Asher v. Unarco Material Handling, Inc.

• Citation: 596 F.3d 313
• Decision Date: 03 March 2010
• Docket Number: No. 09-5158.,09-5158.
• Parties: William Harris ASHER, et al., Plaintiffs, Lora Bush; Stephen Bush; James Helton; Chrystal Kae Hill; Jamey Hill; Dora Keley; Stephen King; Anna Rachelle McClure; Gary Patterson; Danny Pittman; Billy Rhodes; Clifford Robert Sage; Kimberly Dawn Deerfield Sage; Glenna Gail Shupe; Sean Lee Shupe; Cecil David Spurlock; Elaine M. Spurlock; Bennie Swift; Sarah Beth Swift; Kathy Trent; and Ricky Trent, Plaintiffs-Appellants, v. UNARCO MATERIAL HANDLING, INC., a Tennessee Corporation, Intervening Plaintiff/Defendant-Appellee, Atlas Material Handling, Inc., a California Corporation, Defendant/Third Party Plaintiff-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

596 F.3d 313 William Harris ASHER, et al., Plaintiffs,
Lora Bush; Stephen Bush; James Helton; Chrystal Kae Hill; Jamey Hill; Dora Keley; Stephen King; Anna Rachelle McClure; Gary Patterson; Danny Pittman; Billy Rhodes; Clifford Robert Sage; Kimberly Dawn Deerfield Sage; Glenna Gail Shupe; Sean Lee Shupe; Cecil David Spurlock; Elaine M. Spurlock; Bennie Swift; Sarah Beth Swift; Kathy Trent; and Ricky Trent, Plaintiffs-Appellants,
v.
UNARCO MATERIAL HANDLING, INC., a Tennessee Corporation, Intervening Plaintiff/Defendant-Appellee,
Atlas Material Handling, Inc., a California Corporation, Defendant/Third Party Plaintiff-Appellee. No. 09-5158. United States Court of Appeals, Sixth Circuit. Argued: January 15, 2010. Decided and Filed: March 3, 2010.

[596 F.3d 315]

ARGUED: Elizabeth K. Russo, Russo Appellate Firm, P.A., Miami, Florida, for Appellants. Todd S. Page, Stoll Keenon Ogden PLLC, Lexington, Kentucky, Douglas W. Langdon, Frost Brown Todd LLC, Louisville, Kentucky, for Appellees. ON BRIEF: Elizabeth K. Russo, Russo Appellate Firm, P.A., Miami, Florida, for Appellants. Todd S. Page, Stoll Keenon Ogden PLLC, Lexington, Kentucky, Douglas W. Langdon, Charles S. Cassis, Susan Simpson Wettle, Frost Brown Todd LLC, Louisville, Kentucky, for Appellees.

Before: KENNEDY, COLE, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

In this diversity suit, plaintiffs, who are past and present Wal-Mart employees and their spouses, allege injuries caused by exposure to carbon monoxide gas in the enclosed freezer section of a Wal-Mart Distribution Center during a two-week period in November and December 2005. One group of plaintiffs—the original plaintiffs—filed suit within one year of the date of last exposure to the gas, while the other group of plaintiffs—the new plaintiffs—did not. In this appeal, the new plaintiffs challenge the district court's dismissal of their claims as time-barred under the one-year statute of limitations period in Kentucky Revised Statutes Annotated § 413.140. They argue that the district court erred in holding that (1) their claims did not relate back to the filing date of the original plaintiffs' claims under Rule 15(c) of the Federal Rules of Civil Procedure, and (2) the discovery rule did not toll the limitations period. We disagree and affirm.

I.

In its appealed order granting summary judgment to defendants Unarco Material Handling, Inc. ("Unarco"), and Atlas Material Handling, Inc. ("Atlas"), the district court accurately set forth the relevant facts:

This action arises out of an alleged discharge of carbon monoxide gas in the enclosed freezer section of the Wal-Mart Distribution Center (the "Distribution Center") in London, Kentucky, between November 29 and December 12, 2005. The Plaintiffs contend that the work performed in the evenings by Atlas and Unarco caused the discharge, resulting in the Plaintiffs' injuries. More specifically, the Plaintiffs assert that Atlas and Unarco acted negligently in operating propane-powered welders inside the Distribution Center, resulting in their exposure to carbon monoxide gas. The Plaintiffs are all either past or present employees of the Distribution Center and their spouses.

The Plaintiffs initially filed their Complaint on November 21, 2006, in the

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Laurel Circuit Court alleging claims for negligence and loss of consortium.

The Defendants then removed the action to this Court [based upon diversity of citizenship jurisdiction]. Thereafter, on March 22, 2007, the Plaintiffs filed a motion for leave to file an Amended Complaint to add thirty-three plaintiffs¹ to the action. The Court granted the motion on July 17, 2007.

