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Douglas v. Norwood

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

August 27, 2014

BRADY DOUGLAS and ROBERTO RAMIREZ, PLAINTIFFS
v.
CHARLES NORWOOD d/b/a NORWOOD TRUCKING, NORWOOD TRUCKING, INC., NTC and ROGER SHAW, DEFENDANTS

For Brady Douglas, Roberto Ramirez, Plaintiffs: Jonathan Peeples Barrett, LEAD ATTORNEY, BARRETT LAW, PLLC, Madison, MS.

For Charles Norwood, doing business as Norwood Trucking, Norwood Trucking, Inc., NTC, Roger Shaw, Defendants: Walter Alan Davis, LEAD ATTORNEY, DUNBAR & ASSOCIATES, PLLC, Oxford, MS.

ORDER

MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.

This cause comes before the court on defendants' motion for Rule 12 dismissal or, alternatively, Rule 56 summary judgment, on the grounds that this action was not timely filed. Plaintiffs have responded in opposition to the motion, and, the court, having considered the memoranda and submissions of the parties, concludes that a Rule 56 summary judgment motion is the proper context in which to consider the limitations issues in this case but that the parties should first conduct limited discovery prior to such a motion being filed. The instant motion will therefore be dismissed

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without prejudice to refiling at a later date. Prior to dismissing the motion to dismiss, however, the court will provide its initial observations regarding the issues raised in it. Hopefully, these observations will assist the parties in their discovery and future briefing on these issues.

This is a negligence case, based on diversity jurisdiction, involving an automobile accident that occurred in Boone County, Kentucky on November 2, 2010. In their complaint, the plaintiffs, who are Texas residents, seek recovery against defendant Roger Shaw and his employer Charles Norwood d/b/a Norwood Trucking, Inc. (" Norwood" ). Both Shaw and Norwood are domiciled in Mississippi, and plaintiffs allege that the negligence of both contributed to the accident which left them injured.

Defendants argue in the present motion, however, that Kentucky law applies in this case and that its two-year statute of limitations bars the instant action. Plaintiffs filed suit in this court on October 31, 2013, which is almost three years after the accident and thus, barring some form of legal or equitable tolling, is untimely under Kentucky law. However, the limitations issues in this case are rendered far more difficult and complex by the fact that plaintiffs initially filed suit in Texas, on August 3, 2012,[1] which was timely even under Kentucky law. However, the Texas court granted, on June 19, 2013, defendant Charles Norwood's motion to dismiss for lack of personal jurisdiction. The Texas court only granted this relief after Norwood had represented to it, in formal briefing in March 2013, that:

The dismissal and refiling of this case in Boone County, Kentucky would not work an injustice to Cross Plaintiff, as the statute of limitations has not run.[2]

As best this court can tell, this statement was not accurate at the time it was made, given that Kentucky's two-year statute of limitation appears to have run, barring some tolling, on November 2, 2012. As discussed below, it appears to the court that Kentucky law provides for no such tolling of its two-year statute of limitations on the basis of claims filed outside of that state.

Norwood now moves this court for dismissal on the very same statute of limitations grounds which, he assured the Texas court, would not pose an obstacle to Ramirez refiling this suit. This obviously raises serious equitable and estoppel concerns, which the court discusses below. First, however, the court will address the legal issues relating to whether this action was timely filed, barring some form of estoppel. The court initially observes that, in cases involving automobile accidents, it has generally applied the law of the state where the accident occurred, even in cases where, as here, there were allegations that related acts of negligence occurred in other states. In Maggette v. BL Development Corp., No. 2:07CV181, for example, this court, following considerable research, applied Arkansas law to a case involving a bus accident resulting in multiple fatalities which occurred in that state. This court applied Arkansas law even though the bus was filled with passengers from Illinois on their way to a casino in Mississippi, and

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there were allegations that negligent acts in both states had contributed to the accident.

In this case, plaintiffs allege that acts of, inter alia, negligent hiring and supervision in Mississippi by Norwood contributed to the accident in Kentucky, but the complaint's allegations in this regard are rather vague and conclusory. For example, the complaint alleges that Shaw was an incompetent driver and that Norwood should have known such when it hired him, but it makes no specific allegations in this regard. The complaint further fails to provide specifics as to how Norwood failed to " supervise" Shaw while he was driving hundreds of miles away in Kentucky. Accordingly, while the court makes no formal ruling on the choice of law issues at this time, it is rather strongly inclined to conclude that Kentucky law will apply in this case. Indeed, the parties ...


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