Taylor v. FedEx Corporation

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Summer Taylor,
Plaintiff,
v.
FedEx Corporation, et al.,
Defendants.
No. CV-24-00460-TUC-JCH
ORDER
Before the Court is Defendant Federal Express Corporation’s (“Federal Express’s”)
“Motion to Dismiss Pursuant to Statute of Limitations” (“Motion to Dismiss”) (Doc. 42).
Also before the Court are Plaintiff’s “Motion: Asking for Service Posting – by Mail or
Process Server Posrting [sic] on Door” (“Motion for Alternative Service”) (Doc. 45) and
Defendant Federal Express’s “Motion to Strike or in the Alternative Seek Leave to
Respond to Plaintiff’s Sur-Reply” (“Motion to Strike) (Doc. 48). For the following reasons,
the Court will deny the Motion to Dismiss and Motion for Alternative Service and grant
the Motion to Strike.
I. Procedural Background1
On August 18, 2025, the Court dismissed Plaintiff’s Second Amended Complaint
and granted leave to file a third amended complaint (“TAC”). Doc. 30. In early November
2025, Plaintiff filed her TAC (Doc. 38) and named as Defendants Federal Express and
Earnest Harris, the alleged driver of the Federal Express delivery truck who caused the
1 The Court’s August 18, 2025 Order (Doc. 30) provides a detailed summary of the
procedural history to that point. That portion of the Order is incorporated by reference.
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accident that gave rise to this suit. See Doc. 38. In the TAC, Plaintiff stated that she was a
citizen of Florida, Mr. Harris was a citizen of Arizona, and Federal Express was a citizen
of New Jersey. Doc. 38 at 3–4. In her prior complaints, Plaintiff stated she was a citizen of
Arizona and provided an Arizona address. See, e.g., Doc. 19 at 1, 3.
Federal Express waived service, Doc. 40, but in December 2025, Plaintiff filed a
Notice of Service Returned Unexecuted (Doc. 43) as to Mr. Harris. Plaintiff subsequently
filed her Motion for Alternative Service (Doc. 45) stating she had attempted to serve Mr.
Harris multiple times and requesting the Court allow Plaintiff to serve Mr. Harris “via the
United States postal service and the official posting by the Process Server . . . on the front
door of Mr. Harris[‘s] dwelling.” Id. at 3.
On December 8, 2025, Federal Express filed the instant Motion to Dismiss
(Doc. 42), arguing Plaintiff’s claims are barred by the statute of limitations. After the
Motion to Dismiss was fully briefed, see Docs. 44, 46, Plaintiff filed a “Second Motion in
Response to Opposition of Federal Express Motion to Dismiss” (Doc. 47). Defendant
thereafter moved to strike Plaintiff’s motion as on improper sur-reply. Doc. 48).
II. Motion for Alternative Service
Plaintiff’s Motion for Alternative Service asks the Court to allow her to serve
Mr. Harris by registered mail and a posting on his door because attempts to serve him by
certified mail and in-person by a process server have been unsuccessful. See Doc. 45. The
Court will deny the motion because joining Mr. Harris as a party would deprive the Court
of jurisdiction.2 3
2 Because Mr. Harris has not been properly served, he is not officially a party to this suit.
See Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999)
(“[O]ne becomes a party officially, and is required to take action in that capacity, only upon
service of a summons or other authority-asserting measure . . . .” (citations omitted)).
3 Under Federal Rule of Civil Procedure 4(e), an individual may be served in a judicial
district of the United States by following the laws of the state where the district court is
located, delivering a copy of the summons and complaint to the individual, leaving a copy
of each at the individual’s residence with someone of suitable age and discretion who
resides there, or delivering a copy of each to an authorized agent. Under Arizona law, “if a
party can show that service via the traditional means is impracticable, the court may—on
motion and without notice to the person to be served—order that service be accomplished
in another manner.” Ariz. R. Civ. P. 4.1(k)(1). The Court assumes, without deciding, that
service via traditional means on Mr. Harris would be impractical in this case and Plaintiff
would, under different circumstances, be entitled to an order that she may serve Mr. Harris
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A. Diversity of Citizenship
Federal courts are courts of limited jurisdiction. A federal basis, via either diversity
of citizenship or federal question, is required for a federal court to adjudicate a case. See
Newtok Vill. v. Patrick, 21 F. 4th 608, 615 (9th Cir. 2021). Here, Plaintiff alleges the basis
for federal jurisdiction is diversity of citizenship, and she brings no claims under federal
law. See generally Doc. 38. To establish diversity jurisdiction under 28 U.S.C. § 1332(a),
the amount in controversy must be greater than $75,000 and there must be complete
diversity of citizenship. In other words, the plaintiff cannot be a citizen of the same state
as any defendant. Diversity of citizenship is determined at the time of the commencement
of the suit. Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 574 (2004) (“[w]here
there is no change of party, a jurisdiction depending on the condition of the party is
governed by that condition, as it was at the commencement of the suit.” (alteration in
original) (quoting Conolly v. Taylor, 27 U.S. 556, 565 (1829)).
