Wombles v. Hagans
| Decision Date | 14 November 2012 |
| Docket Number | CASE NO. 3:12-cv-532-TFM [wo] |
| Parties | ASHLEY WOMBLES, Plaintiff, v. LEONARD HAGANS, Defendant. |
| Court | U.S. District Court — Middle District of Alabama |
Pending before the Court is Defendant's Motion to Dismiss (Doc. 3, filed June 28, 2012). The Court has carefully reviewed the Motion to Dismiss, the briefs filed in support of and in opposition to the motion, and the supporting and opposing evidentiary materials. For good cause, the Court orders that the defendant's Motion be GRANTED.
The district court has diversity jurisdiction over the claims in this action pursuant to 28 U.S.C. § 1332. The plaintiff is a resident and citizen of of Phenix City, Russell County, Alabama, and the defendant is a resident and citizen of the State of Georgia. See Doc. 1 at 3. The plaintiff's complaint alleges that she is entitled to damages in the amount of $100,000, plus costs; thus the amount in controversy exceeds $75,000.00. The parties do not contest personal jurisdiction or venue, and there are adequate allegations to support both.
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint.Gilmore v. Day, 125 F. Supp.2d 468, 471 (M.D. Ala. 2000). It is a low threshold for the non-moving party to survive a motion to dismiss for failure to state a claim in order to reflect the liberal pleading requirements set forth in the Federal Rules of Civil Procedure. Ancata v. Prison Health Services., Inc., 769 F.2d 700, 703 (11th Cir. 1985); see Gilmore, 125 F.Supp.2d at 471 (citing Ancata). In deciding a 12(b)(6) motion to dismiss, the court will accept the petitioner's allegations as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L. Ed.2d 59 (1984); Ellis v. General Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir. 1998); Roberts v. Florida Power & Light Co., 146 F.3d 1305, 1307 (11th Cir. 1998) (citing Lopez v. First Union National Bank of Florida, 129 F.3d 1186, 1189 (11th Cir. 1997)). However, "[c]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004) (quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)); see also Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974) ().1
On August 10, 2009, Ashley Wombles ("Plaintiff" or "Wombles") was traveling eastbound on U.S. Highway 80 in Phenix City, Russell County, Alabama. See Doc. 1-3 at1. Wombles was stopped for traffic behind another vehicle as a school bus was unloading passengers. Id. Leonard Hagans ("Defendant" or "Hagans") was traveling behind Wombles at the time traffic came to a stop. Id. Wombles asserts that Hagans' negligent operation of his vehicle caused him to strike Wombles from the rear with such force that it caused Wombles' vehicle to lurch forward, colliding with the vehicle in front of her. Id. Wombles was required to receive medical treatment as a result of the car accident. Id.
On August 10, 2011, Wombles filed a complaint in the Circuit Court of Russell County, Alabama alleging negligence against Hagans. See Doc 1-3 at 3. On June 21, 2012, Hagans filed a Notice of Removal, removing the claim from the Circuit Court of Russell County, Alabama to this Court on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. See Doc. 1. On June 28, 2012, Hagans filed the pending Motion to Dismiss alleging that the filing of this action is in violation of the prescribed two-year statute of limitations for personal injury claims set forth in ALA. CODE § 6-2-38. See Doc. 3. Prior to the instant action being filed, Hagans filed a petition for relief under Chapter 13 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the Middle District of Georgia, Macon Division on June 10, 2010. See Doc. 17 at 1. The filing of the Chapter 13 petition placed an automatic stay subject to 11 U.S.C. § 362 on all judicial proceedings against the debtor, Hagans. See Doc. 4 at 4. On November 8, 2011, Wombles received notice of the stay. On March 29, 2012, Wombles requested relief from the stay via consent order from Hagans' bankruptcy attorney. See Doc. 17 at 1. The consent order was never finalized and submitted to thebankruptcy court. See Doc. 17 at 2. However, on May 23, 2012, the bankruptcy proceeding was dismissed. See Doc. 20 at 5.
