Theunissen v. Gsi Group

• Decision Date: 10 July 2000
• Docket Number: Civil Action No. 4:98cv212-D-A
• Parties: Herbert THEUNISSEN, Jr., Plaintiff, v. GSI GROUP, Previously Known as Grain Systems, Inc., Defendant.
• Court: U.S. District Court — Northern District of Mississippi

109 F.Supp.2d 505

Herbert THEUNISSEN, Jr., Plaintiff, v. GSI GROUP, Previously Known as Grain Systems, Inc., Defendant.

Civil Action No. 4:98cv212-D-A

United States District Court, N.D. Mississippi, Greenville Division.

July 10, 2000.

COPYRIGHT MATERIAL OMITTED

John H. Daniels, III, Dyer, Dyer, Dyer & Jones, Greenville, MS, for Plaintiff.

Edwin William Tindall, Lake Tindall, LLP, Greenville, MS, for Defendant.

OPINION

DAVIDSON, District Judge.

Before the court is the motion of Defendant GSI Group for dismissal pursuant to Rule 12(b)(6), or alternatively, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Upon due consideration, the court finds that the motion should be granted.

The parties have submitted extensive memoranda in support of and in opposition to the instant motion. In addition, both parties have attached as exhibits to their briefs excerpts from depositions and extraneous materials relevant to this cause. It is entirely within the discretion of the court to accept material outside the pleadings when ruling on a motion to dismiss and, therefore, convert the motion into one for summary judgment. Ware v. Associated Milk Producers, Inc., 614 F.2d 413 (5th Cir.1980); Bolton v. United States, 604 F.Supp. 1219, 1220 (S.D.Miss. 1985). Should the court decide to accept the extraneous material, it must then treat the matter as one for summary judgment. Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972). Thus, because the submitted material is comprehensive enough to enable the court to make a complete and rational determination, the motion to dismiss shall be converted to one for summary judgment.

Factual Background¹

Herbert Theunissen originally filed this cause of action on September 25, 1998, in the Circuit Court of Washington County, Mississippi, against Defendant GSI Group (GSI) alleging claims of strict liability in tort, breach of warranty, and negligence as the result of an injury he sustained on August 17, 1996. GSI filed a notice of removal in this court on October 28, 1998, on the basis of diversity of citizenship, 28 U.S.C. § 1332. Much of the factual detail surrounding the Plaintiff's claims is not crucial to the disposition of the instant motion, but will be summarized for convenience.

Plaintiff's claims arise out of an injury he sustained while employed as a farm laborer by Theunissen Farm Partnership in Washington County, Mississippi. While removing grain from a grain bin located on the farm, Plaintiff's left foot became entangled in an unguarded auger located under the floor of the bin. The auger caused significant injury to Plaintiff's foot and as a result, he underwent a below-the-knee amputation.

The grain bin structure was originally erected in 1990 by Lowry Storage Systems, Inc., a Mississippi corporation engaged in the business of building grain bins on a turn-key basis. In June 1990, Lowry contracted with Tommy Newton Farms, predecessor in interest to Theunissen Farm Partnership, for construction of a twenty-seven foot grain storage bin on lands operated by Tommy Newton Farms. GSI, through its predecessor corporation, Grain Systems, Inc., designed and manufactured the grain bin structure sold to Lowry for the construction contract with Tommy Newton Farms. Final payment for the grain bin was made by Tommy Newton Farms on or about September 11, 1990.

Plaintiff has alleged three separate counts: strict liability, breach of warranty, and negligence. As to the first count, Plaintiff contends that GSI was the manufacturer, seller, contractor, and/or installer of the grain bin at issue, including the component parts which caused Plaintiff's injury, and that the materials were defective as manufactured or designed. Plaintiff's second count, for breach of implied warranty, alleges that the materials provided by GSI did not conform to express or implied warranties of merchantability. Finally, count three alleges negligent design, construction, selection and/or assembly of the grain bin and insufficient warnings or failure on the part of GSI to guard against injury by the auger.

Discussion

A. Summary Judgment Standard

On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) ("The burden on the moving party may be discharged by `showing'... that there is an absence of evidence to support the non-moving party's case."). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden shifts to the nonmovant to "go beyond the pleadings and by ... affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. That burden is not discharged by "mere allegations or denials." Fed. R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Rule 56(c) mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the nonmovant. 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).

B. Strict Liability Claim

With respect to Plaintiff's strict liability claim, GSI argues that the claim is barred by Mississippi Code Annotated § 15-1-41, which provides a six (6) year limitations period. Plaintiff contends that GSI waived the affirmative statute of limitations defense by failing to raise it in its Answer to the Complaint as required by Rule 8(c) of the Federal Rules of Civil Procedure. The court will first address the issue of waiver.

1. Waiver of Affirmative Defense

Rule 8(c) of the Federal Rules of Civil Procedure provides: "In pleading to a preceding pleading, a party shall set forth affirmatively ... statute of limitations...." Rule 8(e) provides "(1) each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required." The affirmative defense pleading requirement in Rule 8(c) has been generally interpreted under the same liberal standards as those for a complaint. Marine Overseas Servs., Inc. v. Crossocean Shipping, Inc., 791 F.2d 1227, 1233 (5th Cir.1986).

In determining whether a party has waived an affirmative defense, the Fifth Circuit in Lucas v. United States, 807 F.2d 414, 417-18 (5th Cir.1986) instructed:

Where the matter is raised in the trial court in a manner that does not result in unfair surprise, however, technical failure to comply precisely with Rule 8(c) is not fatal. That is, the defendant does not waive an affirmative defense if "he raised the issue at a pragmatically sufficient time, and the [plaintiff] was not prejudiced in its ability to respond."

Id. at 417-18 (internal citations omitted). "Central to requiring the pleading of affirmative defenses is the prevention of unfair surprise." Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir.1987). Thus, when a plaintiff can adequately confront and defend against an affirmative defense, there is no undue prejudice. See Bonti v. Ford Motor Co., 898 F.Supp. 391, 395 (S.D.Miss.1995) (finding no waiver where defendant presented issue of statute of limitations well before trial and plaintiff fully responded to summary judgment motion grounded on that issue); but see Stephens v. C.I.T. Group/Equip. Fin., Inc., 955 F.2d 1023, 1025-26 (5th Cir.1992) (finding waiver where defendant failed to mention statute of limitations in its answer, in pretrial order, during trial, in post-trial motions, or in original appellate brief).

In the case sub judice, the Defendant has presented the statute of limitations issue by way of summary judgment before the scheduled trial of this cause. Moreover, Plaintiff has fully responded to Defendant's motion on that issue. Nothing before the court suggests that Plaintiff will be or has been prejudiced by confronting and defending against the affirmative defense. Based on the foregoing, the court is of the opinion that the Defendant raised the defense at a pragmatically sufficient time to allow the Plaintiff to respond without prejudice.

2. Statute of Repose

Although Defendant refers to Mississippi Code Annotated § 15-1-41 as a statute of limitations, it is rather a statute of repose. A statute of repose bars actions "after a period of time beginning with the act of an alleged wrongdoer unrelated to the date of injury." Stephens v. St. Regis Pulp & Paper Co., 863 F.Supp. 341, 343 (S.D.Miss.1994) (quoting Rector v. Mississippi State Highway Comm'n, 623 So.2d 975, 977 (Miss.1993)). Section 15-1-41, which establishes a six-year limitations period for actions arising from construction deficiencies, provides:

No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property ... against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.

Plaintiff contends that section 15-1-41 cannot support a summary judgment in GSI's favor because the grain bin structure is not an improvement to real...