Opinion
Civil Actions Nos. 01-2025-CM, 02-2143-CM
September 30, 2002
MEMORANDUM AND ORDER
Pending before the court are defendants Willamette Industries, Inc. and Georgia-Pacific Corporation's Motions to Dismiss (Docs. 6 and 8), filed in Case No. 01-2025, and defendants Willamette Industries, Inc. and Georgia-Pacific Corporation's Motions to Dismiss (Docs. 31 and 33), filed in Case No. 02-2143. As set forth below, defendants' motions filed in Case No. 01-2025 are granted. However, defendants' motions filed in Case No. 02-2143 are denied.
Defendants' motions to dismiss (Docs. 31 and 33) are captioned with the case numbers from both Case No. 02-2143 and Case No. 01-2025. For ease of reference, the court will reference the May 23, 2002 motions as filed only in Case No. 02-2143.
Background
As set out in prior orders of the court, plaintiff originally filed this diversity products liability suit, numbered Case No. 01-2025, in this district court on January 17, 2001. Plaintiff's products liability claims arose from an eye injury plaintiff sustained while installing plumbing in a new home located in Johnson County, Kansas. Plaintiff sustained his injury while running copper plumbing between floor joists in the home. Plaintiff alleged that defendants Georgia-Pacific and Willamette Industries were responsible for the manufacture and distribution of the floor joists that caused him injury. Plaintiff's complaint raised claims sounding in negligence and strict liability.
Plaintiff's complaint raised the following claims: (1) Count 1 — Negligently Supplying Dangerous instrumentality; (2) Strict Liability — Defective Product; and (3) Strict Liability — Failure to Warn.
On May 14, 2001, defendants moved to dismiss plaintiff's case, asserting plaintiff failed to timely file his complaint under the applicable two-year Kansas state statute of limitations. Rather than file a response to defendants' motion, plaintiff opted to file a Voluntary Dismissal Without Prejudice Pursuant to Fed.R.Civ.P. 41(a)(1)(i), thereby voluntarily dismissing his claims.
Subsequently, plaintiff filed a related complaint in the United States District Court for the District of Minnesota. In that complaint, plaintiff named the same defendants he named in Case No. 01-2025 — defendants Georgia-Pacific Corporation and Willamette Industries, Inc. — and asserted three identical claims against these defendants. In addition, in the Minnesota action, plaintiff raised two related state law claims stemming from the events giving rise to his original negligence and strict liability claims. Defendants answered the complaint and filed cross-claims against each other.
In the Minnesota action, plaintiff raised as Counts 4 and 5, claims of breach of express or implied warranty and fraudulent misrepresentation.
Defendants then moved the Minnesota court to dismiss plaintiff's claims as untimely under a statute of limitations theory or, alternatively, moved to transfer venue in the case to the District of Kansas. Following briefing on defendants' Motions to Dismiss or in the Alternative to Transfer Venue, the District of Minnesota denied defendants' motion to dismiss and granted their motion to transfer venue. In denying their motion to dismiss, the Minnesota court found that Minnesota's five-year state statute of limitations applied to plaintiff's product liability claims, rather than Kansas's two-year statute of limitations. Accordingly, the Minnesota court found plaintiff's product liability claims were timely filed in that court. However, applying 28 U.S.C. § 1404(a), the Minnesota court found venue was proper in the District of Kansas, and therefore transferred venue to the District of Kansas. The Minnesota case has now been docketed in this court as Case No. 02-2143. Recognizing the "circuitous route" plaintiff's case took, the Minnesota court noted that it viewed plaintiff's actions as "a flagrant example of forum shopping."
Following the transfer of venue to this court, defendants moved the court to reinstate Case No. 01-2025 and to consolidate the prior case with the recently transferred Case No. 02-2143. On May 13, 2002, the court entered an order granting defendants' motion. Most recently, the court denied plaintiff's motion to reconsider its May 13 order.
Accordingly, both Case No. 01-2025 and 02-2143 remain pending before this court. Therefore, defendants' May 14, 2001 motions to dismiss asserting plaintiff failed to timely file his complaint under the applicable two-year Kansas state statute of limitations remain pending. In addition, on May 23, 2002, defendants filed a motion to dismiss seeking to dismiss Case No. 02-2143 as duplicative of the reinstated Case No. 01-2025. The court now addresses the merits of these pending motions.
