ORDER

KRISTI K. DuBOSE, District Judge.

This action is before the Court on Defendant Richard Freeman's motion to dismiss or in the alternative, motion for summary judgment, Plaintiff Willie J. Figgers' response, and Freeman's reply (docs. 64, 69, 70). The Court addresses the motion as a motion for summary judgment.1 Upon consideration, the motion is GRANTED and Figgers' claims against Freeman are dismissed with prejudice.

I. Background

Figgers alleges that he was struck by a tractor trailer owned by Carroll Fulmer Logistics Corp. and driven by Freemen on July 20, 2015. Figgers alleges that Freeman and Fulmer were negligent (Counts Two and Four). Under Alabama law, a cause of action for negligence must be filed within two years from the date of the accident or injury. Ala. Code § 6-2-38(l).2 The initial complaint which named John Doe, as the driver of the tractor trailer, was filed July 20, 2017. The action was removed to this Court on October 27, 2017 (doc. 1). On December 28, 2017, Fulmer provided its initial disclosures to Figgers wherein Freeman was identified as the driver (doc. 11, doc. 30-1). The Rule 16(b) Scheduling Order set April 30, 2018 as the deadline for motions for leave to amend the pleadings or to join parties (doc. 12, ¶ 5).

Figgers' motion for leave to amend to substitute Freeman for the John Doe driver was filed December 5, 2018 (doc. 27). The motion was granted and Figgers filed the amended complaint on March 4, 2019 (docs. 34, 43). Fulmer moved to strike the amended complaint and the motion was denied (docs. 47, 57). The amended complaint was served upon Freeman on March 8, 2019 (doc. 51). The summons was served on March 18, 2019 (doc. 59). In response, Freeman filed the instant motion to dismiss, or in the alternative motion for summary judgment.

II. Statement of the law

A. Summary judgment

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) (Dec. 2010). Freeman, as the party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (the party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.") (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986)). In deciding whether Freeman has met his initial burden, the Court must review the record and draw all reasonable inferences therefrom in a light most favorable to Figgers, as the non-moving party. See Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999).

Once Freeman meets this responsibility, the burden shifts to Figgers, as the non-movant, to show the existence of a genuine issue of material fact that would preclude summary judgment. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "In reviewing whether the [non-movant has met the] burden, the court must stop short of weighing the evidence and making credibility determination of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505 (1986) ((bracketed text added). However, Freeman would be entitled to summary judgment if Figgers fails "to make a sufficient showing on an essential element of [his] case with respect to which [he has] the burden of proof.'" In re Walker, 48 F.3d 1161, 1163 (11th Cir. 1995) (quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552) (bracketed text added). Overall, the Court must "resolve all issues of material fact in favor of the [Plaintiff], and then determine the legal question of whether [Defendant is] entitled to judgment as a matter of law under that version of the facts." McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) (citing Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003)) (bracketed text added).

The mere existence of any factual dispute will not automatically require denial of a motion for summary judgment; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004). "An issue of fact is material if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. It is genuine if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (citation omitted).

B. Relation back

This action is before the Court on basis of diversity jurisdiction. 28 U.S.C. § 1332(a)(1). In an en banc decision, the Court of Appeals for the Eleventh Circuit held that Federal Rule of Civil Procedure "15(c)(1) allows federal courts sitting in diversity to apply relation-back rules of state law where, as here, state law provides the statute of limitations for the action." Saxton v. ACF Industries, Inc., 254 F.3d 959, 963 (11th Cir. 2001). Rule 15(c) states in relevant part as follows:

(c) Relation Back of Amendments.

Fed. R. Civ. P. 15(c)(1)(A).

Alabama law provides the applicable two-year statute of limitations for negligence actions. See Ala. Code § 6-2-38(l) ("All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years."). Therefore, the Court will apply Alabama's relation back principles. Rule 15(c) and Rule 9(h) of the Alabama Rules of Civil Procedure "allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted." Ex parte Lucas, 212 So.3d 921, 926 (Ala. 2016) (citations omitted).

