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Rule 11 - Failure to Sign Complaint - Statute of Limitations - § 6-2-3, Ala. Code 1975

McKenzie v. Janssen Biotech, Inc., [Ms. 1170787, Sept. 27, 2019] __ So. 3d __ (Ala. 2019). The Court (Mitchell, J.; Parker, C.J., and Bolin, Shaw, Wise, Bryan, and Stewart, JJ., concur; Sellers and Mendheim, JJ., concur in the result) affirms the Monroe Circuit Court’s dismissal of failure-to- warn and negligence claims against Janssen Biotech, Inc., the manufacturer of Remicade, a medication taken by the Plaintiff for psoriatic arthritis. It was undisputed that the Plaintiff received Remicade intravenously every two weeks until November 2014 when he developed severe neuropathy. Ms. *2. The Plaintiff filed a complaint in October 2016 which was copied from a complaint filed in an out-of-state wrongful-death action. Ms. *3. The October 2016 complaint was not signed by Plaintiff’s counsel. Ms. *2-3.

The trial court struck the October 2016 complaint citing Rule 11(a), Ala. R. Civ. P. and the complaint’s “‘numerous, substantial errors’ and ‘the failure of any counsel to sign the document.’” Ms. *9. The trial court further dismissed as untimely all of the Plaintiff’s claims asserted in an amended complaint filed in February 2017. Ms. *5.

The Court first noted that while Rule 11(a) requires a pleading to be signed, “‘a trial court, under the rule, is not required to strike an unsigned pleading. Thus, Rule 11(a) itself contemplates that even a pleading that violates Rule 11(a) can stand.’” Ms. *7, quoting State v. $93,917.50 & 376 Gambling Devices, 171 So. 3d 10, 16 (Ala. 2014). A trial court has discretion in deciding whether to strike an unsigned pleading and such orders are reversed only if it is shown that the trial court exceeded its discretion. Ms. *7. The Court affirmed the order striking the unsigned October 2016 complaint. Ms. *12.

With the October 2016 complaint having been stricken and their amended complaint not filed until February 2017, Plaintiffs’ negligence and negligent failure-to-warn claims were time-barred unless saved by § 6-2-3 which applies “to any cause of action fraudulently concealed.” Ms. *13, quoting Ex parte Price, 244 So. 3d 949, 957 n. 2 (Ala. 2017). The Court held that § 6-2-3 did not save the Plaintiff’s claims from the bar of limitations because their amended complaint failed “to allege the facts and circumstances of JBI’s alleged fraud with the required specificity; nor do those statements explain why the McKenzies were prevented from discovering the facts surrounding the fraud at an earlier date.... The trial court’s decision to dismiss those claims as untimely was therefore proper.” Ms. *16-17.

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