Motions to Dismiss
The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, Conley v. Gibson , 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive. Neitzke v. Williams , 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Swanson v. Bixler , 750 F.2d 810, 813 (10th Cir. 1984). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974), overruled on other grounds , Davis v. Scherer , 468 U.S. 183 (1984).
Case No. 01-2025 — Motions to Dismiss
Defendants assert that plaintiff's claims raised in Case No. 01-2025 are barred by the two-year statute of limitations set out in the Kansas state statutes. Specifically, defendants contend plaintiff's action did not commence within the requisite two years due to plaintiff's failure to obtain service of process within ninety days after the filing of his complaint. The court agrees.
A federal court sitting in diversity must apply the substantive law of the forum state. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); McCurdy Group v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 827 (10th Cir. 2001). Accordingly, because plaintiff filed Case No. 01-2025 in this court sitting in the State of Kansas, Kansas is the applicable forum state. See Black's Law Dictionary 667 (7th ed. 1999) (defining "forum state" as the "state in which a suit is filed"). Relevant to the issues raised in the pending motions to dismiss, a court sitting in diversity must apply the law of the forum state with respect to the applicable statute of limitations, including the date on which an action is deemed to "commence" for limitations purposes. See Walker v. Armco Steel Corp., 446 U.S. 740, 752-53 (1980) (noting "state service requirements, which are an integral part of the state statute of limitations, should control in an action based on state law, which is filed in federal court under diversity jurisdiction"); Wandrey v. Serv. Bus. Forms, Inc., 762 F. Supp. 299, 304-05 (D.Kan. 1991) (noting state limitations law, rather than federal civil procedure rule, provided time for service of process in diversity action).
Applicable Limitations Period
Plaintiff's claims in Case No. 01-2025 sound in negligence and strict liability. Kan. Stat. Ann. § 60-513 provides that "[a]n action to injury to the rights of another, not arising on contract, and not herein enumerated," "shall be brought within two years." Kan. Stat. Ann. § 60-513(4). Generally, the two-year limitations period begins to accrue when "the act giving rise to the cause of action first causes substantial injury." Id. § 60-513(b). Kansas courts have determined that § 60-513's two-year limitations period applies to claims of negligence and claims of strict liability. Friends Univ. v. W.R. Grace Co., 227 Kan. 559, 561-62, 608 P.2d 936, 939 (1980) (negligence, strict liability); Belger Cartage Serv., Inc. v. Holland Constr. Cos., 224 Kan. 320, 332, 582 P.2d 1111, 1121 (1978) (negligence). Accordingly, plaintiff's claims are governed by Kansas's two-year statute of limitations.
In order to meet § 60-513's two-year limitations period, the action must commence within the two year period. See Kan. Stat. Ann. §§ 60-513, 60-203. Kan. Stat. Ann. § 60-203 governs when an action is actually commenced, as opposed to when a lawsuit is filed. Section 60-203 provides:
"A civil action is commenced at the time of: (1) Filing a Petition with the clerk of the court, if service of process is obtained . . . within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process . . . if service of process . . . is not made within the time specified by provision of (1).
Kan. Stat. Ann. § 60-203(a) (emphasis added). Pursuant to Kansas law, an action is "commenced" on the date the petition is filed only if the defendant is served with process within 90 days of the date the petition is filed. Id. Where defendant is not served within 90 days of the date the petition is filed, the action is "commenced" on the date the defendant is actually served with process. Id.; see also Davila v. Vanderberg, 4 Kan. App. 2d 586, 589, 608 P.2d 1388, 1391 (1980) (noting where service of process has not been obtained, "the case has not been commenced for the purpose of fixing the time of its commencement" within the meaning of § 60-203).
