Effect of the Statute of Limitations on a Complaint Filed without Bona Fide Intent to Serve the Defendants
ENT Associates of Alabama, P.A., et al. v. Lauryn Diane Hoke – Where a plaintiff has no bona fide intent to serve defendants at the time a complaint is filed or prior to the running of the statute of limitations, the action is not commenced and is time-barred.
On September 2, 2016, the Supreme Court of Alabama published its decision in ENT Associates of Alabama, P.A., et al. v. Lauryn Diane Hoke [Ms. 1141396] and Baptist ventures, Inc. d/b/a Montgomery Surgical Center, LLP v. Lauryn Diane Hoke [Ms. 1141401], — So.3d — (Ala. 2016), arising out of the medical malpractice claims made by Hoke against the Defendants.
On April 11, 2011, Hoke received medical treatment from the Defendants. On April 10, 2013, Hoke filed a medical malpractice suit against the Defendants in the Circuit Court of Montgomery County. Attorney John Loeschen signed the suit as counsel for plaintiff, but at the time of filing, Loeschen was not licensed to practice law in the State of Alabama. No attorney licensed to practice law in the State of Alabama was a signatory on the Complaint. The Complaint was electronically filed by Alabama attorney Benjamin Pool. Additionally, the Complaint did not included the addresses of the Defendants or contain any instruction for service of process.
Fifty-five (55) days after filing the Complaint, attorney Loeschen filed an application for admission to practice in Alabama, and identified attorney Pool as the local counsel of record in the Hoke matter. The Defendants were served with the Complain and Summons on June 18, 2013 (69 days after the Complaint was filed). Thereafter, the defendants moved to strike the complaint and dismiss the suit, arguing that the Complaint was a nullity under Rule VII of the Rules Governing Admission to the Alabama Bar because it had not been filed by an attorney licensed to practice law in Alabama. They further argued that because Hoke did not have an intent to serve the Defendants at the time her Complaint was filed and the two-year statute of limitations had run before the Defendants were served, Hoke’s medical malpractice claims were barred by the statute of limitations, under Alabama Code (1975) § 6-5-482.
After hearing evidence from the parties as to whether Pool was or was not intended to be counsel for Hoke at the time of the Complaint being filed, the Circuit Court certified to questions to the Supreme Court of Alabama, pursuant to Alabama Rule of Civil Procedure 5:
- Whether Hoke’s claims were barred by the applicable statute of limitations on the ground that the Complaint was a nullity because it was filed contrary to Rule VII of the Rules Governing Admission to the Alabama Bar since (a) it was filed by an out-of-state attorney who had not filed an application to appear as counsel pro hac vice, and (b) no Alabama-licensed attorney was identified on the Complaint; and
- Whether Hoke’s claims were barred by the applicable statute of limitations on the ground that Hoke did not have an intent to serve the Defendants at the time the Complaint was filed.
The Supreme Court of Alabama declined to address Question 1, concluding that the answer to Question 2 is dispositive of the appeals and pretermitted discussion of Question 1.
In answer to Question 2, the Alabama Supreme Court found no evidence to suggest that Hoke intended to serve process upon the Defendants at the time her complaint was filed. The Court noted that although “delay may not be evidence, in and of itself, of a lack of a bona fide intent to immediately serve the complaint at the time it is filed, delay in conjunction with the absence of evidence of any steps taken by the plaintiff to effectuate service at the time of filing the complaint is evidence of a lack of a bona fide intent to immediately serve the complaint.” See Precise v. Edwards, 60 So.3d 228 (Ala. 2010). The Supreme Court of Alabama held that the fact that the Defendants were in fact served within the timeframe set forth by Alabama Rule of Civil Procedure 4(b) has no bearing on the question or whether the action was timely commenced for the purposes of the statue of limitations.
The Court held that where there is no evidence that the plaintiff made any attempt to take any of the required steps to effectuate service upon the defendants at the time of the complaint was filed or any time thereafter, the plaintiff did not possess a bona fide intent to immediately serve the defendants at the time the complaint was filed, and the action was not commenced prior to the running of the statute of limitations, and is therefore time-barred pursuant to Alabama Code (1975) § 6-5-482.