                          Major SAXTON, Jr., Mary Saxton, Plaintiffs-Appellants,

                                                      v.
                               ACF INDUSTRIES, INC., Defendant-Appellee.

                                                No. 00-11047.

                                       United States Court of Appeals,
                                              Eleventh Circuit.

                                                Jan. 24, 2001.

Appeal from the United States District Court for the Northern District of Alabama.(No. 98-01719-CV-N-S),
Edwin L. Nelson, Judge.
Before DUBINA and HULL, Circuit Judges, and HODGES*, District Judge.

          HULL, Circuit Judge:

          Plaintiffs Major and Mary Saxton appeal the district court's grant of summary judgment to Defendant
ACF Industries, Inc. ("ACF") on all of their claims based on the statute of limitations. After review, we

affirm.

                                                I. Background
          On February 17, 1997, Major Saxton was employed by Drummond Company, Inc. as an exhaust

operator and was injured during the course of his employment while unloading sulfuric acid from a railroad
tank car. On June 5, 1998, he alone filed suit in Alabama state court against Defendants Boliden Intertrade,
Inc., CSX Transportation, Inc., Union Tank Car Company, and Marsh Instrument Company. Saxton's

complaint contained only various state law claims. The defendants removed the case to federal court on the
basis of diversity jurisdiction.
          Saxton's complaint described both Union Tank Car Company and Boliden Intertrade, Inc. as

"manufacturers and sellers of railroad cars" who "sold the subject railroad car." Saxton's suit also included

numerous fictitious defendants, described as those defendants which "owned," "maintained," "designed,

manufactured, [or] distributed the tank car which is the subject of this lawsuit." ACF, whom Saxton now
alleges to be the actual seller of the tank car, was not specifically included as a defendant.
          Major Saxton twice amended his complaint, both times with permission of the district court. In his

first amended complaint, filed on October 16, 1998, Saxton added his wife as a party plaintiff and added


    *
     Honorable William T. Hodges, U.S. District Judge for the Middle District of Florida, sitting by
designation.
General American Transportation Corporation and Trinity Chemical Industries, Inc. as defendants. This

amended complaint described both new defendants as having sold the subject railroad car. On November 25,

1998, the complaint was amended a second time to identify correctly the defendant previously included as
"Trinity Chemical Industries, Inc." as Trinity Industries, Inc. ACF was not added as a defendant by either

amendment.
        On January 11, 1999, in its "Initial Order Governing Proceedings in This Action," the district court

dismissed the suit as to all fictional parties without prejudice as to any party's rights under Rule 15(c), as

follows:

        There being no fictitious party practice in the courts of the United States, it is hereby ORDERED that
        the action be DISMISSED as to all fictitious parties. Dismissal is without prejudice to the right of
        any party to take advantage of the provisions of Rule 15(c), Fed.R.Civ.P.

On February 17, 1999, the Saxtons moved the court for an order to "hold open (indefinitely, until further

Order of the Court on the subject) the time for serving defendants." They argued that the requested extension
would prevent foreclosure of the operation of Alabama's fictitious party practice and relation back principles.

On March 3, 1999, the district court granted this motion.

        Shortly after the statute of limitations period expired, the Saxtons filed a third amended complaint
on March 26, 1999, again with permission of the district court. In this complaint, the Saxtons added ACF

as a defendant for the first time and brought certain of the state law tort claims against it which were already

made against the previous defendants. This third amended complaint noted that "the subject railroad car has
now been specifically identified as ACFX-94705" and included an allegation that ACF was a "manufacturer
and seller of railroad cars" and had "sold the subject railroad car." The Saxtons allege that it was not until

approximately February 17, 1999, shortly before the Saxtons filed their third amended complaint, that they

first learned that ACF was the actual seller of the railroad tank car at issue.
           ACF filed a summary judgment motion as to all of the Saxtons' claims, arguing that they were