Here, plaintiff filed his complaint in Case No. 01-2025 on January 17, 2001. Plaintiff alleges in that complaint that he incurred his injury on January 21, 1999. Accordingly, the two-year period applicable to plaintiff's claims in Case No. 01-2025 arguably began to accrue on January 21, 1999. See Kan. Stat. Ann. § 60-513(b) (noting, in part, that two-year limitations period begins to accrue when "the act giving rise to the cause of action first causes substantial injury"). Consequently, plaintiff was required to "commence" his claims on or before January 21, 2001, the end of the two-year limitations period.
However, the record reflects that plaintiff did not "commence" his action within the two-year limitations period because he failed to obtain service on either defendant within the requisite 90 days after the filing of his complaint. Instead, the record reflects that plaintiff obtained service upon defendants on April 24, 2001 — seven days outside the 90 day period specified in § 60-203. Accordingly, plaintiff's action "commenced," not on January 17, 2001, the date the complaint was filed, but instead on April 24, 2001, the date plaintiff obtained service on defendants. Because plaintiff's action did not commence within the two-year limitations period provided for in § 60-513, the claims raised in Case No. 01-2025 are barred by operation of the statute of limitations. See Bray v. Bayles, 228 Kan. 481, 489, 618 P.2d 807, 813 (1980) (barring claims not commencing within applicable statute of limitations).
Plaintiff's Arguments in Response
Plaintiff asserts several defenses to the application of a two-year limitations period as proposed by defendants. First, plaintiff asserts in his response that his claim is not untimely pursuant to § 60-513 because the two-year period specified in § 60-513 did not begin to accrue until November 2000, when his claims became "reasonably ascertainable." As noted, § 60-513(b) of the Kansas statutes provides that the causes of action set out in subsection (a) of that statute "shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes readily ascertainable to the injured party. . . ." Kan. Stat. Ann. § 60-513(b).
Plaintiff appears to contend that equitable tolling of the statute of limitations is appropriate in Case No. 01-2025 based on defendants' alleged representation that "the manufactured I-beams . . . [have] the same qualities and behavioral characteristics as real sawed lumber." (Pl.'s Resp. at 4-5). Plaintiff continues by noting that "[a]lthough plaintiff had ascertained he was injured, plaintiff had no way to determine whether the manufactured I-beams played any role in the cause until after a reasonable inquiry." ( Id.) Plaintiff asserts that defendants' representations "were relied upon by plaintiff in his delay of pursuing this claim." ( Id.) Therefore, plaintiff contends equitable tolling is appropriate for "that period of time before plaintiff had the opportunity to reasonably inquire into characteristics of the manufactured I-beams." ( Id.) The court is unpersuaded by this argument.
Generally, for equitable tolling to apply under Kansas law, defendants "`must have done something that amounted to an affirmative inducement to plaintiff to delay bringing the action.'" Friends Univ., 227 Kan. at 564, 608 P.2d at 941 (1980) (quoting Rex v. Warner, 183 Kan. 763, 771, 332 P.2d 572, 579 (1958)). Plaintiff's allegations do not support a finding that defendants in this case engaged in a fraudulent or intentional concealment to prevent the discovery of plaintiff's causes of action. The court finds plaintiff has failed to meet his burden to set forth facts sufficient to toll the statute of limitations. See Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119, 122 (1992) (indicating burden to prove facts sufficient to toll the statute of limitations is upon the plaintiff). Accordingly, the court declines to toll the statute of limitations applicable to plaintiff's claims in Case No. 01-2025. Moreover, the court finds that the two-year statute of limitations set out in § 60-513 began to run as of the date of plaintiff's injury on January 21, 1999, finding that January 21 is the date "the act giving rise to the cause of action first cause[d] substantial injury" to plaintiff. Kan. Stat. Ann. § 60-513(b).
Next, plaintiff asserts that if the court finds the two-year statute of limitations began to run as of the date of plaintiff's injury, "unusual circumstances" exist that are sufficient to toll the statute of limitations applicable to his claims. Specifically, plaintiff alleges that "[a]t the time of filing [of Case No. 01-2025], summons was provided to the clerk of the district court for application of the Court's seal, and return to plaintiff's counsel for service. For reasons unknown, the clerk of the district court never returned the summons to plaintiff's counsel." (Pl.'s Resp. at 6). Plaintiff then contends that tolling is appropriate because "[t]he failure of the clerk to return the summons, and the fact that service had not been effected was not apparent until after ninety (90) days after the case had been filed." ( Id.)
