Fuller v. Werner Enterprises Inc et al

Filing 30

MEMORANDUM OPINION AND ORDER: Defendants' Motion to Dismiss Under Rule 12(b)(6), Doc. 20 , is DENIED. (Ordered by Magistrate Judge Renee Harris Toliver on 7/20/2017) (sss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SEPTEMBER LEE FULLER,
Plaintiff,
v.
WERNER ENTERPRISES, INC.,
GREGORY GEORGE HITTNER,
MARK R. STUBBS and
CONTINENTAL EXPRESS, INC.,
Defendants.

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§ Civil Action No. 3:16-CV-2958-BK
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MEMORANDUM ORDER AND OPINION
The parties’ have consented to proceed before the magistrate judge. Doc. 5 at 3;
Doc. 6. The Court now considers Defendants Mark R. Stubbs’ and Continental Express,
Inc.’s Motion to Dismiss Under Rule 12(b)(6), Doc. 20. Upon review of the pleadings
and applicable law, Defendants’ motion is DENIED.
A.

Background
Plaintiff September Lee Fuller brings this civil action asserting various claims

arising from injuries she sustained in a highway accident on February 28, 2015. Doc. 14
at 3. This action was originally filed in state court in April 2016 by Mark R. Stubbs
against Octaviano Mota Fernandez and Bryan’s Express, Inc. Doc. 1-1 at 11. In May
2016, Stubbs added Werner Enterprises, Inc. (“Werner”) as a defendant. See Doc. 1-1 at
24. In July 2016, Plaintiff intervened in the state action, asserting claims against Werner
and adding Gregory George Hittner as a defendant. Doc. 1-1 at 41. Eventually, Stubbs
settled his claims against all parties, leaving Plaintiff, Werner, and Hittner as the
remaining parties. Doc. 1-1 at 70. Thereafter, Werner and Hittner removed this case to
this court on the basis of diversity jurisdiction, pursuant to 28 U.S.C. § 1332. See Doc. 1.

In January 2017, Plaintiff filed a motion for leave to amend her original complaint
to add Stubbs and Continental Express, Inc. (“Continental”) as defendants. Doc. 9. The
Court granted the motion on March 22, 2017, directing the Clerk of the Court to docket
Plaintiff’s First Amended Complaint, which was filed as an attachment to her motion for
leave. Doc. 12; Doc. 14. Shortly thereafter, Stubbs and Continental filed the instant
motion, moving to dismiss Plaintiff’s claims on the grounds that she filed her First
Amended Complaint after the applicable two-year limitations period accrued on February
28, 2017. Doc. 20. In response, Plaintiff contends that where, as here, a motion for leave
to amend is filed within the limitations period, a complaint filed after accrual is
considered timely filed. Doc. 25 at 2-6. Plaintiff is correct.
B.

Applicable Law and Analysis
“A statute of limitations may support dismissal under Rule 12(b)(6) where it is

evident from the plaintiff’s pleadings that the action is barred and the pleadings fail to
raise some basis for tolling or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir.
2003) (citations omitted). In a diversity action such as this, Texas law governs the
applicable statute of limitations. Huss v. Gayden, 571 F.3d 442, 450 (5th Cir. 2009).
Texas has a two-year statute of limitations for personal injury actions. TEX. CIV. PRAC. &
REM. CODE § 16.003(a). However, the limitations period is tolled during the pendency of
a motion for leave to amend the complaint. Newby v. Enron Corp., 542 F.3d 463, 470
(5th Cir. 2008) (citing, among others, Moore v. Indiana, 999 F.2d 1125, 1131 (7th
Cir.1993) (“As a party has no control over when a court renders its decision regarding the
proposed amended complaint, the submission of a motion for leave to amend, properly
accompanied by the proposed amended complaint that provides notice of the substance of

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those amendments, tolls the statute of limitations, even though technically the amended
complaint will not be filed until the court rules on the motion.”).
It is undisputed that Plaintiff’s cause of action accrued on the date of the accident,
February 28, 2015, and that she had until February 28, 2017 to file claims relating arising
from it. TEX. CIV. PRAC. & REM. CODE § 16.003(a). Plaintiff filed her motion for leave
to amend her complaint to add Stubbs and Continental as defendants on January 22, 2017
– before the limitations period expired. Doc. 9.
That Plaintiff’s motion for leave was granted after the limitations period accrued
is of no consequence. See RTC v. Bright, No. 92-CV-0995-D, 1994 U.S. Dist. LEXIS
21690, at *4 (N.D. Tex. Aug. 19, 1994) (Fitzwater, J.) (holding that the plaintiff “timely
commenced its action against [the defendant] when it filed – prior to the expiration of the
tolling period – its motion for leave to amend”) (citation omitted); Stafford v. Clark
Constr. Co., 901 F.Supp. 232, 233 (E.D. Tex. 1995) (where the plaintiff moved to file an
amended complaint before the expiration of the limitations period, “[t]he date of final
approval of the motion . . . does not enter the analysis”); Willoughby v. Cribbs, No. H-131091, 2014 WL 12537082, at *1 (S.D. Tex. Dec. 12, 2014) (equitable tolling of the
limitations period warranted where plaintiff moved for leave to file an amended
complaint within the limitations period and the motion was granted after the date of
accrual).

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C.

Conclusion
In light of the foregoing, Defendants’ Motion to Dismiss Under Rule 12(b)(6),

Doc. 20, is DENIED.
SO ORDERED on July 20, 2017.

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