time-barred. The district court granted ACF's motion and entered final judgment for ACF.1 The Saxtons

timely appealed.2


    1
     This Court has jurisdiction over the Saxtons' appeal pursuant to 28 U.S.C. § 1291 because the district
court directed the entry of a final judgment on its order granting summary judgment to ACF and made an
express determination that there was no just reason for delay. See 28 U.S.C. § 1291; Fed.R.Civ.P. 54(b).
    2
     In their briefs, both parties state that the standard of review for this appeal is de novo. This Court has
held that a district court's "[a]pplication of [federal] Rule 15(c) is reviewed for abuse of discretion," and
"the findings of fact necessary for application of the rule are reviewed for clear error." Powers v. Graff,
                                                II. Discussion
         Because the Saxtons' claims are all state law claims and federal jurisdiction in this case is based on

the diversity of the parties, Alabama law provides the applicable statute of limitations period for the Saxtons'

claims against ACF. See Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079

(1945). Under Alabama law, the statute of limitations for general tort claims is two years.3 Since Major
Saxton's injury occurred on February 17, 1997, the statute of limitations on the Saxtons' claims expired on
February 17, 1999. The Saxtons' third amended complaint adding ACF as a defendant was filed on March

26, 1999, and thus came after the expiration of Alabama's two-year limitations period. The pivotal question

becomes whether the Saxtons' third amended complaint adding ACF as a defendant relates back to the filing
of the initial complaint on June 5, 1998, which was within Alabama's limitations period. The answer to this

question depends on whether state or federal law provides the applicable relation back principles.

        Federal Rule of Civil Procedure 15(c) governs relation back of amendments to pleadings in federal
court. The first subsection, Rule 15(c)(1), provides in full that "[a]n amendment of a pleading relates back
to the date of the original pleading when relation back is permitted by the law that provides the statute of

limitations applicable to the action." Fed.R.Civ.P. 15(c)(1). This subsection was added during the 1991
amendments to Rule 15. The Advisory Committee Notes accompanying this subsection state that the
provision "is intended to make it clear that the rule does not apply to preclude any relation back that may be

permitted under the applicable limitations law." Fed.R.Civ.P. 15(c)(1) advisory committee's note. These
Notes also state: "Whatever may be the controlling body of limitations law, if that law affords a more

forgiving principle of relation back than the one provided in this rule, it should be available to save the

claim." Id. Rule 15(c)(1) thus instructs that the applicable relation back law is the law that provides the

applicable statute of limitations. As the Notes clarify, that law should be applied even if it provides a more


148 F.3d 1223, 1226 (11th Cir.1998). Although grants of summary judgment generally are reviewed de
novo, this appeal addresses the district court's prerequisite decision not to allow the Saxtons' third
amended complaint to relate back to the date of the original pleading. See id. at 1226 n. 6 ("Although we
generally review grants of summary judgment de novo, this appeal is not really a review of the grant of
summary judgment. Instead the appeal is a review of the district court's prerequisite decision not to allow
the Plaintiffs' Fourth Amended Complaint to relate back to the date of the original pleading. Once we
review that preliminary decision of the district court for abuse of discretion, the legal issue of whether the
claims are barred by the statute of limitations can be determined de novo."). In any event, the result of
this appeal would not be different whether our review here was de novo or for abuse of discretion.
    3
     Alabama Code § 6-2-38(1) provides: "All actions for any injury to the person or rights of another
not arising from contract and not specifically enumerated in this section must be brought within two
years." Ala.Code § 6-2-38(1)(1975).
forgiving principle of relation back than the federal rule.
        Because Alabama law provides the applicable statute of limitations in this case, Rule 15(c)(1) directs

us to Alabama's law governing relation back of amendments. Alabama's law addressing relation back is

found in Alabama Rule of Civil Procedure 15(c).4 Alabama Rule 15(c)(4) expressly sets forth the relation

back rule when fictitious parties are involved. Specifically, Rule 15(c)(4) provides that an amendment to a
pleading "relates back to the date of the original pleading when ... relation back is permitted by principles

applicable to fictitious party practice pursuant to Rule 9(h)." Ala. R. Civ. P. 15(c)(4).

