Grissom v. Dayco Products, Inc., Civ. A. No. 89-2169-V.
| Decision Date | 07 February 1991 |
| Docket Number | Civ. A. No. 89-2169-V. |
| Citation | 758 F. Supp. 650 |
| Parties | Peggy V. GRISSOM, Plaintiff, v. DAYCO PRODUCTS, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
David O. Alegria, McCullough, Wareheim & La Bunker, P.A., Topeka, Kan., for plaintiff.
K. Gary Sebelius, Catherine A. Walter, Davis, Wright, Unrein, Hummer & McCallister, Topeka, Kan., for defendant.
Plaintiff Peggy V. Grissom brought this diversity of citizenship action against a number of defendants claiming that she had been illegally discharged from her job in retaliation for filing a workers' compensation claim. Defendant Dayco Products, Inc., the sole remaining defendant,1 has moved the court (Doc. 34) to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(6). Defendant contends that the claims brought against it are barred by the applicable Kansas two-year statute of limitations, K.S.A. 60-513(a)(4). Plaintiff Peggy V. Grissom has responded (Doc. 51) and opposes defendant's motion. Because the parties refer to matters outside the pleadings, we will treat defendant's motion as one for summary judgment. Fed.R.Civ.P. 12(b)(6).
On November 19, 1990, pursuant to D.Kan.Rule 206(d), the court heard oral arguments on defendant's motion. Plaintiff appeared by counsel David O. Alegria. Defendant appeared by counsel Catherine A. Walter. After hearing oral arguments of counsel, the court took the issue under advisement. Having now reviewed the material introduced into evidence at the hearing, the parties' memoranda, and the record of the case, the court is prepared to rule. For the reasons stated below, defendant's motion is denied.
A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be discharged by "showing," that is, pointing out to the district court, that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, "a party opposing ... may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id.
For the purposes of this motion the following facts are accepted as true. On September 16, 1986, plaintiff was injured at work. At the time, she was employed by Dayco Corporation at its rubber plant located at Fort Scott, Kansas. As a result of her injuries, plaintiff was eventually awarded workers' compensation benefits under K.S.A. 44-501, et seq.
On October 24, 1986, Armstrong Rubber Company purchased the Fort Scott plant from Dayco Corporation. Simultaneously, Armstrong Rubber Company formed Dayco Products, Inc., a wholly owned subsidiary, for the purposes of operating the Fort Scott plant. Thus, after October 24, 1986, plaintiff was employed by Dayco Products, Inc.
On March 6, 1987, Dayco Corporation, plaintiff's former employer, changed its name to Day International Corporation. In September, 1987, M.A. Hanna Company acquired Day International Corporation. From September, 1987, plaintiff received workers' compensation benefits from an entity designated "Dayco/M.A. Hanna Co."
On April 16, 1987, plaintiff was discharged from her job. Nearly two years later, on April 11, 1989, plaintiff's counsel notified "Dayco" that he intended to file a lawsuit for retaliatory discharge. On April 12, 1989, plaintiff's counsel spoke with an employee of "Dayco" concerning the impending lawsuit. The next day, April 13, 1989, within the applicable statute of limitations (two-years, K.S.A. 60-513(a)(4)), plaintiff's counsel filed the instant retaliatory discharge action against "Dayco," a/k/a Day International Corporation, and M.A. Hanna Company. On April 14, 1989, The Corporation Company, Inc., the registered agent for both Day International Corporation and Dayco Products, Inc., was served with process.
Thereafter, on July 17, 1989, plaintiff filed a Motion for Leave to Amend her Complaint to join Dayco Products, Inc., as a defendant. On August 7, 1989, this court sustained plaintiff's Motion for Leave to Amend (Doc. 15). Dayco Products, Inc., was served with process on August 10, 1989. Since that time, defendants Day International Corporation and M.A. Hanna Company have been dismissed from the case. Dayco Products, Inc., remains as the sole defendant in this action.
In its motion, defendant contends that plaintiff's amended complaint is barred by the applicable two-year statute of limitations, K.S.A. 60-513(a)(4). Defendant asserts that plaintiff's cause of action accrued on the date of her dismissal, April 16, 1987, but it was not given notice of the instant lawsuit until April 18, 1989, and was not served with process until August 10, 1989. This gives rise to defendant's argument that plaintiff's claims are barred by the two-year statute of limitations. Defendant also contends that, because it received no notice of this lawsuit until after the limitations period had run, plaintiff's amended complaint does not relate back to the filing of her original complaint under Fed.R.Civ.P. 15(c). Plaintiff claims that her amended complaint relates back to the filing date of her original complaint under Fed.R.Civ.P. 15(c) and is therefore timely.
Fed.R.Civ.P. 15(c) provides:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for mistake concerning the identity of the proper party, the action would have been brought against the party.
The issue here is whether the amended complaint, concededly filed outside the period of limitations, relates back to the original complaint, filed on April 13, 1989, within the limitations period. The United States Supreme Court has stated that relation back under Fed.R.Civ.P. 15(c) is dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against him; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986). Generally, the linchpin of this type of case is notice, and notice within the limitations period. Id. at 31, 106 S.Ct. at 2385.
We conclude from a review of the record that plaintiff has failed to satisfy all four factors. Defendant was not given "notice of the institution of the action" within the period of limitations. See Fed. R.Civ.P. 15(c). We are of the opinion that plaintiff's counsel's certified letter and telephone discussion with "Dayco," prior to the expiration of the limitations period, warning "Dayco"...
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Butler v. Woodbury County, 95-875
...Cir.1980) (service of complaint on agent of party sought to be brought in satisfied notice requirement). But see Grissom v. Dayco Prods., Inc., 758 F.Supp. 650, 653 (D.Kan.1991) (service of complaint on authorized agent of party sought to be brought in failed to satisfy notice requirement).......