Statute of Limitations - Service of Process
Brooks v. Austal USA, LLC, [Ms. 2180354, Dec. 6, 2019] __ So. 3d __ (Ala. Civ. App. 2019). The court (Hanson, J.; Thompson, P.J., and Moore and Donaldson, JJ. concur; Edwards, J., concurs in the result) reverses a judgment of the Mobile Circuit Court determining that Brooks’s worker’s compensation claim was barred by the statute of limitations.
While it was undisputed that Brooks filed his complaint approximately one week before the statute of limitations expired, the initial attempt at service of process on Austal was returned unfound on March 1, 2018. Brooks then served an alias summons and complaint on Austal on October 12, 2018. The court noted
“The filing of a complaint commences an action for purposes of the Alabama Rules of Civil Procedure but does not ‘commence’ an action for purposes of satisfying the statute of limitations. Pettibone Crane Co. v. Foster, 485 So. 2d 712 (Ala. 1986). See also Dunnam v. Ovbiagele, 814 So. 2d 232 (Ala. 2001); Maxwell v. Spring Hill Coll., 628 So. 2d 335, 336 (Ala. 1993) (‘“This Court has held that the filing of a complaint, standing alone, does not commence an action for statute of limitations purposes.’” (quoting Latham v. Phillips, 590 So. 2d 217, 218 (Ala. 1991))). For statute-of-limitations purposes, the complaint must be filed and there must also exist ‘a bona fide intent to have it immediately served.’ Dunnam, 814 So. 2d at 237-38.”
Ms. *8, quoting Precise v. Edwards, 60 So. 3d 228, 230-31 (Ala. 2010) (underlined emphasis added in Brooks).
The court concluded that “considering all the evidence in a light most favorable to Brooks, there is nothing to indicate that Brooks’s instruction for the clerk to issue service of process by certified mail to Austal’s former registered agent, made contemporaneous with the filing of his complaint, was anything other than a bona fide attempt at immediate service; indeed, the facts before us indicate that the attempt to serve Austal through LIS was inadvertent, a product of Austal’s having recently changed its registered agent. As indicated in Thompson [v. E. A. Industries, Inc., 540 So. 2d 1362 (Ala. 1989)], a plaintiff who files a complaint with the bona fide intent that it be immediately served on the defendant has ‘commenced’ an action for statute-of-limitations purposes, even if the initial attempt at service fails for want of the defendant’s correct address. Furthermore, on the authority of Thompson, a significant further delay in seeking service at the correct address is of no consequence – at least with respect to the statute of limitations.” Ms. *12-13.