         In turn, Alabama's fictitious party practice rule, contained in Rule 9(h), provides that when a party

is ignorant of the name of an opposing party and so alleges, that party may designate the opposing party by
any name and amend its pleading to substitute the opposing party's true name when the true name is

discovered. Ala. R. Civ. P. 9(h).5 The Committee Comments accompanying Rule 9(h) further direct: "See


    4
     Alabama Rule of Civil Procedure 15(c) provides:

                 An amendment of a pleading relates back to the date of the original pleading when
                 (1) relation back is permitted by the law that provides the statute of limitations applicable
                 to the action, or

                 (2) the claim or defense asserted in the amended pleading arose out of the conduct,
                 transaction, or occurrence set forth or attempted to be set forth in the original pleading,
                 except as may be otherwise provided in Rule 13(c) for counterclaims maturing or
                 acquired after pleading, or
                 (3) the amendment, other than one naming a party under the party's true name after
                 having been initially sued under a fictitious name, changes the party or the naming of the
                 party against whom a claim is asserted if the foregoing provision (2) is satisfied and,
                 within the applicable period of limitations or one hundred twenty (120) days of the
                 commencement of the action, whichever comes later, the party to be brought in by
                 amendment (A) has received such notice of the institution of the action that the party will
                 not be prejudiced in maintaining a defense on the merits, and (B) knew or should have
                 known that, but for a mistake concerning the identity of the proper party, the action
                 would have been brought against the party, or

                 (4) relation back is permitted by principles applicable to fictitious party practice pursuant
                 to Rule 9(h).

        Ala. R. Civ. P. 15(c).
    5
     Alabama Rule of Civil Procedure 9(h) provides:

                 Fictitious parties. When a party is ignorant of the name of an opposing party and so
                 alleges in the party's pleading, the opposing party may be designated by any name, and
                 when that party's true name is discovered, the process and all pleadings and proceedings
                 in the action may be amended by substituting the true name.

        Ala. R. Civ. P. 9(h).
Rule 15(c) for the application of the doctrine of relation back of amendments substituting real parties for

fictitious parties." Ala. R. Civ. P. 9(h) advisory committee's note. The Alabama Supreme Court has expressly

discussed the interplay between Alabama Rules of Civil Procedure 9(h) and 15(c), noting that they allow a

plaintiff, in certain circumstances, to avoid a limitations bar by fictitiously naming a defendant and later
substituting the actual party, as follows.6

        Rules 9(h) and 15(c), Ala. R. Civ. P., allow a plaintiff to avoid the bar of a statute of limitations by
        fictitiously naming defendants for which actual parties can later be substituted. Such a substitution
        is allowed to relate back to the date of the original complaint if the original complaint adequately
        described the fictitiously named defendant and stated a claim against such a defendant. In order for
        the substitution to relate back, the plaintiff must show that he was ignorant of the true identity of the
        defendant and that he used due diligence in attempting to discover it.

See Jones v. Resorcon, Inc., 604 So.2d 370, 372-73 (Ala.1992). See also Ex Parte Stover, 663 So.2d 948,

951 (Ala.1995); Columbia Eng'g Int'l, Ltd. v. Espey, 429 So.2d 955, 959 (Ala.1983). Thus, under Alabama

law, an amendment substituting an actual defendant for a fictitious defendant relates back when:
        (1) the original complaint adequately described the fictitious defendant;

        (2) the original complaint stated a claim against the fictitious defendant;
        (3) the plaintiff was ignorant of the true identity of the defendant; and
        (4) the plaintiff used due diligence to discover the defendant's true identity.