¹ The Plaintiffs who asserted claims for the first time in the Amended Complaint are: Stephen King, Anna McClure, George Hibbard, Ricky Trent, Kathy Trent, Jeff Wagers, Angela Wagers, Timothy Burns, Theresa Burns, Bobby Allen, Tracy Allen, Justin Gomez, James Helton, Jamey Hill, Chrystal Hill, Clifford Sage, Kimberly Sage, Billy Rhodes, Jamie Rhodes, Danny Pittman, Gary Patterson, Barry Lockard, Mildred Lockard, Bennie Swift, Sarah Swift, Cecil Spurlock, Elaine Spurlock, Sean Shupe, Glenna Shupe, Stephen Bush, Lora Bush, Dora Keley, and Humberto Alvarado.

Subsequently, in November 2007 and January 2008, eleven of the newly-added Plaintiffs filed notices and/or stipulations of voluntary dismissal of their claims. Additionally, the Court granted Atlas' and Unarco's motion for summary judgment as to Plaintiff Jamie Rhodes' claim for loss of consortium on May 16, 2008. As a result, only twenty-one Plaintiffs who first asserted their claims in the Amended Complaint currently remain in this action. They are: Stephen King, Anna McClure, Ricky Trent, Kathy Trent, James Helton, Jamey Hill, Chrystal Hill, Clifford Sage, Kimberly Sage, Billy Rhodes, Danny Pittman, Gary Patterson, Bennie Swift, Sarah Swift, David Spurlock, Elaine Spurlock, Sean Shupe, Glenna Shupe, Stephen Bush, Lora Bush, and Dora Keley (collectively, the "new Plaintiffs").

In their motions for summary judgment against the new Plaintiffs, Atlas and Unarco contend that any claims asserted for the first time in the Amended Complaint are barred by Kentucky's one year statute of limitations, KRS § 413.140. According to Atlas and Unarco, the new Plaintiffs learned of their injuries and had reason to know that any injuries could have been caused by the exposure to carbon monoxide gas in December 2005. Therefore, Atlas and Unarco contend that the statute of limitations expired on their claims in December 2006, and the claims asserted for the first time in the Amended Complaint in March 2007 are time-barred.

In response, the new Plaintiffs assert that the Amended Complaint should relate back to the original Complaint under Federal Rule of Civil Procedure 15. Further, the new Plaintiffs contend that, even if the Amended Complaint does not relate back, the time for filing any claims against Atlas and Unarco is governed by Kentucky's discovery rule because the new Plaintiffs did not discover the permanent nature and cause of their injuries until 2007.

In granting summary judgment to Unarco and Atlas, the district court held that the new plaintiffs' claims were barred by the one-year statute of limitations period in Kentucky Revised Statutes Annotated § 413.140. In so ruling, the district court rejected the new plaintiffs' contentions that (1) their claims related back to the filing date of the original complaint under Rule 15(c) of the Federal Rules of Civil Procedure, and (2) the discovery rule tolled the one-year limitations period. In addition, the district court held that the consortium claims asserted by the new

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plaintiffs' spouses were likewise untimely because they were derivative of the underlying bodily injury claims.

Unarco and Atlas reached settlements with the original plaintiffs, and the district court dismissed the original plaintiffs' claims with prejudice pursuant to the parties' January 2009 stipulations of dismissal. The new plaintiffs requested reconsideration of the district court's previous grant of summary judgment against them, relying upon a more fully developed record, including testimony given at trial, and the transfer of the case to a different district judge. The district court denied the motion for reconsideration.

The new plaintiffs timely appeal the district court's amended final judgment in favor of Unarco and Atlas under Rule 54(b) of the Federal Rules of Civil Procedure.

II.

The issue presented in this appeal is whether the new plaintiffs' claims are barred by Kentucky's one-year statute of limitations period for personal injury actions. KY.REV.STAT. ANN. § 413.140(1)(a). The new plaintiffs acknowledge that their motion seeking leave to amend the original complaint to add their claims to the lawsuit and the district court's grant of their motion occurred more than one year after the onset of their injuries from carbon monoxide exposure. However, the new plaintiffs attempt to overcome the statute of limitations hurdle in two ways: by application of (1) the relation-back provisions of Rule 15(c) of the Federal Rules of Civil Procedure and (2) Kentucky's discovery rule. We give de novo review to the district court's grant of summary judgment. Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir.2009).

A.

The new plaintiffs contend that the district court erred in holding that their claims did not relate back to the original plaintiffs' timely-filed claims under Rule 15(c) of the Federal Rules of Civil Procedure. Rule 15(c) provides, in relevant part:

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

The parties agree that the question of whether Rule 15(c) permits relation back of an amendment adding otherwise untimely plaintiffs and their claims to a timely-filed complaint is an issue of first impression

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for our circuit. Nevertheless, in urging Rule 15(c)'s applicability to their claims, the new plaintiffs concede significant ground. They acknowledge "that this Court has on several occasions made blanket statements to the effect that...