Benne v. International Business Machines

• Decision Date: 18 October 1994
• Docket Number: No. 94-1181-PFK.,94-1181-PFK.
• Citation: 887 F. Supp. 1395
• Parties: Catherine Ann BENNE and John H. Benne, Plaintiffs, v. INTERNATIONAL BUSINESS MACHINES, and Gateway 2000, Inc., Defendants.
• Court: U.S. District Court — District of Kansas

887 F. Supp. 1395

Catherine Ann BENNE and John H. Benne, Plaintiffs, v. INTERNATIONAL BUSINESS MACHINES, and Gateway 2000, Inc., Defendants.

No. 94-1181-PFK.

United States District Court, D. Kansas.

October 18, 1994.

COPYRIGHT MATERIAL OMITTED

Albert L. Kamas, Render, Kamas & Hammond, Wichita, KS, Steven J. Phillips, Danielle Goodman and Moshe Maimon, Levy, Phillips & Konigsberg, New York City, for plaintiff.

Theresa M. Connors, James F. Duncan and Katherine J. Rogers, Watson & Marshall, L.C., Kansas City, MO, and Joseph A. D'Avanzo and Michael A. Cerussi, Jr., Cerussi & Spring, White Plains, NY, for defendant IBM.

Trisha A. Thelan and Jeff P. DeGraffenreid, Foulston & Siefkin, Wichita, KS, for defendant Gateway.

MEMORANDUM AND ORDER

PATRICK F. KELLY, Chief Judge.

The present action was filed by plaintiffs Catherine and John Benne on December 18, 1992. It was initially filed in the United States District Court for the Eastern District of New York. The action was subsequently transferred to this court pursuant to 28 U.S.C. § 1404(a). Both defendants in the present action, International Business Machines and Gateway 2000, Inc., have filed motions for summary judgment contending that the Bennes' action is time barred as a result of the operation of both Kansas law and the law of New York. K.S.A. 60-513; N.Y.Civ.Prac.L. & R. 214.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir.1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The plaintiffs, while making no attempt in their written response brief to argue that the present action would not be barred by New York limitations law, nonetheless contended at oral argument on the present motions that the action is timely under the law of New York.¹ The court cannot agree. The three-year New York statute of limitations "begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury." Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 300, 200 N.E. 824, 104 A.L.R. 450 (1936). This rule has been held to apply specifically to, and thereby bar, repetitive stress injury cases such as the present action. See In re New York County Data Entry Worker Product Liability Litigation, Index No's 499000/93, 23720/92 (N.Y.Sup.Ct. Apr. 16, 1994); Wallen v. American Telephone & Telegraph, Index No. 12336/91 (N.Y.Sup.Ct. Sept. 17, 1992), aff'd, 195 A.D.2d 417, 601 N.Y.S.2d 796 (1993).

The Bennes argue that Kansas limitations law applies because the defendants waived any protection under the New York law by transferring the case to Kansas pursuant to § 1404(a), and under New York's choice of law rules, a New York court would in any event apply the Kansas statute of limitations as the law of the jurisdiction where the action arose. These arguments are not supported by the law or by the circumstances of the present case.

When an action is transferred pursuant to § 1404(a), the transferee court must apply the statute of limitations of the transferor. Ferens v. John Deere Co., 494 U.S. 516, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990); Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). Benne supports her claim of waiver or estoppel by citing decisions rendered prior to Van Dusen and Ferens. See, e.g., Greve v. Gibraltar Enterprises, Inc., 85 F.Supp. 410, 414 (D.N.M. 1949). The continued validity of such decisions in the wake of Van Dusen and Ferens is dubious.

More importantly, and contrary to the argument advanced by the plaintiffs, there is no evidence in the present record to support the asserted waiver or estoppel. There is no evidence that the defendants intentionally waived their right under Ferens to the application of New York limitations law. While there are references in the pleadings of the defendants to the general applicability of Kansas general substantive law, none of these references include any direct statement that Kansas limitations law should be substituted for New York law, contrary to the general rule in such transfers. The record is devoid of any suggestion that the defendants knowingly waived the transferor's limitations law. Nor is there any evidence that such a representation, relating specifically to the statute of limitations, played any decisive role in the decision to transfer the case.

The plaintiffs' argument that a New York court would nonetheless apply Kansas limitations law pursuant to New York choice of law rules is equally incorrect. New York, like many states, including Kansas, possesses a "borrowing statute." N.Y.Civ.Prac.L. & R. 202 provides:

An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

Because the Bennes are not residents of New York, the effect of this provision is to require the present action to comply with the limitations requirements of both New York and Kansas. The action is barred in New York if it would be considered untimely under either New York or Kansas law. As noted earlier, the action would be considered untimely under the law of New York.

The court also finds that in any event the action would also be barred under the law of Kansas. In their brief, the Bennes rely in particular upon the decision of the court of appeals in Gilger v. Lee Constr. Inc., 14 Kan.App.2d 679, 798 P.2d 495 (1990), aff'd in part, rev'd in part, 249 Kan. 307, 322, 820 P.2d 390 (1991). In Gilger, a family sued the designer and installer of their home's heating system, as well as their natural gas supplier, in 1987 for long-term exposure to carbon monoxide. The family had experienced substantial health problems beginning in 1982. They contended, however, that they did not discover these problems were caused by their heating system until 1985, within two years of the date they filed suit.

The court of appeals reversed the trial court's grant of summary judgment on the issue of the statute of limitations, stating that the statute could not begin to run "until the plaintiff has discovered that a substantial injury has been sustained and has discovered that the cause of that injury is the negligence of the defendant." 14 Kan.App.2d at 686, 798 P.2d 495.

On appeal, the supreme court affirmed. The court distinguished decisions relied upon by the defendants, such as Friends University v. W.R. Grace & Co, 227 Kan. 559, 608 P.2d 936 (1980), and Roe v. Diefendorf, 236 Kan. 218, 689 P.2d 855 (1984), where the statute was deemed to have run against the plaintiffs. In those cases, the Gilger court concluded, the plaintiffs may not have been fully aware of the extent of their injuries, but "the parties whose negligence caused the injuries were immediately known and the injuries were ascertainable within a short period of time," and thus the statute had commenced to run. 249 Kan. at 322, 820 P.2d 390. In contrast, the court stated, in the case before it there were disputed facts "as to when the appellants realized their health problems were associated with the alleged improperly ventilated furnace." Id. In reaching this conclusion, the court cited previous decisions, in which the statute was deemed not to have commenced to run, where the plaintiff, while aware of the fact of injury, had yet to discover the connection between the injury and the alleged negligence of the defendant. 249 Kan. at 319-321, 820 P.2d 390 (quoting, and adding emphasis to, Cleveland v. Wong, 237...