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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14002
Non-Argument Calendar
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D.C. Docket No. 2:15-cv-00651-KD-B
MAEOLA GOLDTHRIP,
VICKIE GOLDTHRIP,
Plaintiffs - Appellants,
versus
DEPUY ORTHOPAEDICS, INC.,
JOHNSON & JOHNSON,
Defendants - Appellees.
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Appeal from the United States District Court
for the Southern District of Alabama
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(November 28, 2016)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
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On December 25, 2013, Plaintiff Maeola Goldthrip suffered an injury
allegedly caused by a faulty hip transplant. The hip system was designed by
DePuy Orthopaedics, the Defendant. On December 23, 2015, two days before the
Alabama two-year statute of limitations expired, Plaintiffs Maeola Goldthrip and
Vickie Goldthrip filed a complaint against DePuy Orthopaedics and Johnson &
Johnson, DePuy’s parent company. The last page of the complaint indicated
Plaintiffs were “withholding service of process” in an effort to avoid expenses and
facilitate settlement discussions. On December 28, 2015, Plaintiffs sent letters
with copies of the complaint and a proposed tolling agreement to DePuy’s
registered agent and a DePuy litigation paralegal. A summons was not issued until
February 17, 2016, after the district court judge instructed Plaintiffs’ counsel that
there is “no legal authority that permits them to file a complaint in federal court
and then essentially sit on it until they decide that they are ready to move forth
with the prosecution.”
After being served with the summons, DePuy answered and immediately
moved for summary judgment. The district court found Plaintiffs did not
commence the action prior to Alabama’s two-year statute of limitations deadline
and granted summary judgment in favor of DePuy. The district court held that
“Plaintiffs failed to commence their action when they filed the Complaint on
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December 23, 2015, because they did not immediately serve or have the intent to
immediately serve the Defendant.”
We review the district court’s entry of summary judgment de novo.
Chapman v. Procter & Gamble Distributing, LLC, 766 F.3d 1296, 1312 (11th Cir.
2014). In an action based on diversity jurisdiction, state law determines when the
action commenced for statute of limitations purposes. See Walker v. Armco Steel
Corp., 446 U.S. 740, 753, 100 S. Ct. 1978, 1986 (1980). We will apply Alabama
law to determine if the action commenced before the statute of limitations period
had run. In Alabama, a two-year statute of limitations period applies to the claims
at issue here, negligence and Alabama Extended Manufacturer’s Liability claims.
See Ala. Code § 6-2-38(1) (1975); Smith v. Medtronic, Inc., 607 So. 2d 156, 159
(Ala. 1992). Under Rule 3 of the Alabama Rules of Civil Procedure, an “action is
commenced by filing a complaint with the court.” Ala. R. Civ. P. 3. However, the
filing of the complaint is not the only factor for determining whether the action
“commenced” for statute of limitations purposes. Ex parte E. Ala. Mental Health–
Mental Retardation Bd., Inc., 939 So. 2d 1, 3 (Ala. 2006) (“This Court has held
that the filing of a complaint, standing alone, does not commence an action for
statute-of-limitations purposes.”). “For statute-of-limitations purposes, the
complaint must be filed and there must also exist ‘a bona fide intent to have it
immediately served.’” Precise v. Edwards, 60 So. 3d 228, 230–31 (Ala. 2010)
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(citation omitted). If the plaintiff “does not perform all the tasks required to
effectuate service and delays a part of the process, a lack of the required bona fide
intent to serve the defendant is evidenced.” Id. at 233. The intent necessary to
commence the action is the intent to have process “immediately served.” Ward v.
Saben Appliance Co., 391 So. 2d 1030, 1035 (Ala. 1980) (emphasis added).
Plaintiffs’ statement in the complaint that they were “withholding service of
process” is indicative of their intent at the time of filing. On the final page of the
complaint, Plaintiffs stated they were “withholding Service of Process in an effort
to resolve this matter without the extreme expense required by both sides. Process
will be served at a later date as agreed to by both parties.” (emphasis added). In a
case directly on point, the Alabama Supreme Court stated that, when “the plaintiff
intentionally interferes with this service by ordering that service be withheld, then
the filing will not constitute the commencement of the action, since there is no
intent to prosecute the claim at that time.” Freer v. Potter, 413 So. 2d 1079, 1081
(Ala. 1982). Under Freer, withholding service means the action did not commence
when Plaintiffs filed the complaint. As such, Plaintiffs did not commence the
action when they filed the complaint on December 23. They have offered no proof
to demonstrate they had the requisite intent prior to the running of the statute of
limitations on December 25. The district court’s grant of summary judgment for
Depuy is affirmed.
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AFFIRMED.
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