Lee v. Toshiba Mach. Co. of America, CIV 1-90-0053.

• Decision Date: 10 March 1992
• Docket Number: No. CIV 1-90-0053.,CIV 1-90-0053.
• Citation: 804 F. Supp. 1029
• Parties: Judy LEE, Individually and as next of kin and executrix of the Estate of Glenn R. Lee, deceased, Plaintiff, v. TOSHIBA MACHINE COMPANY OF AMERICA, Fanuc USA Corporation, Toshiba Machine Co., Ltd., and Fanuc, Ltd., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

804 F. Supp. 1029

Judy LEE, Individually and as next of kin and executrix of the Estate of Glenn R. Lee, deceased, Plaintiff, v. TOSHIBA MACHINE COMPANY OF AMERICA, Fanuc USA Corporation, Toshiba Machine Co., Ltd., and Fanuc, Ltd., Defendants.

No. CIV 1-90-0053.

United States District Court, E.D. Tennessee, at Chattanooga.

March 10, 1992.

Douglas M. Campbell, Chattanooga, Tenn. and John E. Stephenson, Jr., and Earle B. May, Jr., Atlanta, Ga., for plaintiff.

John Thomas Feeney, Leitner, Warner, Moffitt, Williams, Dooley, Carpenter & Napolitan, Chattanooga, Tenn.; Thomas S. Scott, R. Kim Burnette, Arnett, Draper & Hagood; John B. Fowler, Ambrose, Wilson, Grimm & Durand, Knoxville, Tenn.; and Jon D. Ross, and John A. Coates, Neal & Harwell, Nashville, Tenn., for defendants.

MEMORANDUM OPINION

JORDAN, District Judge.

This civil action is before the Court for consideration of motions by the defendants Toshiba Machine Co., Ltd. (hereinafter "Japanese Toshiba") and FANUC, Ltd. (hereinafter "Japanese FANUC") to dismiss the plaintiff's claims against them on the ground of the bar of the applicable statute of limitation docs. 61 and 65, respectively. These parties were added by an amended complaint filed more than one year after the plaintiff's decedent's death. See Tennessee Code Annotated § 28-3-104 (1991 supp.); see also T.C.A. § 29-28-103(a) (1980 repl. vol.). From the plaintiff's point of view, these motions present issues of relation back under Fed.R.Civ.P. 15 as it existed before amendments effective December 1, 1991.

The plaintiff's decedent suffered injury on May 25, 1989, and died the next day. His widow, the plaintiff, filed her original complaint in the Hamilton County, Tennessee Circuit Court on January 12, 1990. In her original complaint, the plaintiff sued Toshiba Machine Company of America and FANUC USA Corporation. While the plaintiff identified these defendants in the caption of her original complaint as Japanese corporations, she alleged in the complaint that they are Illinois corporations.

The plaintiff stated causes of action against these two defendants for the allegedly wrongful death of her husband under theories of strict liability in tort, negligence, and failure to warn. She alleged that Toshiba Machine Company of America had designed, manufactured and sold the vertical milling machine which caused her decedent's workplace death by throwing an elbow joint into his chest, and that FANUC USA Corporation had designed, manufactured and sold the computer-operated control panel on this milling machine.

The defendants removed this civil action to this Court on the ground of diversity of citizenship. No issue is presented concerning the existence of diversity jurisdiction, or the procedural sufficiency of the removal. On July 27, 1990, the plaintiff filed her motion doc. 17 for leave to amend her complaint, to add Japanese Toshiba and Japanese FANUC as defendants. In this motion and in her proposed amended complaint, the plaintiff identified these Japanese corporations as the designers and/or manufacturers of the milling machine and the control panel, respectively, and stated that the defendants named originally are wholly owned American subsidiaries of the Japanese corporations. She stated that she had just learned these facts after diligent inquiry, and that these defendants had timely notice of the commencement of her civil action, and knew or should have known that but for a mistake concerning the corporate identities of all four defendants, she would have named the Japanese corporations as defendants in her original complaint.

The Court granted this motion in an Order filed on August 23, 1990 doc. 29, reserving any decision regarding the relation back issue. The Clerk filed the amended complaint, tendered with the motion, on August 23 doc. 30. There can be no dispute that neither the motion for leave to amend the complaint nor the amended complaint came within one year after the plaintiff's decedent's death.

