IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION

LUMBERMAN S UNDERWRITING )

ALLIANCE, et al., )

)

Plaintiffs )

)

vs. ) Civil Action No.: 3:06-CV-645-MEF

)

LOUIS BERRY, et al. )

)

Defendants. )

DEFENDANT S MOTION TO DISMISS

COMES NOW the Defendant, Louis Berry, and moves this Honorable Court to dismiss the

claims against him with prejudice as raised in the plaintiffs amended complaint, separately and

severally, and as grounds therefore states as follows:

BRIEF OVERVIEW

This case arises out of a motor vehicle accident which occurred on July 15, 2004 (See

plaintiffs complaint). The case was originally filed in state court in Russell County, Alabama on

June 22, 2006 against defendant Emory Lee Young as the lone defendant. The plaintiffs alleged in

the complaint that an unidentified driver one car ahead of the plaintiffs insured (James John

( John )) made a sudden left turn. The plaintiffs further alleged that this defendant, Berry, who was

operating the vehicle immediately ahead of John and behind the car turning left, had to quickly

apply his brakes. As Berry s vehicle came to a stop, John braked but lost control and hit Berry in

the rear.John s vehicle wasthen struck from behind by defendant Young according to the plaintiffs

complaint. The plaintiffs alleged that Johns was injured as a result of being struck by Young. The

plaintiffs alleged further in their complaint that they paid out insurance benefits for John s medical

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bills and other expenses and the plaintiffs in their compliant sought recovery for same. The plaintiffs

alleged that the damages sustained resulted from the wrongful conduct of Young.

According to the case action summary, this case was removed from state court to this Court

by a Notice of Removal filed by Young on or about July 20, 2006. A scheduling order was entered

on or about August 25, 2006. That order included a deadline for amending the pleadings of

November 10, 2006.

This defendant (Berry) was sued in this matter by way of an amended complaint filed on

February 2, 2007. The plaintiffs allege in their amended complaint, contrary to the set of facts

contained in their original complaint, that Berry came to a sudden stop in the road because he saw

a woman walking along US 280 wearing shortshorts. The remainder of the plaintiffs allegations

are consistent with the original complaint, namely that John could not stop in time before hitting

Berry in the rear and then John was struck in the rear by Young.

ARGUMENT

The statute of limitations for this motor vehicle accident expired on July 15, 2006. (Ala. Code § 6-2-38 (l)). The amended complaint was not filed until February 2, 2007. The plaintiffs

failed to name any fictitious parties in their original complaint. Even had they done so, such would

not apply to this defendant as this defendant s identity was known to the plaintiffs as evidenced by

the mention of Berry in the original complaint. (See, e.g., Pearson v. Brooks, 883 So. 2d 185 (Ala.

2003). Nothing in this matter would allow for any extension of the statute of limitations to a date

that would include the date the amended complaint was filed, nor is there anything that would allow

the amended complaint to relate back to the time of the original filing. Additionally, the plaintiffs

failed to amend their pleading within the time frame prescribed by this Court in the scheduling order.

As such, the plaintiffs claims against this defendant are due to be dismissed.

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This defendant further, without waiver, asserts the following: (1) the applicable statute of

limitations; (2) laches; (3) waiver; and (4) estoppel.

WHEREFORE, the defendant, Louis Berry, respectfully requests that this Court dismiss all

claims against this defendant for the reasons set forth herein.

ORAL ARGUMENT REQUESTED

s/Patrick R. Norris 

Patrick R. Norris

asb-3835-s81p

Attorney for defendant

OF COUNSEL:

McDANIEL, BAINS & NORRIS, P.C.

Two Metroplex Drive

Suite 504

Birmingham, Alabama 35209-6812

(205) 871-1811

CERTIFICATE OF SERVICE

I hereby certify that I have on this 1

st day of March, 2007, served a copy of the foregoing

pleading on counsel for all parties to this proceeding by placing a copy of same in the U.S. Mail, properly addressed and first-class postage prepaid to:

Michael S. Jackson

Ryan Wesley Shaw

Beers, Anderson, Jackson, 

 Patty, Van Heest, & Fawal, P.C. 

250 Commerce Street, Suite 100

Montgomery, Alabama 36102

Joshua J. Jackson

Samford & Denson, LLP

Post Office Box 2345

Opelika, Alabama 36803-2345

s/Patrick R. Norris 

Of Counsel

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