IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION

*

LUMBERMAN’S UNDERWRITING *

ALLIANCE and CAMBRIDGE *

INTEGRATED SERVICES GROUP, *

INC., as Subrogees of TRANSPORT *

LEASING/CONTRACT, INC.; *

HANSEN & ADKINS AUTO *

TRANSPORT, *

*

Plaintiffs, *

* 3:06-CV-645-MEF

vs. *

*

EMORY LEE YOUNG *

an individual, * Formerly Russell County 

* Circuit Court Case No.: 

* CV-06-224

Defendant. *

PLAINTIFFS’ RESPONSE TO DEFENDANT BERRY’S MOTION TO

DISMISS

COME NOW Plaintiffs, Lumberman’s Underwriting Alliance and Cambridge

Integrated Services Group, Inc., as Subrogees of Transport Leasing/Contract, Inc.;

Hansen & Adkins Auto Transport (“Plaintiffs” or “Lumberman’s”) and in response

to Defendant Louis Berry’s (“Defendant” or “Berry”) Motion to Dismiss submit the

following:

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STATEMENT OF THE CASE

Lumberman’s filed this action in the Circuit Court of Russell County, Alabama

(CV-06-224) on June 22, 2006. The original Complaint alleges negligence on the part

of Defendant Emory Young as a result of a four-car pile up that left James John

severely injured. Defendant Young removed this action to The United States District

Court for the Middle District of Alabama, Eastern Division, on July 20, 2006.

Pursuant to Fed. R. Civ. P. 16(b), Judge Fuller entered a Scheduling Order. 

The Scheduling Order set November 10, 2006, as the cut off date for

amendments to the pleadings or to add parties. Defendant Young exchanged

discovery with Plaintiffs on or about December 20, 2006. Based on information

obtained during discovery, Plaintiffs filed a Motion for Leave to Amend to Add a

Party on January 23, 2007. Judge Fuller conducted a status conference with Plaintiffs’

counsel and Defendant Young’s attorney wherein Plaintiffs’ Motion for Leave to

Amend to Add a Party was heard. Plaintiffs’ Motion was granted on February 2,

2007. Once granted, Plaintiffs filed an Amended Complaint on February 2, 2007.

Defendant Berry was served on February 7, 2007. Defendant Berry had 20 days

(February 27, 2007) to respond to Plaintiffs’ Amended Complaint. See, FED.R.CIV.

P. 12(a)(1)(A). Defendant Berry did not respond to the Amended Complaint within

20 days. Defendant Berry filed a Motion to Dismiss with this Court on March 1,

2007. 

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STATEMENT OF FACTS 

On July 15, 2004, James John, (“John”), was driving a tractor trailer as an

employee of Transport/Leasing Contract which had a lease contract with Hansen &

Adkins Auto Transport. While traveling through Russell County, Alabama, on US 80

East, John was approaching the intersection with Goble Road when Berry (in the truck

ahead of John and also driving a tractor trailer) suddenly applied his breaks and came

to a complete stop. See, Exhibit “A.” As Berry’s tractor trailer stopped suddenly,

John, although following a safe distance behind Berry, began to fishtail and was

unable to avoid contact with Berry’s tractor trailer. Id. John’s vehicle was then struck

from behind by Young’s vehicle which was following too closely. Id. Young’s

vehicle, after making contact with John’s tractor trailer, was then struck from behind

by a vehicle driven by Loni Anglin. Id. As a result of his collision with Berry or

Young’s collision with the rear of John’s tractor trailer, John was caused to suffer a

fractured pelvis, contusions, and various other injuries associated with the violent

impact. The insurance carriers for John’s employers paid John’s medical bills and

other expenses related to the incident made the basis of this lawsuit now totaling

$141,424.05. See, Plaintiffs’ Amended Complaint.

