Wilson v. Butzin
| Decision Date | 10 May 2021 |
| Docket Number | Case No. 20-6051 |
| Parties | CHRISTOPHER D. WILSON, Plaintiff-Appellant, v. ORVILLE J. BUTZIN, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
CHAD A. READLER, Circuit Judge. Christopher Wilson sued Orville Butzin in state court for injuries resulting from a motor vehicle accident. Wilson's suit, however, ran into trouble right out of the gate: the summons issued to Butzin was returned as undeliverable. So too were two other attempts at service. More than four years after the accident, Wilson finally completed service. After removing the case, Butzin moved for summary judgment, contending that, under Kentucky law, Wilson had not commenced the action within the applicable statute of limitations. The district court agreed and granted judgment in Butzin's favor. We affirm.
Wilson and Butzin were involved in a motor vehicle accident on January 7, 2016. Nearly two years later, on December 15, 2017, Wilson filed suit against Butzin in Kentucky state court. Wilson's complaint alleged that Butzin's negligent driving caused Wilson to experience bodily injuries and to incur medical expenses and lost wages. Although at the time of the accident Butzin was driving a truck owned by his employer (a service provider for FedEx Ground), neither corporation was named as a defendant in the complaint.
The accident report prepared by the police listed Butzin as residing in Lexington. So Wilson directed a summons to Butzin at that address. But there was one problem: Butzin no longer lived there. When the summons was returned as undeliverable, the court clerk added an entry to the case's docket indicating that service had failed but listed a forwarding address for Butzin in Indiana.
Wilson attempted service again in May 2019 to the same Lexington address. Wilson reused that address because, he says, he found a White Pages report showing Butzin "still maintained a presence in Lexington," with Butzin's Facebook profile indicating the same. That summons was also returned, this time with a note indicating that the "subject does not live at this address." Nine months later, Wilson again attempted to serve Butzin in Kentucky. Although not entirely clear, it appears Wilson tried to serve Butzin in Clark County, where the accident occurred, while still using Butzin's former Lexington address, which is in Fayette County. In any event, like its predecessors, that third summons was also returned unexecuted.
Utilizing Butzin's Indiana address, Wilson eventually was able to effectuate service on April 23, 2020. Upon receiving the summons, Butzin promptly filed an answer and removed the case to federal court, invoking our diversity jurisdiction. See 28 U.S.C. § 1332(a). Butzin then moved for summary judgment on the ground that Wilson failed to effectuate service within the applicable two-year limitations period. Wilson responded that he had acted in good faith in his efforts to serve Butzin, thereby excusing any delay in service. According to Wilson, on January4, 2018, he received a notice from Butzin's "agent," MGM Adjusters, explaining that FedEx Ground was managing the matter and acknowledging receipt of the summons and complaint "filed against our contracted service provider and its driver." MGM also requested an extension to "answer the complaint you filed," which Wilson granted. Those statements, to Wilson's mind, provided reasonable grounds to believe that Butzin's "agent" had accepted service on Butzin's behalf. Wilson also engaged in settlement negotiations with MGM and FedEx, who represented to Wilson that they would refer the matter to counsel if they were unable to reach an agreement. Only after settlement negotiations failed (and with no answer to the complaint filed) did Wilson again attempt to serve Butzin.
The district court sided with Butzin. It held that while Wilson filed his suit within the applicable limitations period, he nonetheless failed to commence the action during that period because he abandoned any good-faith effort to serve the first summons. Accordingly, the district court granted Butzin summary judgment.
Before turning to the issues underlying service of process, we begin with Wilson's contention that Butzin waived his statute-of-limitations defense by failing to raise it in his answer. The district court found that the issue was not waived, a determination we review for an abuse of discretion. Rogers v. IRS, 822 F.3d 854, 856 (6th Cir. 2016).
