The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge
Chief Judge Curtis L. Collier
Before the Court is the motion to dismiss filed by defendants Transcor America and Martha H. Webb (Court File Nos. 26 & 27). Plaintiffs William Anderson and Betty Sue Anderson ("Plaintiffs") filed a response (Court File No. 28), and the matter is now ripe for a decision.*fn1 For the following reasons, the Court will GRANT defendants Transcor's and Webb's motion to dismiss (Court File No. 26).
I. RELEVANT FACTS AND PROCEDURAL HISTORY
According to Plaintiffs' complaint, which was filed on May 31, 2007, Plaintiffs suffered serious injuries in a car accident on June 3, 2006, when their car was hit by defendant Black, who was driving a truck for his employer, defendant Bovis (Court File No. 1).*fn2 Bovis filed an answer denying liability (Court File No. 4). On August 16, 2007, Black filed an answer also denying liability (Court File No. 6). As his second affirmative defense, Black alleged comparative fault, but did not say who was at fault. In his sixth affirmative defense, Black averred Plaintiffs violated a Tennessee statute and "the driver of a bus owned and operated by Transcor America violated this statute."
Plaintiffs interpreted that statement as alleging negligence by defendant Transcor and its driver, who they discovered to be defendant Webb (Court File No. 19). On November 9, 2007, Plaintiffs filed a motion to amend their complaint to add Transcor and Webb as defendants (Court File Nos. 18 & 19). The magistrate judge assigned to the case set a hearing on the motion to amend for November 30, 2007 (Court File No. 20). On that date, there was no hearing, and instead Plaintiffs and defendants Bovis and Black filed a joint motion to amend the pleading to add Transcor and Webb as defendants (Court File No. 21). The magistrate judge approved the joint motion on December 4, 2007 (Court File No. 22).
Plaintiffs served Webb and Transcor on December 31, 2007 (Court File Nos. 24 & 25).*fn3 Those defendants filed the instant motion to dismiss.
When reviewing a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff, Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998), accept the complaint's factual allegations as true, Broyde v. Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir. 1994), and determine whether plaintiff has pleaded "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (May 21, 2007). In deciding a motion to dismiss, the question is not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support his claims. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002). At the same time, bare assertions of legal conclusions are insufficient, and the "complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). Unsupported allegations and legal conclusions "masquerading as factual conclusions" are not sufficient. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).
Tennessee has a one-year statute of limitations for personal tort injuries. Tenn. Code Ann. § 28-3-104. Plaintiffs' complaint was filed a few days before that one-year deadline. By the time Black filed an answer asserting comparative fault by Transcor and Webb,*fn4 the statute of limitations had run against Transcor and Webb. To avoid the statute of limitations, Plaintiffs added Transcor and Webb pursuant to Tenn. Code Ann. § 20-1-119(a), which allows a plaintiff 90 days from the date a defendant asserts a third party's comparative fault to filed an amended complaint and serve the new defendants.*fn5 Transcor and Webb move to dismiss all claims against them on the grounds Plaintiffs did not comply with the 90-day requirement of § 20-1-119(a). Their motion is meritorious because neither the amended complaint nor service of process were completed within the 90-day period.
Black filed his answer on August 16, 2007. Eighty-five days later, on November 9, 2007, Plaintiffs filed their motion to amend the complaint to add Transcor and Webb. That motion was not approved until December 4, 2007. Plaintiffs filed their amended complaint the same day. They served Defendants on December 31, 2007, which is 137 days after Black filed his answer.
A recent change in the Tennessee Rules of Civil Procedure does not affect the outcome of this motion. Until July 1, 2007, both Tenn. R. Civ. P. 15.01 and Fed. R. Civ. P. 15(a)(2) required a party to obtain leave of the court to amend pleadings if a responsive pleading was already filed. The federal rule remains the same, but now Tenn. R. Civ. P. 15.01 expressly allows amendments under § 20-1-119 without leave of the court.*fn6 Therefore, if this case was in a state court in Tennessee, Plaintiffs would not have needed leave of the court to amend their complaint, and it would have been filed within the 90-day period. But because this case is in federal court, Plaintiffs needed leave of court, and the amended complaint was not approved within the 90-day period.*fn7
However, even if the amended complaint had been approved within the 90-day period, Plaintiffs would still be barred from suing Transcor and Webb because Plaintiffs were also required to "cause process to be issued" within that 90 days. § 20-1-119; accord Jones v. Prof'l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 570 (Tenn. 2006). Defendants were not served until 137 days after Black filed his answer. Service occurred 27 days after the amended complaint was approved. If the amended complaint had been approved the day ...