Vincent Jester v. Emerson Climate Technologies, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 12, 2021
• Docket: 20-13147
• Status: Unpublished

Opinion

USCA11 Case: 20-13147 Date Filed: 03/12/2021 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13147 Non-Argument Calendar ________________________

D.C. Docket No. 1:19-cv-05735-WMR

VINCENT JESTER,

Plaintiff - Appellant,

versus

EMERSON CLIMATE TECHNOLOGIES, INC., EMERSON ELECTRIC CO., d.b.a. Fusite, JOHN DOE A, JOHN DOE B, JOHN DOE C, et al.,

Defendants - Appellees.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(March 12, 2021)

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges. USCA11 Case: 20-13147 Date Filed: 03/12/2021 Page: 2 of 12

PER CURIAM:

Vincent Jester appeals a district court’s dismissal of his First Amended

Complaint as barred by the statute of limitations. Jester brought a products liability

action against Emerson Climate Technologies (Emerson) to recover for personal

injuries he sustained on September 18, 2016. Jester alleged that on that date, an

Emerson HVAC unit he was working on spewed hot oil and severely burned him.

Jester first sued Emerson on July 23, 2018 in the State Court of Gwinnett

County, Georgia. The complaint was timely: it was filed within the two-year

statute of limitations. See O.C.G.A. § 9-3-33. Emerson removed the action to the

United States District Court for the Northern District of Georgia based on diversity

jurisdiction. The parties later filed a Joint Stipulation of Voluntary Dismissal

Without Prejudice on May 22, 2019. Per the Joint Stipulation, Plaintiff agreed that

any action recommenced “pursuant to O.C.G.A. § 9-2-61 . . . shall be filed in the

United States District Court for the Northern District of Georgia – Atlanta

Division.”

Section 9-2-61(a) provides that:

[w]hen any case has been commenced . . . within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later . . . provided, however, if the dismissal or discontinuance occurs after the expiration of the

2 USCA11 Case: 20-13147 Date Filed: 03/12/2021 Page: 3 of 12

applicable period of limitation, this privilege of renewal shall be exercised only once.

Additionally, when a renewal is filed after the statute of limitations has run, a

plaintiff is required “to show entitlement to file a renewal suit and that he followed

the proper procedure to file a renewal suit.” Whitesell v. Ga. Power Co., 800

S.E.2d 370, 371 (Ga. App. 2017).

Seeking to avail himself of this renewal right, Jester refiled his complaint on

November 20, 2019 (November Complaint). However, contrary to the Stipulation,

Jester refiled in the State Court of Gwinnett County, Georgia. On December 20,

2019, Defendants removed the action to the Northern District of Georgia and

moved to dismiss the Complaint under Fed. R. Civ. P. 12(b)(6) as barred by the

statute of limitations. Jester filed his First Amended Complaint (Amended

Complaint)—per Fed. R. Civ. P. 15(a)(1)(c)—on January 6, 2020. Emerson again

moved to dismiss the complaint as time barred.

The District Court granted Emerson’s Motion to Dismiss Plaintiff’s First

Amended Complaint. The court explained that the Amended Complaint was filed

after the expiration of the two-year statute of limitations and did not meet the

requirements of § 9-2-61. The November Complaint was also not a proper renewal

action because Jester did not affirmatively show his right to renewal and because it

was filed in state court, contrary to the Stipulation. Finally, the district court found

that the Amended Complaint could not relate back to the November Complaint

3 USCA11 Case: 20-13147 Date Filed: 03/12/2021 Page: 4 of 12

because the November Complaint was an invalid attempt at renewal—so there was

nothing to relate back to—and in any event it did not cure the deficiencies.

After thorough consideration of the record and Georgia state law, we reverse

the District Court. Jester satisfied the requirements of § 9-2-61 in his Amended

Complaint, which relates back to his November Complaint. Accordingly, he

instituted a proper renewal action. Jester’s violation of the Stipulation was not fatal

to his claim.

I.

