Jones v. Preuit & Mauldin

• Citation: 586 F. Supp. 1563
• Decision Date: 15 June 1984
• Docket Number: Civ. A. No. 84-AR-5131-NW.
• Parties: Samuel JONES, Jr., Plaintiff, v. PREUIT & MAULDIN, etc., et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

586 F. Supp. 1563

Samuel JONES, Jr., Plaintiff, v. PREUIT & MAULDIN, etc., et al., Defendants.

Civ. A. No. 84-AR-5131-NW.

United States District Court, N.D. Alabama, Northwestern Division.

June 15, 1984.

C.V. Stelzenmuller, Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Ala., Harold L. Speake, Speake, Speake & Reich, Moulton, Ala., for plaintiff.

T. Michael Putnam, Potts, Young, Blasingame, Suttle & Putnam, Florence, Ala., for defendants.

MEMORANDUM OPINION

ACKER, District Judge.

This action was brought by plaintiff, Samuel Jones, Jr. (Jones), pursuant to 42 U.S.C. § 1983 charging that certain of plaintiff's property was wrongfully seized under color of state law by constitutional violation inherent in the attachment procedure. The portion of the complaint here pertinent alleges that the "procedure did not comply with the requirements of the Fourteenth Amendment concerning deprivations of property without due process of law in relation to prejudgment seizures of property". The alleged constitutional deprivation occurred on April 8, 1982. Jones filed his complaint on February 24, 1984. Defendants have filed a motion to dismiss the complaint, asserting as an absolute defense the statute of limitations of one year. If defendants are correct and if the applicable statute of limitations is one year, then plaintiff is clearly barred on the face of his complaint. If, however, the applicable statute of limitations is three years, as Jones contends, then his action may proceed to a hearing on the merits.

It no longer requires citation of authority for the proposition that because § 1983 itself contains no statute of limitations, the federal courts look to and apply the state statute of limitations most nearly analogous to the particular § 1983 claim being brought. However, as was eloquently elucidated by Hon. Robert Propst in Fomby v. City of Calera, 575 F.Supp. 221, 223 (N.D.Ala.1983), "the choice of a limitations period for a federal cause of action is itself a question of federal law". (emphasis supplied). This Court thoroughly agrees with Judge Propst. Judge Propst's persuasive rationale is reminiscent of one of the opening scenes in Gone With The Wind, which contains the following dialogue taking place among field hands at the close of the day, with Tara in the distant background. The scene in the screen play is called "Quitting Time at the Plantation". Most serious moviegoers will remember:

Scene

Cotton field, with field hands at work plowing furrows. The bell at Tara is heard faintly. One of the hands, Elijah, stops.

Elijah: Quittin' time!

Another huge black man, known as Big Sam, turns on Elijah sharply:

Big Sam: Who said?

Elijah: I sez.

Big Sam: You can't sez. I'se de foahman. I'se de one dat sez when it's time to quit He calls out loudly to the other hands. QUITTIN' TIME!

To paraphrase Big Sam inversely and to reiterate Judge Propst, it is the federal court which says when it is "STARTIN' TIME" under § 1983. Although the federal court must look to the state law for the appropriate statute of limitations, it is not the state which "sez" what particular statute of limitations the federal court must apply. The state simply furnishes its various statutes of limitations for perusal and selection by the federal court in the context of the particular § 1983 complaint.

Jones here urges that the Alabama statute of limitations more nearly analogous to his situation is Ala.Code § 6-6-148 (1975), which reads as follows:

At any time within three years of the suing out of the attachment, before or after the action is determined, the defendant in attachment may commence an action on the attachment bond and may recover such damages as he has actually sustained if the attachment was wrongfully sued out and, if sued out of maliciously as well as wrongfully, the jury may, in addition, give vindictive damages.

On the other hand, defendants assert that the here appropriate statute of limitations is Ala.Code § 6-2-39(a)(5) (1975), which reads as follows:

(a) The following must be commenced within one year:

* * * * * *

(5) Actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section.