Typically, when a traffic accident occurs, the State Trooper on the scene fills

out an accident report. State Trooper Obregon was the responding Trooper to this

accident, and his report indicates that Berry had to make a sudden stop as a result of

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an unknown vehicle ahead of him that put on its left turn signal just prior to reaching

the Goble Road intersection. See, Exhibit “A.” According to the State Trooper’s

report, as a result of this phantom driver, Berry was forced to come to a sudden stop

to avoid a collision. Plaintiffs were only aware of State Trooper Obregon’s report at

the time the lawsuit was filed in Russell County, Alabama (CV-06-224). Although

Russell County Sheriff’s Deputies were on the scene, they typically just direct traffic

while the State Trooper investigates. Exhibit “B,” Deposition of Trooper Obregon,

pg. 41:1-13. 

It was not until the discovery phase of this lawsuit began that Plaintiffs realized

Berry was also an at-fault driver. Among those items included in the discovery was

a report from the Russell County Sheriff’s Office. Exhibit “C.” Upon review of the

report from the Russell County Sheriff’s Office, Plaintiffs determined that Berry may

be partially or completely liable for the damages sustained by James John. The

Russell County Sheriff’s report indicates that Berry came to a sudden and complete

stop when he witnessed a woman walking along US 80 wearing short shorts, and not

due to a phantom driver as reported to the State Trooper. It was not until his

deposition that State Trooper Obregon recalled Louis Berry mentioning a woman

wearing shorts traveling US 80 eastbound. Exhibit “B,” Deposition of Trooper

Obregon, pg. 33:13-25; 34:1-10. 

Lumberman’s filed its initial suit in Russell County and relied on the State

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Trooper’s report when filing suit against at-fault parties. It was not until the discovery

phase of this matter that it became evident that Berry, too, was at fault due to his

negligent operation of a motor vehicle. The Amended Complaint filed against Berry

relates back to the original incident and he was properly amended into this action. 

ARGUMENT

I. DEFENDANT BERRY WAS PROPERLY ADDED AS A DEFENDANT

Lumberman’s Amended Complaint claims that Berry negligently operated his

vehicle and in doing so injured James John. See, Plaintiffs’ Amended Complaint.

Negligence is codified at ALA. CODE § 6-2-38(i) (1975). Lumberman’s’ claims are

all state law claims and federal jurisdiction is based on diversity of citizenship with

Defendant Emory Young (a resident of Georgia). Alabama provides the applicable

statute of limitations in this case, and therefore, Alabama law governing relation back

of amendments must be utilized. See, Saxton v. ACF Indus., Inc., 254 F.3d 959, 964

(11th Cir. 2001). ALA CODE § 6-2-38(i) (1975) does not itself provide for the relation

back of amendments, thus we must look to ALA. R. CIV. P. 15(c), specifically

subsection (3), as Plaintiffs did not plead fictitious parties. ALA. R. CIV. P. 15(c)(3)

provides in pertinent part:

An amendment of a pleading relates back to the date of the original

pleading when 

***

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(2) the claim or defense asserted in the amended pleading arose out of

the conduct, transaction, or occurrence set forth or attempted to be

set forth in the original pleading, except as may be otherwise

provided in Rule 13(c) for counterclaims maturing or acquired

after pleading, or

(3) the amendment, other than one naming a party under the party’s

true name after having been initially sued under a fictitious name,

changes the party or the naming of the party against whom a claim

is asserted if the foregoing provision (2) is satisfied and, within

the applicable period of limitations or one hundred twenty (120)

days of the commencement of the action, whichever comes later,

the party to be brought in by amendment (A) has received such

notice of the institution of the action that the party will not be

prejudiced in maintaining a defense on the merits, and (B) knew

or should have known that, but for a mistake concerning the

identity of the proper party, the action would have been brought

against the party, or 

* * * 

This claim arises out of the same conduct, transaction, or occurrence set forth

in the original pleading. The original pleading references a four-car traffic accident

that occurred on U.S. 80 in Russell County, Alabama, on July 15, 2004. The

Amended Complaint is based on the same accident and simply includes Louis Berry

as an additional negligent party.

