GIBSON v. TJX Companies, Inc. et al
ORDER granting 28 Motion to Dismiss Plaintiff's claims against Defendant Universal Vending Management, LLC. Ordered by US DISTRICT JUDGE CLAY D LAND on 02/02/2017. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
TJX COMPANIES, INC., et al.,
CASE NO. 4:16-cv-209 (CDL)
O R D E R
Plaintiff Stephanie Gibson alleges that she suffered injuries
Georgia on June 19, 2014.
Am. Compl. ¶ 27, ECF No. 17.
brought this action against Defendant TJX Companies, Inc. on May
She filed an Amended Complaint on October 13, 2016,
adding claims against Defendant Universal Vending Management, LLC.
Gibson’s claims against it are untimely.
Gibson did not respond
to Universal Vending’s motion to dismiss.
As discussed below, the
Court grants Universal Vending’s motion to dismiss (ECF No. 28).
Georgia has a two-year statute of limitations for personal
O.C.G.A. § 9-3-33.
Gibson’s claims accrued on the
date of her injury, June 19, 2014, and the statute of limitations
for her claims expired on June 19, 2016.
Gibson filed her initial
Complaint on May 5, 2016, but she did not name Universal Vending
as a Defendant until more than 160 days later, on October 13,
She did not serve Universal Vending until more than 180
Universal Vending are barred by the statute of limitations unless
they relate back to her initial Complaint.
Under Federal Rule of Civil Procedure 15(c)(1)(A), the Court
may look to Georgia law to determine whether Gibson’s amendment
relates back to her initial Complaint.
Presnell v. Paulding Cty.,
454 F. App’x 763, 767 (11th Cir. 2011) (per curiam); see also
Saxton v. ACF Indus., Inc., 254 F.3d 959, 963 (11th Cir. 2001)
(holding that “federal courts sitting in diversity [may] apply
relation-back rules of state law where . . . state law provides
the statute of limitations for the action”).
Under Georgia’s rule
on relation back, O.C.G.A. § 9-11-15(c), an amended complaint that
adds a new defendant relates back to the original complaint if the
claim “arises out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading” and
“if within the period provided by law for commencing the action
received such notice of the institution of the action that he will
not be prejudiced in maintaining his defense on the merits, and
(2) knew or should have known that, but for a mistake concerning
brought against him.” O.C.G.A. § 9-11-15(c).
Here, Gibson did not allege in her Amended Complaint that
limitations period or that it knew or should have known that this
action would be brought against it but for a mistake concerning
Therefore, Gibson’s claims against Universal Vending do not relate
back under O.C.G.A. § 9-11-15(c), which means that those claims do
not relate back under Rule 15(c)(1)(A).
Cf. Presnell, 454 F.
App’x at 768 (finding that the district court did not abuse its
discretion in determining that a proposed amendment was futile
because the proposed claims against new defendants did not relate
back to the original complaint).
Gibson also did not allege in her Amended Complaint that
Universal Vending received notice of this action within ninety
days after she filed her initial Complaint on May 5, 2016.
Complaint under Rule 15(c)(1)(C).
Under that Rule, an amendment
that changes the party against whom a claim is asserted relates
back to the initial complaint if it “asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out--in the original pleading” and if the
party to be brought in by amendment “received such notice of the
action that it will not be prejudiced in defending on the merits”
and “knew or should have known that the action would have been
Fed. R. Civ. P. 15(c)(1)(B)-(C); see also Fed.
R. Civ. P. 4(m) (establishing 90-day time limit for service).
relate back under Rule 15(c)(1)(C).
Cf. Mendez v. Jarden Corp.,
503 F. App’x 930, 937 (11th Cir. 2013) (per curiam) (finding that
the plaintiff’s claims against a new defendant did not relate back
to the original complaint under Rule 15 because she did not show
that the new defendant received notice of her complaint within the
time required by Rule 4(m)).1
As discussed above, Gibson’s claims against Universal Vending
Universal Vending’s Motion to Dismiss (ECF No. 28)
is therefore granted.
IT IS SO ORDERED, this 2nd day of February, 2017.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
To the extent that Gibson seeks to circumvent the statute of
limitations by asserting claims against Universal Vending on behalf of
the United States under the Medical Care Recovery Act, 42 U.S.C. § 2651,
those claims fail because the Medical Care Recovery Act on its face only
provides a right of recovery for the United States and Gibson does not
allege that she has been authorized to bring any claims under the statute
on behalf of the United States.
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