In support of his position, plaintiff cites Slayden v. Sixta, wherein the Kansas Supreme Court found that "[o]ur legislature did not intend that an error by a clerk of the district court when addressing a summons should deprive a litigant of the right to an adjudication of the issues on the merits." Slayden, 250 Kan. at 30-31, 825 P.2d at 125. However, the facts in Slayden justifying application of the "unique circumstances" doctrine are distinguishable from those present in Case No. 01-2025. In Slayden, the Clerk of the Court failed to properly issue a summons by placing an incorrect address on the summons. In contrast to the facts in Case No. 01-2025, the plaintiff in Slayden made diligent efforts to effect service within the applicable service deadline, but was prevented from effecting service due to the error of the clerk's office. Here, plaintiff asserts that he requested the Clerk of the Court to issue a summons at the time of filing his complaint. However, the records of the clerk's office do not reflect that, on the date of filing, the issuance of a summons was requested. Moreover, there is no record of plaintiff's efforts to effect service during the applicable 90-day period, nor does plaintiff assert that any efforts other than the initial request were made. The court finds that plaintiff has failed to meet his burden to show that the circumstances in Case No. 01-2025 justify a tolling of the limitations period under the "unique circumstances" doctrine. Accordingly, the court declines to toll the statute of limitations applicable to plaintiff's claims in Case No. 01-2025.
Finally, plaintiff asserts that "good cause" exists that allows the court "to grant a retroactive extension of time of thirty days to effect service." (Pl.'s Resp. at 3). Accordingly, plaintiff asks the court for an extension of time of thirty days within which he could effect service of process upon defendants in Case No. 01-2025. Despite plaintiff's arguments, it is clear under Kansas law that an extension of time to serve process under § 60-203 is available only when an extension is sought within the 90 days specified in the statute. Read v. Miller, 247 Kan. 557, 564, 802 P.2d 528, 532 (Kan. 1990). In Read, the Kansas Supreme Court recognized that "[b]ased on the plain, unambiguous language of K.S.A. 60-203(a), and considering existing case law rules and the lack of any legislative intent to the contrary, we hold that an extension of time under K.S.A. 60-203(a) must be sought and granted before the expiration of the 90 day period." Id. The Read court noted further that "once the 90-day period has expired, there is nothing to extend, no period to prolong." Id. Accordingly, because Kansas state law's service requirements control in this diversity action, and because plaintiff's request for an extension is made outside the applicable 90-day period, the court denies plaintiff's request for an extension of time to effect service in Case No. 01-2025. See Walker, 446 U.S. at 752-53.
C. Conclusion
Because plaintiff's case did not "commence" as set forth in § 60-203, within the two years specified in § 60-513, the court finds plaintiff's claims for negligence and strict liability were untimely filed. Consequently, plaintiff is barred from pursuing these claims in Case No. 01-2025. Defendants' motions to dismiss are granted. Plaintiff's complaint in Case No. 01-2025 is dismissed in its entirety.
Case No. 02-2143 — Motions to Dismiss A. Status of Consolidated Cases
As noted, the court granted defendants' motion to consolidate the reinstated Case No. 01-2025 with the transferred Case No. 02-2143. Specifically, the court found consolidation of plaintiff's cases was appropriate because the questions of law and fact raised in these cases were common enough to merit consolidation pursuant to Fed.R.Civ.P. 42(a). Significant to the pending motions, although Case No. 01-2025 and Case No. 02-2143 were consolidated, the two cases retained their separate identities. That is, the cases were not "merged" into one case. See Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933) (holding that "consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another"); United States v. Tippett, 975 F.2d 713, 716 (10th Cir. 1992) (noting effect of consolidation).
The court has now dismissed Case No. 01-2025, finding that upon consideration of the facts and procedural circumstances present in that separate case, the claims raised there were barred by the applicable statute of limitations. Given the separate nature of Case No. 01-2025 and Case No. 02-2143, and in particular their separate procedural histories, the court's dismissal of Case No. 01-2025 is not dispositive of the claims in Case No. 02-2143.