Defendant argues that the filing of the complaint in the instant action violated the automatic stay that was issued after the filing of the Chapter 13 bankruptcy proceeding. See Doc. 4 at 3. Defendant asserts that due to the automatic stay, any complaint filed against the debtor is void. Id. Additionally, Defendant asserts that because Plaintiff filed the void complaint on the last day possible to file within the two-year statute of limitations, Plaintiff is now time-barred from refiling a complaint. See Doc. 4 at 3-4. However, Defendant concedes that upon dismissal of the Chapter 13 bankruptcy proceeding, Plaintiff had a thirty-day window to refile this action, the commencement of which was previously stayed. See Doc. 20 at 4-5 (citing 11 U.S.C. § 108(c)). Defendant asserts that Plaintiff had from May 23, 2012, through June 22, 2012 to dismiss the instant case and re-file in order to rectify the voided complaint. See Doc. 20 at 5.
Plaintiff rebuts these assertions, and avers that at the time of filing the instant action, she had no notice of the pending bankruptcy, thus she had no notice of the automatic stay. See Doc. 17 at 4. It is well settled that a "debtor who has filed for [. . .] bankruptcy enjoys an automatic stay against actions to enforce, collect, assess or recover claims against thedebtor or against property of the estate."2 United States v. White, 466 F.3d 1241, 1244 (11th Cir. 2006) (citing 11 U.S.C. § 362(a)). "It is not necessary that the Debtor or the Court take any affirmative action, such as entering a specific order, to give rise to the automatic stay as the filing of the petition gives rise to the automatic stay." In re Briskey, 258 B.R. 473, 476 (Bankr. M.D. Ala. 2001). As a result of the automatic stay provision in § 362(a) "[i]t is the law of this Circuit that '[a]ctions taken in violation of the automatic stay are void and without effect.'" Id. (quoting Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir. 1982)). It has been held that "even the initiation of a lawsuit against a debtor is prohibited by the automatic stay." In re State Airlines, Inc., 873 F.2d 264, 265 n. 1 (11th Cir. 1989). However, the law still provides a plaintiff the opportunity to file an action against a debtor, but they must seek "permission of the bankruptcy court before commencing the action against the debtor." Id.
Plaintiff's argument rests on the notion that because she did not have notice of the bankruptcy proceeding, it was impossible for her to seek permission from the bankruptcy court. See Doc. 17 at 4. Plaintiff also asserts her diligence because upon receiving notice of the pending bankruptcy proceeding and the automatic stay, she attempted to lift the stay through the bankruptcy court. Plaintiff argues that her delay in seeking to lift the stay shouldbe exused because she did not receive consent from Defendant's bankruptcy attorney in a timely manner. Id.
Plaintiff's argument fails for two reasons. First, several courts have held that "[e]ven actions taken without notice of the bankruptcy are void ab initio."3 In re Miller, 07-10184-BKC-RBR, 2007 WL 656556 (Bankr. S.D. Fla. Feb. 27, 2007); see also In re Robinson, 02-17467-WHD, 2006 WL 6593115, at *2 (Bankr. N.D. Ga. Oct. 12, 2006) (); and In re Peralta, 317 B.R. 381, 389 (B.A.P. 9th Cir. 2004) (). In fact, once Plaintiff received knowledge of the stay, she was required to take affirmative action to undo the violation of the automatic stay. See In re Briskey, 258 B.R. 473, 477 (Bankr. M.D. Ala. 2001) (); and S. Dallas Water Auth. v. Guarantee Co. of N. Am., USA, 767 F. Supp. 2d 1284, 1297-98 (S.D. Ala. 2011) (). Since a complaint against a debtor is void ab initio, Plaintiff's lack of knowledge cannot serve as a basis to allow her void complaint to proceed.
Second, although the Court takes notice of Wombles' good faith effort to lift the stay by consulting with Defendant's bankruptcy attorney, the fact is, no such permission was ever granted. Plaintiff received Defendant's Notice of Stay on November 8, 2011. See Docs. 17 at 3, 17-1 at 3. Plaintiff states that she immediately contacted Defendant's bankruptcy attorney to seek consent to this action. Id. Plaintiff sent a Motion for Relief from Stay and a proposed consent order via e-mail on March 29, 2012. See Docs. 17 at 3-4, 17-1 at 6-12. On April 10, 2012, Defendant's bankruptcy attorney sent Plaintiff a signed copy of the proposed order. See Docs. 17 at 4, 17-1 at 15. Plaintiff requested that an official copy be signed and submitted to the bankruptcy court; however, no official copy was ever...
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