Laraia v. Kimberly-Clark Corp., Case No. 18-C-1936

• Decision Date: 22 February 2019
• Docket Number: Case No. 18-C-1936
• Parties: STEVEN LARAIA, Plaintiff, DRIVERS MANAGEMENT, LLC, Involuntary Plaintiff, v. KIMBERLY-CLARK CORPORATION, JOHN DOE DEFENDANTS 1-9, and JOHN DOE INSURANCE COMPANIES 1-10, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

STEVEN LARAIA, Plaintiff,DRIVERS MANAGEMENT, LLC, Involuntary Plaintiff, v. KIMBERLY-CLARK CORPORATION, JOHN DOE DEFENDANTS 1-9,and JOHN DOE INSURANCE COMPANIES 1-10, Defendants.

Case No. 18-C-1936

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

February 22, 2019

DECISION AND ORDER GRANTING MOTION TO DISMISS

This is a diversity personal injury action that Defendant Kimberly-Clark Corporation (Kimberly-Clark) removed from Winnebago County Circuit Court. The court has jurisdiction under 28 U.S.C. § 1332(a). Plaintiff Steven Laraia claims that he was injured while working for Drivers Management, LLC due to Kimberly-Clark's negligence. Before the court is Kimberly-Clark's motion to dismiss Laraia's complaint as time-barred. For the reasons stated below, Kimberly-Clark's motion will be granted and this case will be dismissed.

LEGAL STANDARD

"While a statute of limitations defense is not normally part of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), when the allegations of the complaint reveal that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim." Logan v. Wilkins, 644 F.3d 577, 582 (7th Cir. 2011); Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005). When faced with a Rule 12(b)(6) motion to dismiss a complaint as time-barred, "the question is only whether there is any set of facts that if proven would establish a defense to the statute of limitations." Clark v. City of Braidwood, 318 F.3d 764, 768 (7th Cir. 2003). Where "facts pleaded in the complaint establish that a claim is time barred," the claim must be dismissed. Logan, 644 F.3d at 582. When reviewing a Rule 12(b)(6) motion to dismiss, the court accepts all well-pleaded facts as true and views them in a light most favorable to the plaintiff. Doe v. Vill. of Arlington Heights, 782 F.3d 911, 914-15 (7th Cir. 2015).

ALLEGATIONS OF THE COMPLAINT

On or about November 19, 2015, Laraia, who was employed at Drivers Management, LLC, a commercial transportation and delivery company, drove a semi-trailer to Kimberly-Clark's location in Neenah, Wisconsin. After Laraia arrived, Kimberly-Clark's employees and agents loaded, prepared, closed, and sealed the trailer Laraia was scheduled to deliver. Laraia then drove to Hodgkins, Illinois to deliver the shipment. While in Illinois, Laraia opened the trailer's rear doors. When the doors opened, multiple large cartons of freight fell onto Laraia, causing him to sustain severe and permanent injuries.

Laraia filed this action on November 6, 2018, pleading two causes of action. First, Laraia claims that Kimberly-Clark negligently loaded the trailer at its location in Neenah, Wisconsin. Second, Laraia claims that Kimberly-Clark negligently trained its employees regarding how to load a trailer. Laraia seeks damages for medical expenses, lost income, loss of earning capacity, and pain and suffering in an amount to be determined at trial.

ANALYSIS

All of the relevant facts involving timeliness are alleged in the complaint. The material facts are that (1) the alleged negligent acts occurred in Wisconsin, (2) Laraia was injured in Illinois onor about November 19, 2015, as a result of the alleged negligence, and (3) Laraia filed his complaint on November 6, 2018. This dispute is about whether Illinois or Wisconsin's statute of limitations applies. For personal injury actions, the statutes of limitations in Wisconsin and Illinois are respectively three and two years. See Wis. Stat. § 893.54; 735 Ill. Comp. Stat. 5/13-202. This action is therefore untimely if Illinois' statute of limitations applies.

Kimberly-Clark argues that, under Wisconsin's borrowing statute, § 893.07, this court must borrow Illinois' statute of limitations and dismiss this action as untimely. Wisconsin Statute § 893.07 provides:

(1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state.

(2) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies to that action has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state.

Wis. Stat. § 893.07. Wisconsin courts use a "place of injury test" to determine whether a cause of action is "foreign" under § 893.07. Abraham v. Gen. Cas. Co. of Wis., 217 Wis. 2d 294, 304, 576 N.W.2d 46 (1998). "[T]he place of the tortious injury (hereinafter 'place of injury test') is the decisive factor for causes of action sounding in tort: if a party is injured outside the state of Wisconsin, the injured's claim in tort is a 'foreign cause of action.'" Id.

