electronic Access to the Courts, Sec. 3.0 (adopted in In re Statewide
Standards for Electronic Access to the Courts, Fla. Admin. Order No. AOSC09–30) (Version 14.0 Adopted
modifications, May 2014, found at: http://www.flcourts.org/core/fileparse.php/255/urlt/updated-e-access-standardsmay2014v14.pdf).

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untimely filing could have been avoided with due diligence. See Motta ex rel. A.M. v. United
States, 717 F.3d 840, 846-47 (11th Cir. 2013); see also Wilson v. Standard Ins. Co., No. 14-10825,
2015 WL 3477864, at *3 (11th Cir. June 3, 2015) (finding that equitable tolling generally does not
apply in the absence of diligence). The plaintiff bears the burden of establishing that equitable
tolling of the statute of limitations is justified. See Bost v. Fed. Express Corp., 372 F.3d 1233, 1242
(11th Cir. 2004); Jones v. United States, 304 F.3d 1035, 1040 (11th Cir. 2002); Carter v. West
Publ’g Co., 225 F.3d 1258, 1265 (11th Cir. 2000).
The undisputed facts show that the Alford Firm was aware the August 6th submission
required corrections minutes after it was transmitted. Although Plaintiffs argue the Alford Firm
“sincerely believe[d]” Lackey made the corrections, the record does not contain any evidence that
the corrections were actually made or that the Alford Firm attempted to verify whether the
corrections were actually made in the e-portal. Had the corrections been made, the August 6th
complaint would have presumably been moved from the Pending Queue and downloaded into the
HCCO maintenance system and docketed.
However, Plaintiffs are entitled to rely on the Florida Supreme Court Standards for
Electronic Access to the Courts, and the fact that any clerk of court who has been approved for
electronic filing will follow those standards. The HCCO did not follow those standards nor had
the two clerks handling this filing even seen the standards. (See Dkts. 66-2, 45:10-13; 66-3. 45:2324). Section 3.1.13 of those standards states that once placed in a pending queue for corrections,
the filing will remain in the pending queue for not more than five business days after which time
the filing will be docketed as filed and processed for judicial review. Had the HCCO followed the
Supreme Court standard, the complaint would have been docketed on August 14, 2015—within
the statute of limitations. Furthermore, the e-portal’s official time/date stamp would have been

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August 6, 2014, again within the statute of limitations.
In summary, the record clearly indicates that Plaintiffs’ counsel did not act diligently in
correcting the mistake that was made when the complaint was timely filed in the e-portal on August
6, 2014. However, if this action appears to be untimely because of the August 22, 2014 date
stamped on the docketed complaint, Plaintiffs’ lack of diligence did not cause this problem. The
HCCO leaving the complaint in the Pending Queue for twelve business days rather than five, not
docketing the filed complaint after five business days even though the corrections had not been
made, and then instructing Plaintiffs’ counsel to file a new complaint on August 22, 2014 resulting
in a new time stamp of August 22nd, caused the problem. If the filing date of this complaint was
found to be August 22, 2014, rather than August 6, 2014, equitable tolling of the statute of
limitations for the time frame of August 6, 2014 and August 22, 2014 is justified.
C.

Ford’s Motion to Strike

Ford requests the Court strike paragraphs 32-56 of the Amended Complaint because they
contain immaterial, impertinent, and scandalous matters. Pursuant to Fed. R. Civ. P. 12(f), the
Court may strike “an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Id. However, “[a] motion to strike will ‘usually be denied unless the allegations have no
possible relation to the controversy and may cause prejudice to one of the parties.’” Scelta v.
Delicatessen Support Services, Inc., 57 F.Supp.2d 1327, 1347 (M.D. Fla.1999) (quoting Seibel v.
Society Lease, Inc., 969 F. Supp. 713, 715 (M.D.Fla.1997)).
Here, Plaintiffs allege that a park-to-reverse defect in 2009 Ford Focus caused the rented
vehicle to unexpectedly roll down Plaintiff McCarthy’s driveway, injuring Plaintiffs M.W. and
McCarthy. Thus, Plaintiffs’ allegations regarding the nature of park-to-reverse defects, any
accident records related to such defects, and Ford’s knowledge thereof, should be related to the

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2009 Ford Focus. However, as discussed below, the Court will dismiss Count I of the Amended
Complaint. Therefore, Plaintiff’s request to strike paragraphs 32-56 of the Amended Complaint is
denied as moot.
D.

Ford’s Motion for More Definite Statement

Ford’s motion to dismiss argues that Count One of the Amended Complaint should be
dismissed because it improperly commingles Defendants and claims, and because it does not
identify which allegations are directed to Ford and which allegations are directed to the Enterprise
Defendants. Alternatively, Ford moves for a more definite statement pursuant to Fed. R. Civ. P.
12(e).
Rule 8(a) of the Federal Rules of Civil Procedure requires a “short and plain statement of
the claim” that “will give the defendant fair notice of what the plaintiff's claim is and the ground
upon which it rests.” Count One contains several claims, including strict liability for product defect
and failure to warn. (See Dkt. 2, ¶¶ 62-63, 65-66). Count One also includes multiple Defendants,
and does not specify which allegations pertain to which Defendant. (See Dkt. 2, ¶ 63). The
Enterprise Defendants have now been dismissed. Plaintiffs should file a second amended
complaint that gives Ford fair notice of what Plaintiffs’ claims against it are and the grounds upon
which they rest. The second amended complaint shall also limit its allegations to the vehicle in
question, the 2009 Ford Focus. Therefore, Count One of the Amended Complaint should be
dismissed without prejudice.
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant Ford Motor
Company’s Motion to Dismiss (Dkt. 9) is granted in part and denied in part as follows:
1) To the extent that Defendant Ford Motor Company’s Motion to Dismiss (Dkt. 9),
converted to a motion for summary judgment, requests dismissal of the action on the

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basis that it is time-barred by the applicable statute of limitations, the motion is
DENIED.
2) To the extent that Ford’s motion to dismiss requests dismissal of Count One of the
Amended Complaint on the basis that Plaintiffs improperly comingle Defendants and
claims therein, the motion is GRANTED without prejudice. Plaintiffs shall file a
second amended complaint that clearly states Plaintiffs’ claims against Ford in separate
counts and identifies the specific allegations that support each claim by August 26,
2015. The second amended complaint shall limit its allegations regarding the nature of
park-to-reverse defects, any accident records related to such defects, and Ford’s
knowledge thereof, to the subject vehicle, the 2009 Ford Focus.
3) To the extent that Ford’s motion to dismiss requests that immaterial, impertinent, and
scandalous matters be stricken from the Amended Complaint, the motion is DENIED
as moot.
DONE AND ORDERED at Tampa, Florida, this 12th day of August, 2015.

Copies: Counsel of Record

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