We review de novo whether claims are barred by the statute of limitations.

Powers v. Graff, 148 F.3d 1223, 1226 n.6 (11th Cir. 1998). We review a district

court’s determination of whether an amended complaint relates back under Fed. R.

Civ. P. 15 for abuse of discretion. Andrews v. Lakeshore Rehab. Hosp., 140 F.3d

1405, 1409 n.6 (11th Cir. 1998).

The district court abused its discretion in finding that the Amended

Complaint did not relate back because 1) it gave improper effect to the violation of

the Stipulation; and 2) it clearly erred in finding that “there [wa]s nothing ‘back’ to

which the First Amended Complaint could ‘relate.’” Because the relation back

doctrine can be stacked on to the renewal statute and the Amended Complaint did

make a sufficient, affirmative showing of renewal, the Amended Complaint should

not have been dismissed, and we must reverse the district court.

4 USCA11 Case: 20-13147 Date Filed: 03/12/2021 Page: 5 of 12

II.

Georgia law allows for an Amended Complaint to relate back to a timely

renewal complaint and cure any deficiencies. See Strickland v. Geico Gen. Ins.

Co., 2021 WL 236042, at *2 (Ga. Ct. App. Jan. 25, 2021). In Strickland, the

plaintiff filed a complaint on July 5, 2018—within the two-year statute of

limitations for their July 25, 2016 injury. Id. at *1. On April 15, 2019, the plaintiff

voluntarily dismissed their complaint, and then refiled within the six-month period

allowed by § 9-2-61 on June 24, 2019. Id. The defendant challenged the

sufficiency of the complaint, arguing that it did not sufficiently plead a valid

renewal action. The plaintiff filed an amended complaint on November 29, 2019—

after the original two-year statute of limitations had expired and after the six-

month renewal window had expired. Id.

The Georgia Court of Appeals reversed the lower court’s dismissal, finding

that Georgia’s relation-back provision applied.1 Id. at *2 (explaining that the

1 The Strickland court applied Georgia’s relation-back provision, whereas the Federal relation- back provision applies to Jester’s case. This is a distinction without difference, however. Georgia’s statute provides: “Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” O.C.G.A § 9- 11-15(c). The Federal provision is nearly identical: “An amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Like the Georgia rule, Rule 15 provides that leave to amend shall be “freely given” and a refusal to do so can be an abuse of discretion. See Foman v. Davis, 371 U.S. 178, 182 (1962).

5 USCA11 Case: 20-13147 Date Filed: 03/12/2021 Page: 6 of 12

“relation-back provision should be liberally construed to effect its purpose of

ameliorating the impact of the statute of limitation.”) (internal quotation mark

omitted). Because “the amendment sought only to add necessary factual allegations

relating to renewal that were omitted from the original renewal complaint,” the

amended complaint related back. Id. That the original renewal complaint was not

sufficiently pled did not make it “void,” nor did it preclude the Amended

Complaint from relating back to it. “[A] party may cure a defect in a pleading

through an amendment that relates back” even when the “defects include the

omission of factual allegations that are conditions precedent to the existence of the

right of action.” Id. at *3 (internal quotation mark omitted).

Here, Jester’s litigation mirrors that of the plaintiff in Strickland. Jester’s

Amended Complaint added only necessary factual allegations, so it falls within the

purview of Rule 15. Furthermore, when “the underlying facts or circumstances . .

may be a proper subject of relief, [a plaintiff] ought to be afforded an opportunity

to test his claim on the merits.” Foman, 371 U.S. at 182. Defendants presented no

evidence of bad faith, undue delay, or dilatory motive by Jester that resulted in his

need to file the Amended Complaint. See id. Accordingly, it was an abuse of

discretion for the district court to not apply the doctrine.

6 USCA11 Case: 20-13147 Date Filed: 03/12/2021 Page: 7 of 12

III.