Before her TAC, Plaintiff consistently stated she is a citizen of Arizona. See
Docs. 1-3, 19. The events giving rise to this action occurred while Plaintiff was living in
Arizona, and she remained in Arizona through 2025. Accordingly, despite her recent move
to Florida, the facts indicate that at the time she filed her original Complaint, Plaintiff’s
permanent residence, or domicile, was in Arizona. Plaintiff also alleges Mr. Harris is a
citizen of Arizona, and because of his employment and residence in Tucson, Arizona, the
Court finds this likely. Accordingly, for jurisdictional purposes, Plaintiff and Mr. Harris
are both citizens or Arizona, and joining Mr. Harris as a Defendant would destroy diversity.
B. Joinder
Under 28 U.S.C. § 1447(e), “[i]f after removal the plaintiff seeks to join additional
defendants whose joinder would destroy subject matter jurisdiction, the court may deny
joinder.” “[T]he decision regarding joinder of a diversity destroying-defendant is left to the
discretion of the district court . . . .” Newcombe v. Adolf Coors Co., 157 F.3d 686, 691
(9th Cir. 1998). Courts in this District typically consider six factors when determining
in another manner. But because of the jurisdictional issues in this case, the Court will
analyze the Motion for Alternative Service as a request to join Mr. Harris as a party.
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whether to allow joinder:
(1) whether the person sought to be joined is a necessary party under Rule
19(a); (2) the plaintiff’s motive for seeking joinder and whether plaintiff is
seeking to add a defendant solely to destroy diversity of citizenship; (3) the
delay in seeking to add the new defendant; (4) whether, if joinder is denied,
the statute of limitations would bar an action against the new defendant in
state court; (5) the apparent validity of the claim; and (6) any prejudice to the
plaintiff if the amendment is denied.
Ansley v. Metro. Life Ins. Co., 215 F.R.D. 575, 579–80 (D. Ariz. May 12, 2003) (internal
citations omitted); see also Agin v. Thor Motor Coach Inc., No. 2:22-CV-1713, 2023 WL
12140196, at *3 (D. Ariz. May 19, 2023). Here, the weight of these factors disfavors
joinder.
First, Mr. Harris is not a necessary party under Federal Rule of Civil Procedure
19(a)4 because the Court can accord complete relief among the existing parties. If
Mr. Harris was acting within the course and scope of his employment with Federal Express,
Federal Express would be vicariously liable for his conduct. See A.R.S. § 12-2506(D)(2);
see also Arizona Tort Law Handbook § 21.10 (“An employer may be held vicariously
liable under the doctrine of respondeat superior for the negligent acts of its employee acting
within the course and scope of employment.” (citing Baker ex rel. Hall Brake Supply, Inc.
v. Stewart Title & Tr., Inc., 197 Ariz. 535, 540 (Ct. App. 2000); Restatement (Third) of
Agency § 7.07(1) (A.L.I. 2006)). Federal Express has not indicated it will argue Mr. Harris
was not acting within the course and scope of his employment when the accident occurred.
4 Under Rule 19(a),
A person who is subject to service of process and whose joinder will not
deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord complete relief
among existing parties; or
(B) that person claims an interest relating to the subject of the action
and is so situated that disposing of the action in the person’s absence
may: (i) as a practical matter impair or impede the person’s ability
to protect the interest; or
(ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations because of the interest.
Here, Mr. Harris has not claimed an interest in this action, and failing to join Mr.
Harris as a party will not impede his interests or risk inconsistent obligations for any
party.
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Accordingly, moving forward without Mr. Harris will not prevent Plaintiff from getting
complete relief.