See Jones, 604 So.2d at 372-73. In this case, the first three factors are not in dispute. The parties agree that

the original complaint adequately described the fictitious defendants and stated claims against them. ACF
does not contend that the Saxtons were anything but ignorant of ACF's true identity until shortly before their

third amended complaint. However, ACF argues that the Saxtons were not diligent in discovering the true
identity of the fictitious defendants named in the complaint.

        The district court noted that the parties have "energetically contested" whether the Saxtons could meet
Rule 9(h)'s diligence requirement. The district court, however, never reached this issue because it ultimately

determined that binding precedent from this Circuit required it to apply the relation back principles provided

under federal, rather than Alabama, law. The district court stated that its "reading of [federal] Rule 15(c)(1)
suggests that it is broad enough to incorporate Alabama's fictitious party rules and, were it free to do so,

would follow the earlier rule in Crowe." In Crowe v. Mullin, 797 F.Supp. 930 (N.D.Ala.1992), the court held

that Rule 15(c)(1) directed a federal court to look to Alabama's fictitious party practice and relation back rules


    6
    As a federal court sitting in diversity, we are required to apply the law as declared by the state's
highest court. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
in an action in which federal jurisdiction was based on diversity of citizenship. Id. at 932. However, as the

district court noted in this case, binding precedent in this Circuit, specifically Wilson v. Navistar Int'l Transp.

Corp, 193 F.3d 1212 (11th Cir.1999), required the district court to apply the federal law governing relation

back.

        In Wilson, also a diversity jurisdiction case, this Court addressed the issue of whether Alabama or

federal relation back principles govern an amendment replacing a fictitious defendant with a real defendant.

The Court determined that because relation back issues are procedural in nature, the federal rules should apply

under Erie principles.7 Id. at 1213-14. The Court therefore affirmed the district court's conclusion that

federal procedural law did not allow the amendment sought. Id. at 1214. The Court did not mention

Fed.R.Civ.P. 15(c)(1), added as an amendment to the rule in 1991, which specifically allows for relation back

of amendments when "permitted by the law that provides the statute of limitations applicable to the action."8

Instead, the Court relied on two pre-amendment cases, Glickstein v.. Sun Bank/Miami, N.A., 922 F.2d 666

(11th Cir.1991) and Crowder v. Gordons Transp., Inc., 387 F.2d 413 (8th Cir.1967), which held that relation

back was governed by federal, rather than state, law. From the Court's decision in Wilson, it appears that the

Court was unaware of the 1991 amendments to Fed.R.Civ.P. 15.

         We question Wilson in light of the 1991 amendments to Fed.R.Civ.P. 15(c)(1) and believe, along

with the other circuits to discuss this issue, that Rule 15(c)(1) incorporates the relation back principles of the

law which provides the statute of limitations .9 See Arendt v. Vetta Sports, Inc., 99 F.3d 231, 236 (7th



    7
      In a more recent case, this Court recognized the principle that Fed.R.Civ.P. 15(c)(1) "was added to
ensure that if the controlling body of limitations law afforded a more forgiving principle of relation back
than the one provided in Rule 15, then the more forgiving principle should be available to save the claim."
See Davenport v. United States, 217 F.3d 1341, 1344 n. 7 (11th Cir.2000). However, the Court in
Davenport did not apply Rule 15(c)(1), or mention Wilson v. Navistar. We note that Davenport involved
a civil action brought under federal law, 28 U.S.C. § 2255, and the Court applied federal Rule 15(c)(2)'s
relation back principles. Id. The Court in Davenport stated that the controlling body of limitations law
for a § 2255 motion, the AEDPA, "does not evince a more forgiving principle" of relation back than Rule
15(c)'s provisions. Id.
    8
     As the Saxtons point out, the parties' appellate briefs before the Wilson Court never mentioned Rule
15(c)(1). ACF does not dispute this, but states that Rule 15(c)(1) was mentioned in the pleading in
support of the Wilson appellee's motion to dismiss in the district court.