Ala. R. Civ. P. 15(c).

Alabama Rule 9(h) states as follows:

Ala. R. Civ. P. 9(h).

"Construing Alabama's Rule 15(c)(4) and Rule 9(h) together, the relation-back standard under Alabama law (as recognized by both the Alabama Supreme Court and the Eleventh Circuit in the diversity context) is as follows:

Wyatt v. Georgia-Pacific LLC, 2018 WL 1308954, *2-3 (S.D. Ala. 2018) (emphasis in original) (quoting Saxton, 254 F.3d at 965) (other citations omitted).

"Thus, under Alabama law, an amendment substituting an actual defendant for a fictitious defendant relates back when: (1) the original complaint adequately described the fictitious defendant; (2) the original complaint stated a claim against the fictitious defendant; (3) the plaintiff was ignorant of the true identity of the defendant; and (4) the plaintiff used due diligence to discover the defendant's true identity." Id., (quoting Saxton, 254 F.3d at 965 (citation omitted). Under Alabama law, a "plaintiff is ignorant of the identity of a fictitiously named defendant when, after exercising due diligence to ascertain the identity of the party intended to be sued, he lacks knowledge at the time of the filing of the complaint of facts indicating to him that the substituted party was the party intended to be sued. Ex parte Lucas, 212 So.3d 921, 926 (Ala. 2016) (citations omitted) (emphasis in original). "`It is incumbent upon the plaintiff to exercise due diligence to determine the true identity of defendants both before and after filing the original complaint.'" Ex parte Integra LifeSciences Corporation, 2018 WL 4090569, *5 (Ala. 2018) (quoting Ex parte Hensel Phelps Const. Co., 7 So.3d 999, 1003 (Ala.2008)).

Additionally, the Alabama Supreme Court "has elaborated upon the requirement that the plaintiff be ignorant of the identity of the fictitiously named party by holding that the plaintiff must substitute the named defendant for the fictitious party within a reasonable time after determining the defendant's true identity." Ex parte Mobile Infirmary Ass'n, 74 So.3d 424, 429 (Ala. 2011) (citations omitted). Therefore, after the lawsuit is filed, "to invoke the relation back principle of Rule 15(c), a plaintiff ... must proceed in a reasonably diligent manner to determine the true identity of a fictitiously named defendants and to amend his complaint accordingly." Ex parte Hensel Phelps Constr. Co., 7 So.3d at 1003. (citation omitted). "Although the express language of the statute does not require the plaintiff to substitute the named defendant for the fictitious party within a reasonable time after determining the defendant's true identity, [the Alabama Supreme Court] has imposed such a duty." Ex parte Klemawesch, 549 So.2d 62, 64 (Ala.1989).

III. Analysis

Freeman argues that summary judgment should be granted in his favor because Figgers' negligence claims against him do not relate back to the original complaint and are barred by the two-year statute of limitation. Freeman argues that Figgers failed to exercise reasonable diligence in substituting Freeman after learning his identity.

As an initial consideration, the Court finds that the original complaint adequately described John Doe as the driver of the tractor trailer and that the original complaint stated a claim against him. Wyatt, 2018 WL 1308954, *3. (the first two elements). With respect to whether Figgers was ignorant of the true identity at the time the original complaint was filed, Freeman argues that his identity was made known to Figgers' first attorney in an October 2015 email, approximately 21 months before the original complaint was filed in July 2017 (doc. 64-1, copy of email). Freeman states that Figgers' first attorney confirmed in a July 2018 email that he had turned over his entire file, presumably including the 2015 email, to Figgers when he withdrew from the case (doc. 64-2, copy of email).

In response, Figgers argues that neither he nor his current counsel who filed the original complaint on Figgers' behalf were aware of the October 2015 email or its content.3 Figgers also points out that in the July 2018 email, his first counsel stated that "It appears that I provided copies of everything that was a part of my file to Mr. Figgers at the time I withdrew from representation." (doc. 69, p. 12, underlining in response). Arguably, an issue of fact may exist as to whether the October 2015 email was included in the file such that with the exercise of reasonable diligence — looking through the file — Figgers could have learned Freeman's identity.