Here, there is no dispute that Laraia's negligence claims were filed in Wisconsin and that they are "foreign" causes of action under § 893.07 because Laraia was injured in Illinois. Thus, it would appear that Laraia's action is barred by the Illinois two-year statute of limitations. But the parties disagree as to what the rest of § 893.07(1) means. Kimberly-Clark argues that, once it isdetermined that a foreign cause of action exists, Wisconsin's borrowing statute requires that the shorter of Wisconsin's statute of limitations and the statute of limitations of the state where the injury occurred be adopted. Laraia, on the other hand, argues that § 893.07(1) must be read to mean "if an action is barred in Wisconsin for injuries that occurred in another state, and that state's statute of limitations applies and has expired, then the action is also barred in Wisconsin." Pl.'s Resp. Br, ECF No. 8, at 4. Laraia's reading thus requires that the court first determine whether Illinois' statute of limitations would apply before borrowing Illinois' statute. And in Laraia's view, Illinois' statute of limitations would never have been applicable to this action because Illinois lacks personal jurisdiction over Kimberly-Clark and because Illinois' choice of law analysis would have applied Wisconsin's statute of limitations. Kimberly-Clark disputes Laraia's reading of Wisconsin's borrowing statute, but argues that it would nevertheless prevail even under Laraia's reading.

Kimberly-Clark's reading of § 893.07 finds support in Wisconsin case law. In Guertin v. Harbour Assurance Company of Bermuda, Ltd., the Wisconsin Supreme Court addressed the issue of whether § 893.07 barred a tort action brought in Wisconsin when the plaintiff was injured in Illinois. 141 Wis. 2d 622, 624-25, 415 N.W.2d 831 (1987). While the Guertin court's analysis focused on resolving the ambiguity of the phrase "foreign cause of action," which culminated in the adoption of the place-of-injury test, id. at 628-31, the court also spoke to the borrowing statute's effect, and in so doing, it differentiated between two conflict of law issues. Id. at 630-31. The court noted that one type of conflict issue is "the selection of law to resolve the substantive issues of an action that is timely before a Wisconsin court," id. at 630, but before reaching that conflict, the court must adjudicate the "initial conflict of law determination as to the timeliness of the action." Id. at 631. The court made clear that the matter of timeliness "is resolved by [theWisconsin borrowing statute] which adopts as Wisconsin law either the law of the state where the cause of action arose or Wisconsin's law, whichever is shorter." Id. The court further explained:

[H]ad [the plaintiff] been injured in a state with a longer limitation period than Wisconsin, Wisconsin's shorter statutory period would have been applied under sec. 893.07, Stats. Wisconsin's borrowing statute uses the place of injury only to determine which jurisdictions are to be compared in establishing the shorter limitation period.

The manifest intent of the legislature in enacting this borrowing statute was to adopt the shortest possible limitation period for actions litigated in this state potentially subject to more than one statute of limitations. The policies advanced by such a statute include the reduction of forum shopping, the prevention of stale claims, the expedient litigation of controverted matters, and the avoidance of uncertainty in assessing the timeliness of bringing an action in this state without the necessity of a court hearing to make such a determination, thereby preserving scarce judicial resources. . . . To apply choice-influencing considerations to the issue of timeliness of an action resolved by sec. 893.07, Stats., as it is currently drafted . . . would defeat the express provisions and policies served by the statute.

Id. at 631-32; see also Abraham, 217 Wis. 2d at 304-05.

The Wisconsin Supreme Court's Guertin opinion made two things clear. First, under Wisconsin's borrowing statute, the place of injury determines whether a cause of action is "foreign," and once a foreign cause of action is found, the statute requires that the court adopt the shorter of Wisconsin's statute of limitations and the statute of limitations of the place of injury. See Guertin, 141 Wis. 2d at 631-32; see also Wenke v. Gehl Co., 2004 WI 103, ¶ 67, 274 Wis. 2d 220, 682 N.W.2d 405 ("Section 893.07 simply instructs that Wisconsin courts adhere to the policy reflected in the shortest applicable limitations period . . . ."). Second, the purpose of Wisconsin's borrowing statute is to eliminate the need for substantive choice of law analysis until after timeliness is resolved. See Guertin, 141 Wis. 2d at 630-32; see also Paynter v. ProAssurance Wis. Ins. Co., 2018 WI App 27, ¶¶ 15, 19, 381 Wis. 2d 239, 911 N.W.2d 374 ("Guertin makes clear that choiceof laws considerations are not relevant to determining whether the borrowing statute applies to a particular lawsuit."); Faigan v. Doubleday Dell Publ'g Grp., Inc., 98 F.3d 268, 270 (7th Cir. 1996) ("The [Guerin] court eschewed any consideration of whether the cause of action has significant contacts with Wisconsin,...