SCEBBI et al v. ACE AMERICAN INSURANCE COMPANY

Filing 37

ORDER denying 30 Motion to Dismiss. Response to the Amended Complaint is due in 14 days. Signed by JUDGE M CASEY RODGERS on October 11, 2018. (aow)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
KENT R SCEBBI, and
ANGELA R SCEBBI,
Plaintiffs,
v.

CASE NO. 3:17cv814-MCR-CJK

ACE AMERICAN INSURANCE
COMPANY, and GEICO GENERAL
INSURANCE COMPANY
Defendants.
_________________________________/
ORDER
Defendant Geico General Insurance Company (“Geico”) has filed a Motion
to Dismiss Plaintiffs’ Amended Complaint on statute of limitation grounds. ECF
No. 30. Having reviewed the matter, the Court finds that the motion is due to be
denied.
On May 19, 2013, Kent Scebbi was injured in an automobile accident.
Plaintiffs Kent R. Scebbi and Angela R. Scebbi filed suit in state court on October
25, 2017, naming Ace American Insurance Company (“Ace”) as the sole defendant
and seeking resulting uninsured/underinsured benefits and loss of consortium
damages. Ace timely removed the case to federal court, on grounds of diversity
jurisdiction, see 28 U.S.C. § 1332, and on May 17, 2018, two days before the statute

Page 2 of 5

of limitations expired, Plaintiffs requested leave to amend the complaint, ECF No.
15, and contemporaneously filed a “Proposed Amended Complaint,” ECF No. 16,
adding Geico as a defendant. The Court granted leave to amend on May 21, 2018,
and Plaintiffs refiled their “Amended Complaint” on June 4, 2018, ECF No. 18.
Geico argues that the Amended Complaint is time-barred because the Court
order granting leave to amend and Plaintiffs’ Amended Complaint were both filed
after the five-year statute of limitations ran on May 19, 2018. Plaintiffs oppose the
motion, arguing that the Amended Complaint is timely because the motion for leave
to amend was filed on May 17, 2018, two days before the statute of limitations
expired.
In diversity, federal courts apply substantive state law and federal procedure.
See Erie R.R. v. Tompkins, 304 U.S. 64 (1938). Florida law therefore provides the
applicable statute of limitations in this case, and there is no dispute that a five-year
limitation period applies to the uninsured motorist claims at issue. See Fla. Stat.
§ 95.11(2)(b). Rule 15 of the Federal Rules of Civil Procedure governs amendments
to pleadings. Fed. R. Civ. P. 15. Ordinarily, under federal procedural rules, an
amended pleading relates back to the date of the original pleading when determining
the statute of limitations, if “permitted by the law that provides the statute of
limitations applicable to the action,” Fed. R. Civ. P. 15(c)(1)(A), and if the
CASE NO. 3:17cv814-MCR-CJK

Page 3 of 5

amendment asserts a claim or defense that arose out of the same conduct, transaction
or occurrence as alleged in the original complaint, Fed. R. Civ. P. 15(c)(1)(B). When
a new party is added, however, the amendment relates back only if the claim arose
out of the same conduct and the new party knew of the claim within the time for
accomplishing service under Rule 4(m) or should have known but for a mistake
concerning the party’s identity. See Fed. R. Civ. P. 15(c)(1)(C).
The Eleventh Circuit instructs that Rule 15(c) incorporates state law relationback rules “where, as here, state law provides the statute of limitations for the
action.” Saxton v. ACF Indus., Inc., 254 F.3d 959, 963 (11th Cir. 2001) (en banc)
(“[I]f an amendment relates back under the law that provides the applicable statute
of limitations, that amendment relates back under Rule 15(c)(1) even if the
amendment would not relate back under the federal law rules.”). Florida law, like
the federal rules, provides that the relation-back doctrine “does not apply when an
amendment seeks to bring in an entirely new party defendant to the suit after the
statute of limitations period has expired,” unless there was a mistake, misnomer, or
the real parties in interest remain the same. Caduceus Properties, LLC v. Graney,
137 So. 3d 987, 993 (Fla. 2014); Russ v. Williams, 159 So. 3d 408, 410 (Fla. 1st
DCA 2015) (same). However, Florida law recognizes that an action against a new
party is “commenced” within the statute of limitations if the motion to amend the
CASE NO. 3:17cv814-MCR-CJK

Page 4 of 5

pleading clearly identifies the new party, the facts, and the claims, and the motion is
filed before the limitation period runs, even if the order granting permission to
amend is not filed until after the statute of limitations period expires. See Totura &
Co. v. Williams, 754 So. 2d 671, 672, 680 (Fla. 2000).
Here, the circumstances do not permit the Amended Complaint to relate back
to the date of the original complaint because Geico is a new party defendant with no
shared identity or identity of interest with Ace, the original defendant. 1 Nonetheless,
the dispositive fact under Florida’s statute of limitations analysis is the date that the
motion for leave to amend was filed. Because the motion for leave to amend and
the proposed amended complaint were filed before the statute of limitations expired,
this was sufficient to “commence” the action against Geico in a timely manner. See
Totura, 754 So. 2d at 680 (stating, “the motion to amend was sufficient to stand in
place of an amended complaint and the action was, therefore, deemed commenced
as to Geico pursuant to rule 1.050 [Florida Rules of Civil Procedure] within the
applicable limitation period”); see also Hartford Cas. Ins. Co. v. Intrastate Constr.
Corp., No. 10-61064-CIV, 2015 WL 13402137, at *3 (S.D. Fla. Mar. 13, 2015)
(“[I]it is well established that an amended complaint relates back to the date the

1

As Plaintiffs argue, the “relation back” cases cited by Geico are inapplicable.

CASE NO. 3:17cv814-MCR-CJK

Page 5 of 5

motion to amend was originally filed.”). It is therefore immaterial that leave to
amend was given after the statute ran or that Plaintiffs refiled their Amended
Complaint on the docket after the expiration of the limitations period.
Accordingly, Defendant Geico’s Motion to Dismiss, ECF No. 30, is
DENIED. Geico has fourteen (14) days to respond to the Amended Complaint.
DONE AND ORDERED this 11th day of October 2018.

M. Casey Rodgers

M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE

CASE NO. 3:17cv814-MCR-CJK