The district court also erred in finding that the Amended Complaint did not

“cure the procedural defects of the renewal action.” It is undisputed that Jester

violated the Stipulation by filing the renewal complaint in state court. But

enforcement of the stipulation does not mean “there is nothing ‘back’ to which the

First Amended Complaint could ‘relate.’”

A stipulation is “any agreement made by attorneys respecting business

before the court.” McDaniel v. Oliver, 322 S.E.2d 1, 2 (Ga. Ct. App. 1984)

(internal quotation mark omitted). “[P]arties to stipulations and agreements entered

into in the course of judicial proceedings will not be permitted to take positions

inconsistent therewith in the absence of fraud, duress or mistake.” Thompson v.

Thompson, 228 S.E.2d 886, 1887 (Ga. 1976). “A stipulation between parties,

particularly in the litigation context when approved by the court is a binding

contract enforceable on the basis of contract principles.” Stubbs v. Wyndham

Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1365 (11th Cir. 2006).

One may contract away his rights so long as it is not contrary to public policy.

Brown v. Five Points Parking Ctr., 175 S.E.2d 901, 903–04 (Ga. Ct. App. 1970).

Jester argues that the proper way for Emerson to enforce the Stipulation

would be through an improper venue motion—not a motion to dismiss—but that

the Stipulation is ineffective anyway because a party may not change the law by

7 USCA11 Case: 20-13147 Date Filed: 03/12/2021 Page: 8 of 12

stipulation. See Heavey v. Sec. Mgmt. Co., Inc., 198 S.E.2d 694, 696 (Ga. Ct. App.

1973). Emerson argues that they are not seeking dismissal based on improper

venue, but rather that by agreeing to the Stipulation, Jester “waive[d] the benefit”

of § 9-2-61 that would have allowed him to file a renewal action in state court. Id.

This supports Emerson’s contentions that Jester did not file a proper renewal

action—since he did not file in the parties’ chosen forum.

As Emerson seems to acknowledge in their brief, the Stipulation amounted

to a choice of forum clause. Forum selection clauses are presumptively

enforceable. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972).

Generally, forum selection clauses are enforced either through a Rule 12(b)(3)

motion for dismissal based on improper venue or through a motion to transfer to

the proper venue pursuant to 28 U.S.C. § 1404(a). See e.g., Slater v. Energy Servs.

Grp. Int’l, Inc., 634 F.3d 1326, 1332–33 (11th Cir. 2011).

Emerson made clear in their brief that they are not seeking Rule 12(b)(3)

dismissal, nor do they request a transfer. Emerson does not need to seek

enforcement of the clause because it has already been enforced: Emerson removed

the case to the District Court for the Northern District of Georgia – Atlanta

Division. To that end, the forum that was chosen by the parties is the forum where

the case is being litigated.

8 USCA11 Case: 20-13147 Date Filed: 03/12/2021 Page: 9 of 12

Additionally, Georgia’s “renewal statute is remedial in nature; it is construed

liberally.” Hobbs v. Arthur, 444 S.E.2d 322, 360 (Ga. 1994). Therefore, since

Emerson is receiving the benefit of their bargain with regard to the choice of

forum, Jester’s filing in state court should not prevent him from availing himself of

§ 9-2-61.

IV.

Because Jester’s Amended Complaint relates back and is not improper based

on the Stipulation violation, the only question that remains is whether the

Amended Complaint affirmatively shows entitlement to file a renewal suit and

follows the proper procedure.

To show the right to bring a renewal suit after the expiration of the statute of

limitations, a petition must:

show affirmatively that the former petition was not a void suit, that it is such a valid suit as may be renewed under [O.C.G.A.] § 9-2-61, that it is based upon substantially the same cause of action, and that it is not a renewal of a previous action which was dismissed on its merits so that the dismissal would act as a bar to the rebringing of the petition. Whitesell, 800 S.E.2d at 371 (emphasis omitted). In Whitesell, a complaint that

stated only: “This is a renewal action against [defendant] pursuant to [O.C.G.A.] §

9-2-61” and then specified the county and case number where the lawsuit was

originally filed was not enough to affirmatively show a right to renewal. Id. at 372.

