Kim et al v. Czerny et al

Filing 21

ORDER denying 12 Motion for Judgment on the Pleadings. Signed by Judge Douglas L Rayes on 12/27/2017. (MMO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Chad Kim, et al.,
Plaintiffs,

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Zuzanna A Czerny, et al.,

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ORDER

v.

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No. CV-17-03031-PHX-DLR

Defendants.

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At issue is Defendants Zuzanna and Magdalena Czerny's motion for judgment on

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the pleadings, which is fully briefed. (Docs. 12, 14, 15.) For the following reasons, the

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motion is denied.

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I. Background

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Plaintiffs Chad and Danae Kim, who are New Mexico residents, allege that they

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were injured in an automobile accident that occurred on January 13, 2015 in Tempe,

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Arizona. They claim that the accident was caused by Defendants, who are Arizona

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residents.

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Plaintiffs initially and timely filed suit against Defendants in New Mexico state

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court in November 2016. Defendants were served and the New Mexico action was

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removed to the United States District Court for the District of New Mexico. Eventually,

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the New Mexico action was dismissed without prejudice after the district court concluded

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that it lacked personal jurisdiction over Defendants. Plaintiffs then filed this action on

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September 6, 2017, alleging that the timely filing and diligent prosecution of their New

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Mexico action equitably tolled the two-year statute of limitations for personal injury

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actions in Arizona. A.R.S. § 12-542(1).

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II. Legal Standard

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A motion for judgment on the pleadings under Federal Rule of Civil Procedure

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12(c) "is properly granted when, taking all the allegations in the non-moving party's

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pleadings as true, the moving party is entitled to judgment as a matter of law." Fajardo

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v. Cty. of L.A., 179 F.3d 698, 699 (9th Cir. 1999). "Rule 12(c) is 'functionally identical'

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to Rule 12(b)(6) and . . . 'the same standard of review' applies to motions brought under

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either rule." Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011)

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(quoting Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989)). Thus,

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a motion for judgment on the pleadings should not be granted if the complaint is based on

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a cognizable legal theory and contains "sufficient factual matter, accepted as true, to state

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a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(internal quotation marks and citation omitted).

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III. Discussion

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Defendants argue Plaintiffs' complaint lacks a cognizable legal theory because it

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was filed outside the limitations period. Plaintiffs concede that this action was filed more

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than two years after the accident, but contend that limitations period was tolled as a result

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of the timely New Mexico action pursuant to A.R.S. § 12-504(A), Arizona's "savings

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statute."

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The savings statute provides, in relevant part:
If an action is commenced within the time limited for the
action, and the action is terminated in any manner other than
by abatement, voluntary dismissal, dismissal for lack of
prosecution or a final judgment on the merits, the plaintiff, or
a successor or personal representative, may commence a new
action for the same cause after the expiration of the time so
limited and within six months after such termination.
A.R.S. § 12-504(A).

Relief under the savings statute is discretionary.

determining whether a plaintiff should be permitted to refile:
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When

the court should ascertain whether the plaintiff acted
reasonably and in good faith, whether he prosecuted his case
diligently and vigorously, whether a procedural impediment
exists which affects his ability to file a second action, and
whether either party will be substantially prejudiced. . . . The
burden is on the plaintiff to present the particular
circumstances that justify relief under § 12-504.

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Jepson v. New, 792 P.2d 728, 735 (Ariz. 1990) (internal quotation and citation omitted).
Here, it is undisputed that: (1) Plaintiffs timely filed their personal injury action in
New Mexico, (2) the New Mexico action was dismissed without prejudice for lack of
personal jurisdiction, and (3) Plaintiffs commenced this action for the same cause after
the expiration of the limitations period but within six months after their New Mexico
action was dismissed. Plaintiffs therefore meet all the requirements of the statute.1 As
for the discretionary factors, there is no suggestion that Plaintiffs failed to diligently
prosecute their case in New Mexico. Defendants instead argue that Plaintiffs had no
good faith basis for believing the action could be maintained in New Mexico, and that the
resulting delay has caused prejudice because the parties' and witnesses' memories likely
have diminished in the time that has passed. (Doc. 15 at 2-3.) The Court disagrees.
First, the Court is not persuaded that Plaintiffs had no good faith basis for filing
their lawsuit in New Mexico. Simply because Defendants are not residents of New
Mexico does not mean that Plaintiffs could not have reasonably believed that Defendants
had other sufficient minimum contacts with New Mexico to confer personal jurisdiction.
Moreover, Plaintiffs have also named Progressive Insurance Company as a defendant,
and they might reasonably have believed that Progressive's contacts with New Mexico
were sufficient to maintain the suit.
Second, this action was filed approximately two years and seven months after the
accident. The Court doubts that the extra seven months have rendered memories of the
accident unreliable, especially when the New Mexico action was timely filed and

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Defendants argue that the statute “should not operate to provide relief from the
statute of limitations where a case is dismissed from one federal court and filed in
another.” (Doc. 15 at 2-3.) Nothing in the statute, however, imposes such a limitation,
and Defendants cite no legal authority supporting their argument.
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diligently litigated and the parties were therefore presumably taking steps to preserve

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evidence of the incident.

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IV. Conclusion

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For these reasons, the Court concludes that this action is timely by operation of
Arizona's savings statute.
IT IS ORDERED that Defendants' motion for judgment on the pleadings (Doc.
12) is DENIED.
Dated this 27th day of December, 2017.

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Douglas L. Rayes
United States District Judge

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