Second, while there is no evidence that Plaintiff is attempting to join Mr. Harris to
deprive the Court of jurisdiction and there was no undue delay in seeking to add Mr. Harris
as a Defendant, Plaintiff first named Mr. Harris as a Defendant in this case after the statute
of limitations on her claim had expired. See A.R.S. § 12-542(1), (3) (two-year statute of
limitations for claims arising from injuries to person or property). Plaintiff filed her FAC
(the first complaint to name Mr. Harris as a Defendant) on February 14, 2025— over three
years since July 2022, when Plaintiff alleges the accident at the root of this case occurred.
See Docs. 16; 33 at 4. Where an amended complaint seeks to add a new defendant, both
the Federal and Arizona Rules of Civil Procedure permit relation back to the original
complaint only when (1) the claim arises out of the same incident alleged in the original
complaint, (2) the party to be added has notice, and (3) the party “knew or should have
known that, but for a mistake concerning the identity of the proper party, the action would
have been brought against the party.” Fed. R. C. Pro. 15(c)(1); Ariz. R. Civ. P. 15(c). Here,
there is no evidence that Mr. Harris “knew or should have known” that he should be a party
to this case when the first Complaint was filed because he was acting in the course and
scope of his employment as a Federal Express employee, and Federal Express was a proper
party to this suit. Further, there was no mistake as to Mr. Harris’s identity because the
police report from the accident identified Mr. Harris. See Doc. 9-1. Accordingly, relation
back does not apply, and any claims against Mr. Harris would be barred by the statute of
limitations even were the Court to allow alternative service.
For the reasons above, Plaintiff will not be prejudiced by the Court’s denial of her
attempt to join Mr. Harris as a Defendant in this case. Accordingly, the Court will exercise
its discretion under 28 U.S.C. § 1447(e) and deny Plaintiff’s Motion for Alternative Service
to allow the Court to retain jurisdiction over this case.
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III. Motion to Dismiss
Defendant’s Motion to Dismiss argues for the first time5 that Plaintiff’s claims are
barred by Arizona’s statute of limitations on claims for personal injury and damage to
personal property. Doc. 42. Defendant argues the accident occurred on July 25, 2022, and
Plaintiff initiated this action on July 26, 2024—one day after the two-year statute of
limitations had expired. See Doc. 42 at 2. In response, Plaintiff argues “the doctrines of
equitable tolling and equitable estoppel apply and preclude dismissal at this stage” because
Defendant’s representatives made “ongoing assurances that the claim would be resolved
without litigation.” Doc. 44 at 1, 2. Defendant replies that because Plaintiff’s TAC contains
no allegations that support equitable estoppel or equitable tolling, this argument fails. See
Doc. 42 at 3–4.
Under A.R.S. § 12-542, there is a two-year statute of limitations for “injuries done
to the person of another” and “trespass for injury done to the estate or the property of
another.” § 12-542(1), (3). The parties agree Plaintiff filed this action one day after the
statute of limitations had tolled. See Doc. 42 at 5; Doc. 44 at 2. Accordingly, Plaintiff’s
claim is untimely. However, “[u]nder equitable tolling, plaintiffs may sue after the statutory
time period for filing a complaint has expired if they have been prevented from filing in a
timely manner due to sufficiently inequitable circumstances.” McCloud v. State, Ariz.
Dep’t of Pub. Safety, 217 Ariz. 82, 87, 170 P.3d 691, 697 (Ct. App. 2007). Equitable
estoppel provides an exception to the statute of limitations where one party induces another
party to forebear filing suit. See State Farm Mut. Auto. Ins. Co. v. Frank, 257 Ariz. 255,
547 P.3d 374 (Ct. App. 2024).6
5 Counsel for Defendant also represented previously-dismissed Defendant FedEx
Corporation. Between Defendant Federal Express and FedEx Corporation, four motions to
dismiss have previously been filed in this case. See Docs. 6, 17, 18, & 22. This is the first
time any motion to dismiss has made a statute of limitations argument.
6 Though Plaintiff alleges both equitable estoppel and equitable tolling apply, her
arguments primarily support equitable estoppel. See Estate of Amaro v. City of Oakland,
653 F.3d 808, 814 (9th Cir. 2011) (“This court has held that, although the doctrines of
equitable tolling and equitable estoppel are often confused, the better reasoning states that
equitable tolling applies when the plaintiff is unaware of his cause of action, while
equitable estoppel applies when a plaintiff who knows of his cause of action reasonably
relies on the defendant’s statements or conduct in failing to bring suit.” (internal quotation
omitted)).
