           Case: 16-14002    Date Filed: 11/28/2016   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 16-14002
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 2:15-cv-00651-KD-B



MAEOLA GOLDTHRIP,
VICKIE GOLDTHRIP,

                                              Plaintiffs - Appellants,

versus

DEPUY ORTHOPAEDICS, INC.,
JOHNSON & JOHNSON,

                                              Defendants - Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                            (November 28, 2016)

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:
              Case: 16-14002      Date Filed: 11/28/2016   Page: 2 of 5


      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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