                The district court in this case also observed that "it is unclear whether the proper
        application of Rule 15(c)(1) was before the court of appeals in Wilson."
    9
     The district court also noted that it had "strong reservations about whether Wilson was correctly
decided."
Cir.1996) (applying Illinois relation back law pursuant to Fed.R.Civ.P. 15(c)(1)); Lundy v. Adamar of NJ,

Inc., 34 F.3d 1173, 1184 (3d Cir.1994) (applying New Jersey relation back law); McGregor v. Louisiana

State Univ. Bd. of Supervisors, 3 F.3d 850, 863 n. 22 (5th Cir.1993) (applying Louisiana relation back law).

However, under this Circuit's prior panel precedent rule, we are bound by the holding of the first panel of this

Court to address an issue of law, unless and until that holding is overruled en banc or by the Supreme Court.

See United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993). As we recently noted,

         the prior panel precedent rule is not dependent upon a subsequent panel's appraisal of the initial
         decision's correctness. Nor is the operation of the rule dependent upon the skill of the attorneys or
         wisdom of the judges involved with the prior decision—upon what was argued or considered. Unless
         and until the holding of a prior decision is overruled by the Supreme Court or by the en banc court,
         that holding is the law of this Circuit regardless of what might have happened had other arguments
         been made to the panel that decided the issue first.

Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir.2000).

         We are therefore constrained to follow Wilson and to apply the federal principles governing relation

back, set forth in Federal Rule of Civil Procedure 15(c), rather than Alabama's principles.10 Specifically, Rule
15(c)(3) controls whether an amended complaint may relate back to the filing of the original complaint where

a plaintiff amends his complaint to add a defendant after the running of the relevant statute of limitations.

See Powers v. Graff, 148 F.3d 1223, 1225 (11th Cir.1998). Rule 15(c)(3) first provides that the amended

complaint must satisfy the requirements of Rule 15(c)(2) that the claim in the amended complaint arise out

of the conduct, transaction, or occurrence set forth in the original pleading. See Fed.R.Civ.P. 15(c)(3). If

Rule 15(c)(2) is satisfied, Rule 15(c)(3) "permits an amendment to relate back only where there has been an

error made concerning the identity of the proper party and where that party is chargeable with knowledge of

the mistake." Powers, 148 F.3d at 1226 (citing Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993)).11

    10
       ACF argues that even if this Court were not constrained to follow Wilson, as a matter of law the
Saxtons' complaint would not relate back under Alabama law because the Saxtons have failed to show
that they were diligent in discovering the true identity of the fictitious defendants named in their
complaint. As did the district court, we decline to address this issue because we find that we are bound
by Wilson to apply federal relation back law. In any event, this is the type of record-intensive issue that
should be addressed by the district court in the first instance.
    11
      Federal Rule of Civil Procedure 15(c)(2)-(3) provides that an amendment of a pleading relates back
to the date of the original pleading when

                 (2) the claim or defense asserted in the amended pleading arose out of the conduct,
                 transaction, or occurrence set forth or attempted to be set forth in the original pleading, or

                 (3) the amendment changes the party or the naming of the party against whom a claim is
                 asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule
                 4(m) for service of the summons and the complaint, the party to be brought in by
The Saxtons concede that they cannot meet the test for successful relation back under Federal Rule 15(c)(3).

Following Wilson and applying federal relation back principles, we conclude that the Saxtons' third amended

complaint, adding ACF as a defendant, did not relate back to the filing of the original complaint and therefore
was barred by the statute of limitations.

        For the reasons stated above, we affirm the district court's order granting summary judgment to ACF.

        AFFIRMED.




                 amendment (A) has received such notice of the institution of the action that the party will
                 not be prejudiced in maintaining a defense on the merits, and (B) knew or should have
                 known that, but for a mistake concerning the identity of the proper party, the action
                 would have been brought against the party.

        Fed.R.Civ.P. 15(c)(2)-(3).