The 120 day’s notice requirement in ALA. R. CIV. P. 15(c)(3) is a reference to

the time limits for service found in ALA.R.CIV. P. 4(b). Rule 4, ALA.R.CIV. P., was

amended in August of 2004 to include subdivision (b). See, Committee Comments

to ALA.R.CIV. P. 4. Subdivision (b) was “new to Alabama. It is borrowed from Fed.

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R. Civ. P. 4(m).” Id. There is no Alabama state case law construing ALA. R. CIV. P.

4(b) that is relevant to the issues presented to this Court. See, Moffett v. Stevenson,

909 So.2d 824, 826 (Ala. Civ. App. 2005). Where there is no clear case law on point,

“[c]ases interpreting the Federal Rules of Civil Procedure are authority in the

construction of the Alabama Rules of Civil Procedure.” Bracy v. Sippial Elec. Co.,

Inc., 379 So.2d 582, 584 (Ala. 1980). 

Federal Courts have interpreted FED. R. CIV. P. 4(m) (again, the equivalent of

ALA. R. CIV. P. 4(b)) and determined that the 120 days deadline is not static. See,

Lepone-Dempsy v. Carroll County Comm’rs, 2007 WL 286850 at *2 (11th Cir.2007).

Rather, there are two ways in which a plaintiff can extend the date for service upon

a defendant: upon his own motion or by motion of the court. If the plaintiff shows

good cause for the failure to serve a defendant within 120 days of filing the original

complaint, the court can extend the time for service. FED. R. CIV. P. 4(m). Good

cause exists “only when some outside factor [,] such as reliance on faulty advice,

rather than inadvertence or negligence, prevented service.” Lepone-Dempsy, 2007

WL 286850 at * 2 (citing Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991)

((discussing “good cause” under former Rule 4(j), superceded in part by rule as stated

in Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 n. 2.(11th Cir. 2005)). 

Here, the outside factor was State Trooper Obregon’s accident report. The

accident report produced by Trooper Obregon differs greatly from the one produced

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by Russell County Sheriff’s Deputy Kirby Threat. State Trooper Obregon’s report

indicates a phantom vehicle made an immediate left turn in front of Louis Berry

causing him to slam on his breaks to avoid collision. Sheriff’s Deputy Threat’s

version of events, as told by Louis Berry, is quite different than the report made by

State Trooper Obregon. Deputy Threat indicates that the reason Berry stopped so

suddenly was because a woman wearing shorts grabbed his attention as she walked

down US 80 eastbound. There is no mention of a phantom vehicle driving wildly that

necessitated Berry to act defensively to avoid collision. It was reasonable for

Plaintiffs to assume that State Trooper Obregon’s report was the only report in

existence as typically, the Sheriff’s Department’s only role in a traffic accident is to

direct the flow of traffic. See, Exhibit “B,” Deposition of Trooper Obregon, pg. 41:1-

13. 

A district court can extend the time for service even if the plaintiffs fail to show

good cause. See, Horenkamp. The Horenkamp Court, looking to the factors to be

considered by a District Court Judge, pointed out that, according to the Advisory

Committee Note to Rule 4(m), “relief may be justified, for example, if the applicable

statute of limitations would bar the refiled action...” 402 F.3d 1129, 1132. Certainly,

the refiling of this action to include Defendant Berry would now be barred by the

statute of limitations. 

Here, Plaintiffs filed a Motion for Leave to Amend to Add a Party on January

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23, 2007. Judge Fuller then scheduled a conference call for all parties on February 2,

2007. Plaintiffs explained that they were misled by State Trooper Obregon’s report,

and that the new information provided a sufficient basis for granting an extension

beyond the time limits set forth in ALA. R. CIV. P. 15(c) and his scheduling order.

Based on the information provided to Judge Fuller, and for good cause shown,

Plaintiffs’ motion was granted and an Amended Complaint was filed on February 2,

2007. The time to file the Amended Complaint was extended implicitly as Judge

Fuller granted the Motion to Amend to Add a Party after the scheduling order

deadline, and “[t]rial judges are presumed to know the law and to apply it in making

their decisions.” Burrell v. Bd. of Trustees of Georgia Military College, 125 F.3d

1390, 1395 (11th Cir. 1997) (citing Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct.