9 USCA11 Case: 20-13147 Date Filed: 03/12/2021 Page: 10 of 12

Similarly, in Morrison v. Bowen, a paragraph stating that plaintiff “filed this

action originally on September 21, 1954, in this court against the same defendants,

said case being No. 18,634, and thereafter on May 29, 1961, a judgment was

entered dismissing said case, and now within the time provided by law plaintiff

renews her case” was also not sufficient. 127 S.E.2d 194, 195 (Ga. Ct. App. 1962).

The pleading in Morrison was insufficient because the plaintiff had not

affirmatively shown that the former petition was not a void suit, that it was based

upon substantially the same cause of action, or that the previous action had not

been dismissed on the merits. Id.

Here, Jester made the requisite showing to properly renew his action under

§ 9-2-61. As required by Whitesell, Jester affirmatively showed that the former

petition was not a void suit, the new petition was based upon substantially the same

cause of action, and the previous action was not dismissed on the merits.

Specifically, Jester pled in the Amended Complaint:

Plaintiff is exercising his right to renew a previously dismissed action withing six months of dismissing a previously dismissed lawsuit in accordance with O.C.G.A. Section 9-2-61 and shows unto this Court: a. The plaintiff has previously filed a lawsuit against these same defendants See Case No.1:18-cv-04022-WMR [hereinafter referred to as the “PRIOR LAWSUIT”]. A copy of the PRIOR LAWSUIT is attached as Exhibit “A”; b. The instant lawsuit is based upon substantially the same cause of action as the PRIOR LAWSUIT; c. The PRIOR LAWSUIT was not dismissed on its merits;

10 USCA11 Case: 20-13147 Date Filed: 03/12/2021 Page: 11 of 12

d. The PRIOR LAWSUIT was properly dismissed by stipulation on May 22, 2019. e. Plaintiff commenced the instant lawsuit in the State Court of Gwinnett County on November 20th, 2019 or within six months of the PRIOR LAWSUIT being dismissed; f. The PRIOR LAWSUIT was not a void suit; g. The PRIOR LAWSUIT was a valid lawsuit that is renewable under O.C.G.A. § 9–2–61; h. The instant action is not a renewal of a previous action which was dismissed on its merits so that the dismissal would act as a bar to the bringing of the petition.

Jester’s allegations adequately address each of the elements required by Whitesell.

Jester’s Amended Complaint provided much more information and detail

than the complaints at issue in both Whitesell and Morrison. In particular, Jester

explained the dismissal of his prior lawsuit: that it was not dismissed on the merits,

was not void, and was voluntarily dismissed. He also attached the original

complaint, which supports his allegation that the renewed suit is based on

substantially the same cause of action. Relying on an attached exhibit is

permissible, as “a plaintiff may make the requisite showing by proof outside the

renewed complaint.” Belcher v. Folsom, 573 S.E.2d 447, 449 (Ga. Ct. App. 2002)

(explaining that proof may be made by offering evidence or requesting that a court

take judicial notice).

The Amended Complaint contains more than “[t]hreadbare recitals of the

elements of a cause of action.” Cf. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

While the paragraph mirrors the law as stated in Whitesell, it provides the facts

11 USCA11 Case: 20-13147 Date Filed: 03/12/2021 Page: 12 of 12

necessary to explain why the suit meets the requirements of Georgia’s renewal

statute. At the motion to dismiss stage, we accept all factual allegations in the

complaint as true and draw all reasonable inferences in favor of the claimant. See

Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commc’ns, Inc., 376 F.3d 1065,

1070 (11th Cir. 2004). Having done so here, Jester has stated a claim.

V.

For the reasons discussed above, Jester has successfully pled a renewal

action. He affirmatively showed his right to renewal, his Amended Complaint

relates back to his timely November complaint, and his violation of the Stipulation

is not fatal. Accordingly, we reverse the district court’s dismissal of Jester’s First

Amended Complaint.

REVERSED and REMANDED.