Today's case proceeds on the basis of diversity jurisdiction, with the claims at issue thus arising under state law. In that instance, "state law governs [whether a] defense[] must be pleaded affirmatively to avoid waiver," but "[f]ederal law governs whether [the] defense has been waived in federal court." Brent v. Wayne Cnty. Dep't of Hum. Servs., 901 F.3d 656, 680 (6th Cir. 2018). Starting with the state law question, under Kentucky law, the statute of limitations is a defense thatmust be affirmatively pleaded. Ky. R. Civ. P. 8.03; see Underwood v. Underwood, 999 S.W.2d 716, 720 (Ky. Ct. App. 1999). As a result, we must determine whether, as a matter of federal law, Butzin waived his statute-of-limitations defense before the district court.
In federal civil proceedings, a defendant must assert a statute-of-limitations defense in her first responsive pleading. See Fed. R. Civ. P. 8(c). Failing to do so can ordinarily constitute waiver of the defense. Brent, 901 F.3d at 680. But "[a] district court may, in its discretion, allow a defendant to raise an affirmative defense for the first time" in a later motion (such as a summary judgment motion) "if doing so does not result in surprise or prejudice to the plaintiff." Rogers, 822 F.3d at 856 (citation omitted); see Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997). Wilson does not claim to have been surprised by Butzin's limitations defense, but he does claim that he was prejudiced by the defense's late assertion. That turns our attention to the issue of prejudice.
Prejudice exists if the assertion of a new defense would "require the [plaintiff] to expend significant additional resources to conduct discovery and prepare for trial; significantly delay the resolution of the dispute; or prevent the plaintiff from bringing a timely action in another jurisdiction." Rogers, 822 F.3d at 857 (quoting Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994)). As an initial matter, we are skeptical that Butzin raised a statute-of-limitations defense in his answer. At best, Butzin asserted that Wilson's complaint is "barred by the provisions of the Kentucky Motor Vehicle Reparations Act, as contained in Subtitle 39 of Chapter 304 of the Kentucky Revised Statutes." Subtitle 39, in turn, contains 44 different sections, a couple of which perhaps could be construed as a bar to Wilson's action. We need not parse those 44 sections, however, for even assuming Butzin failed to assert a statute-of-limitations defense in his answer, Wilson fails to demonstrate any prejudice from Butzin waiting to do so until his summary judgment motion. See Rogers, 822 F.3d at 856-57. Butzin filed that motion promptly—just sevenweeks after he filed his answer. Wilson, in turn, addressed Butzin's statute-of-limitations defense in his response, his first opportunity to do so. Add in the fact that no formal discovery has occurred to date, and it is difficult to see how this sequence of events prejudiced Wilson, and thus how the district court abused its discretion. See id. at 857 (); Stupak-Thrall v. Glickman, 346 F.3d 579, 585 (6th Cir. 2003) (); Smith, 117 F.3d at 969 ().
Wilson counters that, even if Butzin did not waive the defense, as a matter of equity, Butzin should be estopped from asserting the defense. Under Kentucky law, "[e]quitable estoppel precludes a defendant, because of his own wrongdoing, from using the statute of limitations as a defense." See Williams v. Hawkins, 594 S.W.3d 189, 193 (Ky. 2020) (emphasis added); see also Saab Auto. AB v. Gen. Motors Co., 770 F.3d 436, 440 (6th Cir. 2014) ; Antioch Co. Litig. Tr. v. Morgan, 644 F. App'x 579, 583 (6th Cir. 2016) (). We are aware of no wrongdoing by Butzin, however, that warrants this remedy. Wilson purports to have believed that Butzin received service based on MGM's notice that it had received the summons and complaint "filed against our contracted service provider and its driver," which is why, according to Wilson, he did not "pursu[e] additional efforts to serve [Butzin] earlier." But how are MGM's actions attributable to Butzin? There is no evidence that Butzin granted MGM authority to accept service on his behalf. SeeKindred Healthcare, Inc. v. Henson, 481 S.W.3d 825, 830 (Ky. Ct. App. 2014) (). Nor, as Wilson concedes, did Butzin hold out MGM as his agent. See Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 499 (Ky. 2014) . Absent evidence that MGM possessed actual or...
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