Wilburn v. Pepsi-Cola Bottling Company of St. Louis

• Decision Date: 11 March 1974
• Docket Number: No. 73-1744.,73-1744.
• Citation: 492 F.2d 1288
• Parties: Joan Evans WILBURN, Plaintiff-Appellant, v. PEPSI-COLA BOTTLING COMPANY OF ST. LOUIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

492 F.2d 1288 (1974)

Joan Evans WILBURN, Plaintiff-Appellant, v. PEPSI-COLA BOTTLING COMPANY OF ST. LOUIS, Defendant-Appellee.

No. 73-1744.

United States Court of Appeals, Eighth Circuit.

Submitted February 14, 1974.

Decided March 11, 1974.

Roger L. Scherck, St. Louis, Mo., for plaintiff-appellant.

David O. Danis, St. Louis, Mo., for defendant-appellee.

Before HEANEY and BRIGHT, Circuit Judges, and DENNEY, District Judge.^*

PER CURIAM.

Plaintiff-Joan Evans Wilburn brought this diversity action in the United States District Court for the Eastern District of Missouri, alleging that she sustained personal injuries in an accident in Belleville, Illinois, as a result of the negligence of the Pepsi-Cola Bottling Company of St. Louis, Missouri. Plaintiff filed her suit on July 6, 1973, more than two years after the date of the accident, May 18, 1971, and defendant moved to dismiss on the ground that the action was barred by the Illinois two-year statute of limitations¹ which applies to this cause of action under the Missouri borrowing statute.² Relying solely upon the above facts recited in the pleadings, the trial court granted the motion for dismissal, and held that the action was barred by the Illinois statute of limitations.

Thereafter plaintiff-Wilburn in a motion entitled "Motion for Amendment of Judgment" sought relief from the summary dismissal of the action through an amendment of the judgment and she requested leave to amend the complaint. The district court denied any relief, and Ms. Wilburn brings this appeal. For reasons stated below, we reverse and remand the action for further proceedings.

Although the inclusion of dates in the complaint showing the action to be untimely renders the complaint subject to dismissal upon motion, see Kincheloe v. Farmer, 214 F.2d 604 (7th Cir. 1954), cert. denied, 348 U.S. 920, 75 S. Ct. 306, 99 L.Ed. 721 (1955); see generally 5 Wright and Miller, Federal Practice and Procedure §§ 1226, 1357 (1969), as we have already mentioned, plaintiff sought relief from the court's ruling by submitting a proposed amended complaint. The proposed amended complaint alleged that because of statements and conduct of defendant's agents in conducting settlement negotiations, "plaintiff and plaintiff's attorney were led down the primrose path until the statute of limitations had run." This amended complaint, fairly construed, may be taken to allege affirmatively that defendant is precluded by waiver or estoppel from asserting a statute of limitations defense. As such, under Illinois law, which both parties agree applies to the statute of limitations defense, a defendant may be estopped from asserting a statute of limitations defense in a negligence action by reason of misleading conduct by agents of the defendant during settlement negotiations. Burgo v. Illinois Farmers Insurance Co., 8 Ill. App.3d 259, 290 N.E.2d 371 (1972).

Fed.R.Civ.P. 15(a), provides as to amending pleadings "by leave of court" that "leave shall be freely given when justice so requires." The provisions of Rule 15(a) are invoked by a proper motion under either Rule 59(e), motion to alter or amend a judgment, or Rule 60(b), motion to relieve a party from a final judgment or order for mistake, inadvertence, surprise or excusable neglect and for other reasons, accompanied by a proposed amended complaint. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L. Ed.2d 222 (1962); see 3 Moore's Federal Practice ¶ 15.10 (1972); 6 Wright and Miller, Federal Practice and Procedure § 1489 (1971). Although appellant's motion for relief under Rule 59 sought "new findings and conclusions and * * * a new judgment," as though the case had been tried on the merits, the motion together with the prayer that the complaint be amended should be construed broadly as a motion to vacate the judgment in order to permit the filing of the amended complaint.

In commenting on the application of these rules in somewhat analogous circumstances, the Supreme Court in Foman v. Davis, supra, stated:

Rule 15(a) declares that leave to amend "shall be freely given when justice so requires" this mandate is to be heeded. See generally, 3 Moore, Federal Practice (2d ed. 1948), ¶¶ 15.08, 15.10. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. —

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