No Duplicative Cases Pending
In the pending motions to dismiss, defendants assert that the court should dismiss Case No. 02-2143 because it is "duplicitous" of the already pending Case No. 01-2025. (Def. Georgia Pacific's Mem. at 2). Moreover, defendants assert that dismissal of Case No. 02-2143 would further the public policy of the State of Kansas by requiring that Kansas law apply to a Kansas claim. Defendants assert that there is "no doubt" the court "has the authority to dismiss a Petition filed by a plaintiff that is duplicitous of an action that is already pending." ( Id. at 3). Whether or not the court has the authority referenced by defendants is not dispositive here. Instead, because Case No. 01-2025 has been dismissed by the court, no case "duplicative" of Case No. 02-2143 remains pending. Accordingly, the court finds defendants' motions to dismiss should be denied.
However, even if Case No. 01-2025 remained pending, the court finds that the authority cited by defendants fails to support the dismissal of Case No. 02-2143. The cases cited by defendants focus on the doctrine of federal comity "which permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district." Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982). The doctrine of comity allows the court to address issues of efficiency, convenience, and judicial economy in determining whether to decline jurisdiction over an action. See id. (citing Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183-84 (1952)). However, no case cited by defendants involved the denial of jurisdiction by a court to whom a case had been transferred pursuant to 28 U.S.C. § 1404, where the issues of convenience, efficiency, and judicial economy already have been considered by the transferring court. Accordingly, the court is unpersuaded that the authority cited by defendants demands the dismissal of Case No. 02-2143.
See Upchurch v. Piper Aircraft Corp., 736 F.2d 439 (8th Cir. 1984); United States v. Ardelt-Horn Construction Co., 316 F. Supp. 254 (D.Neb. 1970), and Cory v. Mark Twain Life Insurance Co., 604 F. Supp. 226 (E.D.Ark. 1984), also cited by defendants.
Conclusion
The court is mindful of the cautions against rewarding "forum shopping." In fact, recognizing that plaintiff's actions in dismissing Case No. 01-2025 were toward that impermissible end, the court reinstated Case No. 01-2025. However, the procedural rules available to plaintiff in the federal courts have allowed plaintiff to re-plead his claim in another venue where jurisdiction and venue were properly available, and to transfer that case, pursuant to 28 U.S.C. § 1404, back to this court, where venue was found to be more appropriate. Generally, the federal rules regarding transfer of venue are not intended to deny a plaintiff the benefit of the state law applicable to his case at the time of filing. See Ferens v. John Deere Co. , 494 U.S. 516, 524 (1990) (noting application of 28 U.S.C. § 1404 should not deprive parties of state law advantages and that the beneficial use of § 1404(a) by a plaintiff generally outweighs the possibility § 1404 provides for forum shopping).
The court takes a dim view of forum shopping. However, under the circumstances present in this matter, the court was required to weigh the policy against forum shopping with the plaintiff's right to transfer his case to this court pursuant to § 1404, to have the transferor's state law apply to his claims, and to have his case heard on the merits. It is unfortunate that plaintiff's counsel chose this circuitous route in pursuing plaintiff's claims. However, the court is not willing to penalize plaintiff for those procedural machinations. The court stresses, however, that the procedural routes followed in this case are not a generally accepted manner of practice in this federal court. The court hereby denies defendants' motions seeking to dismiss Case No. 02-2143.
V. Order
IT IS THEREFORE ORDERED that defendants Willamette Industries, Inc. and Georgia-Pacific Corporation's Motions to Dismiss (Docs. 6 and 8), filed in Case No. 01-2025, are granted. Plaintiff's complaint in Case No. 01-2025 is dismissed in its entirety. In addition, plaintiff's request for an extension of time, submitted within his "Suggestions in Opposition" (Doc. 24), is denied.
IT IS FURTHER ORDERED that defendants Willamette Industries, Inc. and Georgia-Pacific Corporation's Motions to Dismiss (Docs. 31 and 33), filed in Case No. 02-2143, are denied.
IT IS FURTHER ORDERED that the stay imposed by the court in its July 26, 2002 order is hereby lifted.
IT IS SO ORDERED. Dated this 30th day of September 2002, at Kansas City, Kansas.