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On a motion to dismiss, courts generally only consider facts alleged on the face of
the complaint. United States v. Ritchie, 342 F.3d 903 (9th Cir. 2003). Defendant is correct
that Plaintiff’s TAC does not allege facts to support equitable tolling or equitable estoppel.
See Doc. 38. However, Plaintiff did allege facts that could plausibly support at least
equitable estoppel in prior filings. See Doc. 19 (SAC alleging communication with
Broadspire for two years); Doc. 9 (response to a motion to dismiss attaching copies of
communications with Broadspire to support argument that Plaintiff had attempted to
negotiate with Defendant’s representatives). Ordinarily if the court grants a motion to
dismiss, the court grants leave to amend unless the plaintiff will not be able to prove any
facts to support her claim and entitle her to relief. See Saul v. United States, 928 F.2d 829,
843 (9th Cir. 1991). Given Plaintiff’s prior factual allegations, if the Court were to grant
the Motion to Dismiss, it would grant leave to amend. Plaintiff’s pro se litigant status
further supports granting leave to amend. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.
2010) (pleadings drafted by pro se litigants “must be held to less stringent standards than
formal pleadings drafted by lawyers”); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)
(en banc) (a pro se litigant must be given leave to amend his complaint if it appears at all
possible that the plaintiff can correct the deficiencies in the complaint).
Plaintiff has filed four complaints in this case. It is not an efficient use of judicial
resources to dismiss the TAC only for Plaintiff to file another complaint, and Defendant to
file another motion to dismiss. See Government Emp. Ins. Co. v. Dizol, 133 F.3d 1220,
1226–27 (9th Cir. 1998) (recognizing the importance of judicial economy). Plaintiff has
consistently asserted that she attempted to resolve her claims with Federal Express
representatives before filing suit, and those representatives delayed the progress of
resolving her claims. At this juncture, the Court will take Plaintiff at her word. See Hebbe,
627 F.3d at 342 (courts must afford pro se petitioners the benefit of the doubt). The Motion
to Dismiss is denied.7
7 The Court did not consider Plaintiff’s “Second Motion in Response to Opposition of
Federal Express Motion to Dismiss” (Doc. 47) in ruling on the Motion to Dismiss.
Plaintiff’s “Second Motion” operates as a sur-reply. “[S]urreplies . . . are not authorized by
[Federal Rule of Civil Procedure] 7, any other Federal Rule of Civil Procedure, or this
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Plaintiff may be able to prove facts that overcome the statute of limitations, and the
Court’s resolution of whether Plaintiff’s claims are barred will likely involve a fact-
intensive inquiry. Accordingly, such an issue is better suited for a motion for summary
judgment or resolution at trial. See Cervantes v. City of San Diego, 5 F.3d 1273, 1276
(9th Cir. 1993) (questions of equitable tolling are “not generally amenable to resolution on
a Rule 12(b)(6) motion”). The Court will order Defendant to answer the TAC. The Court
will also grant Defendant leave to file a motion for summary judgement limited to the
statute of limitations issue within 14 days of answering Plaintiff’s TAC. Provided
Defendant follows these guidelines, it will maintain the right to file a successive motion
for summary judgement later in this case. See Hoffman v. Tonnemacher, 593 F.3d 908, 911
(9th Cir. 2010) (district courts have discretion to entertain successive motions for summary
judgment).
IV. ORDER
Accordingly,
IT IS ORDERED denying Plaintiff’s Motion for Alternative Service (Doc. 45).
The Clerk of Court is directed to terminate Earnest Harris as a defendant on the docket
sheet;
IT IS FURTHER ORDERED denying Defendant’s Motion to Dismiss (Doc. 42);
IT IS FURTHER ORDERED granting Defendant’s Motion to Strike (Doc. 48);
///
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District’s Local Rules, absent prior leave of court.” Lee v. City of Kingman, 124 F. Supp.
3d 985, 986 n.1 (D. Ariz. 2015). The Court will grant Defendant’s Motion to Strike
(Doc. 48).
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IT IS FURTHER ORDERED that Defendant shall answer Plaintiff’s Third
Amended Complaint within 14 days of the date of this Order. Defendant may file a motion
for summary judgment on the statute of limitations issue within 14 days of filing an answer.
Dated this 26th day of March, 2026.
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