GIBSON v. TJX Companies, Inc. et al

Filing 37

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
COLUMBUS DIVISION
STEPHANIE GIBSON,

*

Plaintiff,

*

vs.

*

TJX COMPANIES, INC., et al.,

*

Defendants.

CASE NO. 4:16-cv-209 (CDL)

*

O R D E R
Plaintiff Stephanie Gibson alleges that she suffered injuries
when

she

slipped

and

fell

Georgia on June 19, 2014.

at

a

Marshalls

store

in

Columbus,

Am. Compl. ¶ 27, ECF No. 17.

Gibson

brought this action against Defendant TJX Companies, Inc. on May
5, 2016.

She filed an Amended Complaint on October 13, 2016,

adding claims against Defendant Universal Vending Management, LLC.
Universal

Vending

filed

a

motion

to

dismiss,

contending

that

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
injury claims.

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,

2016.
days

She did not serve Universal Vending until more than 180
later,

on

November

2,

2016.

Gibson’s

claims

against

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
against

him

the

party

to

be

brought

in

by

amendment

(1)

has

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
the

identity

of

the

proper

party,

the

action

brought against him.” O.C.G.A. § 9-11-15(c).

2

would

have

been

Here, Gibson did not allege in her Amended Complaint that
Universal

Vending

received

notice

of

this

action

within

the

limitations period or that it knew or should have known that this
action would be brought against it but for a mistake concerning
the

identity

Universal

of

the

Vending’s

proper
motion

party.

to

She

dismiss

on

did
this

not

respond

point,

to

either.

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.
her

Amended

Complaint

does

not

Complaint under Rule 15(c)(1)(C).

relate

back

to

her

Thus,
initial

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”

3

and “knew or should have known that the action would have been
brought

against

party’s

it,

identity”

initial complaint.

but

within

for

a

mistake

ninety

days

concerning

after

the

the

filing

proper
of

the

Fed. R. Civ. P. 15(c)(1)(B)-(C); see also Fed.

R. Civ. P. 4(m) (establishing 90-day time limit for service).
Accordingly,

Gibson’s

claims

against

relate back under Rule 15(c)(1)(C).

Universal

Vending

do

not

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
CONCLUSION
As discussed above, Gibson’s claims against Universal Vending
are untimely.

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

1

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.

4