In support of its motion to dismiss, Japanese Toshiba offers the affidavit of one of its attorneys, R. Kim Burnette, to show that the plaintiff was guilty of inexcusable neglect in not seeking to add Japanese Toshiba as a defendant within the one year allowed by the statute doc. 62. Mr. Burnette points to correspondence dated August 4, 1989 from counsel for the plaintiff's decedent's employer, ABB Combustion Engineering Systems, the intervening plaintiff in this civil action, to counsel for the plaintiff, in which counsel for ABB Combustion Engineering Systems identified the manufacturer of the vertical milling machine as "Toshiba Machine Company of Tokyo, Japan," with an address in Elk Grove Village, Illinois, and counsel in Los Angeles. Also in this correspondence, counsel for ABB Combustion Engineering Systems wrote that the milling machine had a control panel manufactured by FANUC, which "apparently" is a "Japanese manufacturing concern ... with its American headquarters in Elk Grove, Illinois."

Mr. Burnette also points to a nameplate on the vertical milling machine on which is stamped or printed "Toshiba Machine Co., Ltd./Tokyo Japan." An instruction manual in the possession of ABB Combustion Engineering Systems identifies its source similarly, and, on one page, identifies "Toshiba Machine Co., Ltd." as the "head office" with a Tokyo address, "Toshiba Machine Co., America" as the "Chicago office" with an Elk Grove Village, Illinois address, and "Toshiba Mecanica do Brasil Ltda." with a Sao Faulo (sic: Paulo?) address. Finally, Mr. Burnette points to material which he obtained from the business reference section of a public library and which shows the affiliation between Japanese Toshiba and Toshiba Machine Company of America.

Japanese FANUC relies upon some of the same material to argue that the plaintiff's claim against it is time-barred. In an affidavit doc. 67 submitted in support of Japanese FANUC's motion, Susan L. Bell, a legal assistant employed by Japanese FANUC's counsel, provides details concerning the available library reference material which shows the affiliation between Japanese FANUC and FANUC USA Corporation, similar to the material concerning Japanese Toshiba and Toshiba Machine Company of America described in Mr. Burnette's affidavit. There is also evidence in the record to show that the control panel cabinet attached to the Toshiba vertical milling machine had a plate on its back which read in part, "FANUC LTD/MADE IN JAPAN" see doc. 68, exs. J and L. In addition, Japanese FANUC has filed the declaration of the manager of its legal department, Yoshihiro Fukai doc. 66, supplemented in doc. 75.

Mr. Fukai states, in the pertinent portions of his declaration, that on August 7, 1990, the vice president of FANUC USA Corporation sent to the president of Japanese FANUC a written communication, via telecopier, concerning this and other products liability litigation, and that the vice president of FANUC USA Corporation stated in this communication the date and place of the plaintiff's decedent's fatal accident, the identity of the plaintiff, the identities of the four defendants, the date of the commencement of this civil action, the fact of its removal to this Court, and the fact of the amendment of the complaint to name Japanese Toshiba and Japanese FANUC as additional defendants. Mr. Fukai states, "This communication was the first notice received from any source by FANUC LTD or by any of its officers, directors, or employees, that a lawsuit had been filed in the United States against FANUC LTD or FANUC USA."

Mr. Fukai admits that Japanese FANUC had notice in 1989 of the plaintiff's decedent's fatal accident. The vice president of FANUC USA Corporation, in his August 7, 1990 communication to the president of Japanese FANUC, referred to the fact that FANUC USA Corporation had informed Japanese FANUC of this occurrence "last year." Mr. Fukai says that neither Japanese FANUC nor its American subsidiary has been able to locate any written record of this 1989 communication.

In FANUC USA Corporation's first answer doc. 3 to the original complaint, filed on February 22, 1990, in response to the allegation,

At all times material herein, Fanuc i.e., FANUC USA Corporation was and is now engaged in the business of designing, manufacturing, and selling certain electronic and/or computer operated control panels for use as component parts in various types of industrial machines and equipment, specifically including the vertical milling machines designed, manufactured, and sold by Toshiba i.e., Toshiba Machine Company of America,

this defendant answered, "Admitted." However, on April 25, 1990, FANUC USA Corporation moved for leave to amend its answer to change its response to this allegation to a denial doc. 7. In its answer doc. 8 to the original complaint, filed on May 18, 1990, Toshiba Machine Company of America denied that it was the manufacturer of the vertical milling machine, and admitted that it was the seller of the machine.

The plaintiff, in her responses docs. 71 and 76 to the motions under consideration, points to the timing of FANUC USA Corporation's amendment of its answer and of Toshiba Machine Company of America's answer as evidence that she was "sandbagged" (the plaintiff's counsel's word). Counsel for the plaintiff contend that they were misled or confused — not purposefully — by the letter from counsel for ABB Combustion Engineering Systems. Then, counsel for the plaintiff say, when they sent a demand letter to "Toshiba Machine Company" (at Toshiba Machine Company of America's address) and to "FANUC U.S.A. Corporation," they received no response which might have eliminated their confusion. Once the plaintiff commenced her civil action, the delay in the amendment of FANUC USA Corporation's answer and extension of the time within which Toshiba Machine Company of America was required to answer led to a situation in which the plaintiff received formal...