Jones must acknowledge that his is not a suit on a bond, which admittedly is a specialized form of contract and, if sued upon, constitutes an action ex contractu. Rather, Jones insists that his action, although admittedly ex delicto, is controlled by the three year statute provided by Ala.Code § 6-6-148 (1975) for suits on attachment bonds. He relies entirely upon a dictum in Goldstein v. Nobles, 198 Ala. 430, 73 So. 822 (1916). This hoary case contains language which Jones would interpret to give him a three year statute of limitations. He would give a significance to Goldstein which does not bear up under careful analysis. The pertinent language from Goldstein is as follows:

Section 2966 of the Code of 1907 6-6-148 authorizes suit upon the bond any time within three years before or after suit is determined, and our court has held that this right exists as to the commonlaw action as well as a suit upon a bond. Alsop v. Lidden, 130 Ala. 553, 30 South. 401; Brown v. Master, 104 Ala. 463, 16 South. 443. It is true these cases construed the statute as it existed prior to the Code of 1907, and a part of section 565 of the Code of 1896 (now section 2966 of the Code of 1907) was left out of the present Code, but there was no change as to the right to bring the action either before or after the determination of the suit. It has also been held that this statute applies to actions for the wrongful suing out of garnishments as well as attachments. Barber v. Ferrill, 57 Ala. 446. Hence the trial court did not err in overruling the defendant's demurrer to the complaint for failing to aver that the suit had been determined, or in sustaining the demurrers to the special pleas setting up that this action was prematurely brought. (emphasis supplied).

198 Ala. at 431-32; 73 So. at 823.

To understand Goldstein the first important fact to recognize is that the issue presented here by Jones was not presented in Goldstein. Nowhere was the Supreme Court in Goldstein confronted with the question of whether or not the victim of a wrongful attachment can bring a tort action for wrongful attachment at any time within three years after the occurrence. Rather, in Goldstein the issue was simply whether or not a tort action for an allegedly wrongful attachment can be brought before a determination in the main case of the question of whether or not the attachment was, in fact or law, erroneous and therefore "wrongful". If the Alabama Court really meant to say that there is a three year statute of limitations for the tort of wrongful attachment (which this Court disputes, infra) its inartful expression of the thought in Goldstein was not a part of its holding, was unnecessary to its decision, and thus was pure dictum. Dictum is not the stuff for the fashioning of a new § 1983 limitation.

Secondly, and more importantly, this Court does not believe that the Alabama Court in 1916 either believed or intended to express a belief that the statute of limitations for wrongful attachment is three years in Alabama. Not only has the Alabama Court never reiterated or hinted any such intent between 1916 and this date in 1984, but that court's limited intent can be discerned from the language which the court actually used. Its language may have been somewhat misleading, but what it was trying to say becomes clear upon a careful reading. When that court said "section 2966 of the Code of 1907 § 6-6-148 authorizes suit upon the bond any time within three years before or after suit is determined, and our court has held that this right exists as to the common-law action as well as a suit upon a bond" (emphasis supplied), the argument was to justify the bringing of a common law action before a determination of the efficacy of the garnishment writ. 73 So. at 823. The gratuitous use of the words "or after" was not intended by the Alabama Court to be related grammatically to the three year statute of limitations, but rather to support the elimination of the defense of prematurity where such a suit is brought before a final determination of the legal effect of the attachment. While its grammar may have been imperfect, the Alabama Court's reasoning shines through.

Thirdly, the Alabama Court's citation of Alsop v. Lidden, 130 Ala. 548, 30 So. 401 (1901) and Brown v. Master, 104 Ala. 451, 16 So. 443 (1894), as authorities for its proposition again proves the limitation on that Court's holding. Neither Alsop nor Brown involve a choice between statutes of limitations. To the contrary, both of these earlier cases deal with the defense of prematurity where there had been no predetermination of a want of probable cause for an attachment or a garnishment. This is a distinction similar to the well recognized distinction between the cause of action known as "malicious civil prosecution" (which requires a prior adjudication against the prosecuting party) and the cause of action known as "abuse of process" (which does not require such a prior adjudication). The Alabama Court was, of course, correct in holding that the common law or ex delicto action for wrongful attachment does not have as a prerequisite a judicial determination that the attachment was wrongful. It is a non sequitur which the Alabama Court could not have meant to indulge to jump to the conclusion that a person having such an ex delicto cause of action can wait three years to bring suit simply because he can bring an action ex contractu on the attachment bond within three years.

Fourthly, the sharp difference between a contract claim and a tort claim cannot be overemphasized. In the classic tort action all actual damages (and even punitive damages under some circumstances) proximately caused by the wrongful act, are recoverable. However, in a suit on a...