However, there is no dispute of fact that Freeman's identity was disclosed to Figgers and his current counsel on December 28, 2017 in the initial disclosures (doc. 11, doc. 30-1).4 Thus, the Court looks to whether Figgers acted in a reasonably diligent manner to amend his complaint within a reasonable period of time after the initial disclosures. Ex parte Hensel Phelps Const. Co., 7 So.3d at 1003 (To invoke the relation back principle of Alabama Rule 15(c), the plaintiff "must proceed in a reasonably diligent manner to determine the true identity of a fictitiously named defendants and to amend his complaint accordingly.") (underlining added).

Figgers, however, waited until December 5, 2018, which was after the April 30, 2018, deadline for amendment of pleadings and joining of parties and nearly 12 months after the initial disclosure, to move to amend his complaint to substitute Freeman for the John Doe driver. Figgers has not offered any reason why he did not proceed in a reasonably diligent manner to move to amend. Instead, Figgers argues that the Court "previously addressed the issue on whether the Amended Complaint could stand" and "previously adjudicated" the matter when it granted his motion for leave to amend and denied Fulmer's motion to strike the amended complaint (doc, 69, p. 3-4). Figgers argues that because the matter has been decided and Fulmer did not appeal the decision, principles of res judicata and collateral estoppel prevent reconsideration of this matter. (Id., p. 4, 6, 9-10). 5

The Court disagrees with Figgers and finds that his argument does not provide a basis for denying Freeman's motion. When Figgers moved for leave to amend the complaint, he argued that Freeman was a necessary party, that leave to amend should be freely given under Rule 15(a) of the Alabama Rules of Civil Procedure,6 that there was good cause to allow the amendment, and that no party would be prejudiced (doc. 27). Figgers did not argue that the amended complaint would relate back to the original complaint (Id.). The Court ruled after consideration of Rule 16(b)(4) and 15(a)(2) of the Federal Rules of Civil Procedure (doc. 35). Importantly, the issue of whether Freeman had a viable statute of limitations defense was not addressed when the Court ruled on Figgers' motion for leave to amend the complaint.

Additionally, Fulmer moved to strike on basis that the amended complaint was untimely filed under S.D. Ala. Civ. L.R. 15, that it was prejudicial to Freeman because he would not have time to conduct discovery and prepare a defense, and because Figgers included certain counts in the amended complaint that the Court had already dismissed on summary judgment (doc. 47). In response, Figgers specifically acknowledged that Freeman had "not raised any Motion to Strike in reference to the matter", that Fulmer "lacks standing to argue the claims" of the then pro se Freeman, and that "[u]nder Rule 8 of the Federal Rules of Civil Procedure", Freeman could "answer and raise his own Claims and Defenses" (doc. 53, p. 2). The Court denied Fulmer's motion to strike the amended complaint and sua sponte struck the counts that had been dismissed on summary judgment. As Figgers anticipated (see doc. 53, p. 2), Freeman has now raised the statute of limitations defense through the instant motion.

IV. Conclusion

Lapse of nearly 12 months between the initial disclosures and the motion for leave to amend shows that Figgers did not exercise reasonable diligence to move to amend within a reasonable time period as required under Alabama law. See Ex parte Hensel Phelps Const. Co., 7 So.3d at 1004 ("Childers plainly failed to comply with the rules governing fictitious-party practice in his overall delay in ascertaining Hensel Phelps's identity and in waiting seven months after obtaining knowledge of the identity of Hensel Phelps as a defendant to amend his complaint."). Because Figgers' claims against Freeman do not relate back to the original complaint, they are barred by the statute of limitations. Accordingly, summary judgment is GRANTED in favor of Freeman and the claims against Freeman are dismissed with prejudice.

DONE and ORDERED.