3047, 3057, 111 L.Ed.2d 511 (1990)(overruled on other grounds, Ring v. Arizona, 536

U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)). 

 Defendant Berry received notice of the institution of this action and he will not

be prejudiced in maintaining a defense on the merits. “Notice of the action, not notice

of the incident giving rise to the action is the crucial requirement.” Land v. Huffman

Mfg. Co., 420 F.Supp. 459, 460-1 (M.D. Ala. 1976). On February 2, 2007, Judge

Fuller granted leave to Amend to Add a Party after the expiration of the 120 day

deadline as set forth in ALA. R. CIV. P. 15(c)(3). The Amended Complaint was filed

the same day, and Berry was served with the Amended Complaint on February 7,

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2007. Plaintiffs filed the Amended Complaint quickly, and Defendant Berry will not

be prejudiced to the point of being unable to defend this action on the merits.

To date, Plaintiffs and Defendant Young are still in the process of exchanging

discovery and have only taken the deposition of State Trooper Obregon. This case is

still in its infancy as is the discovery process. Plaintiffs, upon its own initiative and

the urging of the Court in its Order, will gladly provide Berry with a copy of all

documents exchanged in this matter. Also, the deposition of Trooper Obregon is

transcribed and available for viewing. At this point the depositions of James John,

Emory Young, Kirby Threat and any other potential deponent have not commenced.

Berry knew or should have know that, but for a mistake of the proper party, this

action would have been brought against him shortly after the accident and within the

statute of limitations. Berry gave a statement to Russell County Sheriff’s Deputy

Kirby Threat that indicated he was distracted by a woman wearing short shorts while

driving moments before and as the traffic accident was happening. However, the

statement to Trooper Obregon omitted details regarding the woman wearing short

shorts. Certainly, if Louis Berry admitted to Kirby Threat that he was distracted from

driving and that caused the accident, he should have known that an action would have

been brought against him.

Plaintiffs’ Amended Complaint arose out of the same conduct set forth in the

original Complaint. The Amended Complaint was timely served following the

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extension of time for service of the Amended Complaint, and Defendant Berry has

received notice of the institution of this action so as not to be prejudiced in

maintaining a defense on the merits. Based on his statements to Russell County

Sheriff’s Deputy Kirby Threat, Berry knew or should have known that but for a

mistake concerning the identity of the proper party, this action would have been

brought against him. As evidenced by the argument above, Defendant Berry’s

assertion of statute of limitations, laches, waiver, and estoppel are without merit as

well. Therefore, Defendant Berry was properly added to this action, and the claim

made in the Amended Complaint relates back to the original action. 

WHEREFORE, Plaintiffs respectfully request that Defendant Louis Berry’s

Motion to Dismiss be denied. 

 /s/ Ryan Wesley Shaw 

MICHEAL S. JACKSON [ASB-8173-078M]

RYAN WESLEY SHAW [ASB-2475-Y83S]

Attorneys for Plaintiffs

OF COUNSEL:

BEERS, ANDERSON, JACKSON,

 PATTY, VAN HEEST & FAWAL, P.C.

250 Commerce Street, Suite 100

P.O. Box 1988

Montgomery, Alabama 36102

(334) 834-5311 Phone

(334) 834-5362 Facsimile

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CERTIFICATE OF SERVICE

I hereby certify that on March 21, 2007, I electronically filed the foregoing with

the Clerk of Court using the CM/ECF system which will send notification of such

filing to the following:

Joshua J. Jackson, Esq. Patrick Norris, Esq.

SAMFORD & DENSON, LLP MCDANIEL, BAINS & NORRIS, P.C.

P.O. Box 2345 Two Metroplex Drive

Opelika, Alabama 36803-2345 Suite 504

Birmingham, Alabama 35209-6812

 /s/ Ryan Wesley Shaw 

OF COUNSEL

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