As we head into December, there is quite a bit of attention being paid to when sales start, when shipping occurs, and when gifts are given. Were one concerned with such an inquiry, one might imagine a few different points in time when gifting might commence. For purposes of our space-filling exercise, assume the putative gift is tangible, labeled to identify the intended recipient, wrapped such that it must be opened to reveal its contents, and left in a place where the intended recipient is expected to retrieve it. Has gifting commenced when the giftor leaves the gift in this place, even if it might be removed before the giftee assumes possession? Need there be some last clear chance when the gift can no longer be removed or replaced with something else before the giftee claims it? Must there be a direction like “open it” to signal an exchange? What if the gift has labeling that states that it cannot be opened for another six weeks or so? If the “gift” is merely a box containing a note that an actual gift will be forthcoming, then was there a gift at all? What if we droned on and on?
Goldthrip v. DePuy Orthopaedics, Inc., __ Fed. Appx. __, 2016 WL 6933450 (11th Cir. Dec. 28, 2016), involves these exact same issues if one can consider a product liability lawsuit a gift and an Alabama courthouse a suitable place for receiving such a gift. In Goldthrip, the plaintiff alleged that her implanted prosthetic hip manufactured by defendants injured her on December 25, 2013. As this was a day when many Alabamians were exchanging gifts, we can guess that the timing of the injury was easy to identify. The plaintiff filed her case on December 23, 2015, two days before the statute expired and another day of mass gifting. Her complaint, however, came with a curious note, indicating that she was “‘withholding service of process’ in an effort to avoid expenses and facilitate settlement discussions.” Id. at *1. The complaint was served on the defendant (without a summons) a week later, a summons was issued about six weeks after that, and the defendant was served with the summons sometime later. (If you are wondering, Fed. R. Civ. P. 4(c) provides that “A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” Service of the summons and complaint together, absent waiver, is necessary to get things started in federal court.)
Defendant argued that the case was not commenced within two years of plaintiff’s alleged injury (and awareness thereof), so the case was time barred on its face. Even though both Fed. R. Civ. P. 3 and the equivalent Alabama rule say that “A civil action is commenced by filing a complaint with the court,” the substantive Alabama law on statute of limitations law requires looking at least a little past the filing date. “For statute-of-limitations purposes, the complaint must be filed and there must also exist ‘a bona fide intent to have it immediately served.’” Id. (citations omitted). Plaintiff’s note about “withholding service of process” was the opposite of intending to serve the complaint immediately. So, plaintiff had not commenced her case in time and the dismissal was affirmed by the Eleventh Circuit.
Does this help answer the preceding ponderous questions about the timing of gifting? Maybe. Does this remind defense lawyers to check if filings purportedly made in the nick-of-time did not really commence an action before the expiration of the statute of limitations? It should. The applicable statute of limitations law may not be as clear as Alabama’s was in rejecting a mere placeholder complaint, but it is worth a look in your cases.