Patricia Jackson v. The Kroger Co.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13375
Non-Argument Calendar
____________________
PATRICIA JACKSON,
Plaintiff-Appellant,
versus
THE KROGER CO.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:23-cv-02328-TWT
____________________
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2 Opinion of the Court 23-13375
Before J ILL PRYOR , BRANCH, and G RANT, Circuit Judges.
PER CURIAM:
Patricia Jackson filed a personal injury lawsuit against The
Kroger Co. on April 24, 2023, in Georgia’s Gwinnett County State
Court. Georgia’s two-year statute of limitations on her claim
expired on May 2, 2023. On May 23, Kroger filed a special
appearance answer in state court and raised the defense of
insufficient service of process. That same day, it also filed a motion
to dismiss for the same defects in service of process. Kroger then
removed the case to federal court on May 24, and Jackson served
Kroger on May 31. The district court granted Kroger’s motion to
dismiss, concluding that Jackson’s claim was barred by the state
statute of limitations.
On appeal, Jackson makes two principal arguments. First,
she argues that the district court erred by using Georgia law to
evaluate her service of process. And second, she argues that the
district court abused its discretion by denying her request for a
voluntary dismissal without prejudice.1
We review de novo the district court’s interpretation and
application of a statute of limitations. Foudy v. Miami-Dade Cnty.,
823 F.3d 590, 592 (11th Cir. 2016). When sitting in diversity
1 Jackson also argues that dismissal with prejudice was too extreme of a
sanction for the district court to have ordered. But the district court did not
dismiss her complaint as a sanction.
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23-13375 Opinion of the Court 3
jurisdiction, federal courts apply state substantive law. Erie R.R. Co.
v. Tompkins, 304 U.S. 64, 78 (1938). One such substantive law is the
applicable state statute of limitations. Guar. Tr. Co. of New York v.
York, 326 U.S. 99, 110 (1945). Because Georgia courts have
interpreted Georgia’s service of process statute as an integral part
of the state statute of limitations, Georgia law also governs
whether service made after the statute of limitations expires relates
back to the date the action was filed. Cambridge Mut. Fire Ins. v. City
of Claxton, 720 F.2d 1230, 1232–33 (11th Cir. 1983). The district
court properly evaluated Jackson’s service of process under
Georgia law.2
The district court did, however, err by refusing to consider
Jackson’s request for a voluntary dismissal. The court concluded
that, because Jackson had not complied with Federal Rule of Civil
Procedure 7(b) by filing a formal motion, it could not grant her
request for a voluntary dismissal. But “Rule 41(a)(2), by its plain
language, doesn’t require a motion.” Sanchez v. Disc. Rock & Sand,
Inc., 84 F.4th 1283, 1292 (11th Cir. 2023). The district court need
only be alerted of the plaintiff’s request for a court-ordered
voluntary dismissal. Id. Accordingly, we VACATE and REMAND
for the district court to consider Jackson’s request for a voluntary
dismissal.
2 On appeal, Jackson does not argue that she complied with the state-law
service of process requirements. As a result, she has forfeited any challenge to
the district court’s conclusion that she did not comply. See Sapuppo v. Allstate
Floridian Ins., 739 F.3d 678, 681–82 (11th Cir. 2014) (collecting cases).
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