Mitchell v. Avery Dennison Corp et al

Filing 32

ORDER granting 20 MOTION to Dismiss. All negligence claims against Traf-Mark are dismissed without prejudice for now. Plaintiff may move to amend his complaint - highlighting and additions and deletions - by 30 June 2014. Signed by Judge D. P. Marshall Jr. on 6/9/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
SHELDON LEE MITCHELL
v.

PLAINTIFF

No. 3:14-cv-58-DPM

AVERY DENNISON CORP.; EPOPLEX,
a Division of Stonhard L.P.; and
TRAF-MARK INDUSTRIES LLC

DEFENDANTS

ORDER
1. Taking all the facts alleged in the complaint as true, Mitchell’s claim
against Traf-Mark is time-barred. Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir.
2010). Arkansas law provides a four-year statute of repose for personal-injury
claims arising from improvements to real property. ARK. CODE ANN. § 16-56112(b)(1). Mitchell sustained serious injuries in March 2011 when a pavement
marker detached from Interstate 40, came through a windshield, and hit him
in the forehead. № 1 at ¶¶ 11, 14-16. Mitchell claims that Traf-Mark was
negligent in installing the pavement marker and supervising its employees.
№ 1 at ¶¶ 56-57. Mitchell alleges that Traf-Mark installed the pavement
marker in May 2003. № 1 at ¶¶ 10 & 53. He filed this case almost eleven years
later. On the face of the complaint, Mitchell’s claim against Traf-Mark is too

late under the statute of repose. Rogers v. Mallory, 328 Ark. 116, 120, 941
S.W.2d 421, 423 (1997); Carlson v. Kelso Drafting & Design Inc., 2010 Ark. App.
205, at *5, 374 S.W.3d 726, 729 (2010).
2. Two other points. First, Traf-Mark preserved this defense in its
answer. FED. R. CIV. P. 12(h)(2); № 3 at ¶ 31. Elaborating on it with a prompt
and separate motion to dismiss was good practice, not an untoward early run
at summary judgment. Second, Mitchell makes an embedded request to
amend, but has not explained particulars. It seems unlikely, given the
installation date, that Mitchell can plead his way around the statute of repose.
But

he

may

move

to

amend,

with

an

attached

proposed

complaint—highlighting any additions and deletions—by 30 June 2014. All
his negligence claims against Traf-Mark are dismissed without prejudice for
now; if he does not propose any amended complaint, or if the Court does not
approve one he does propose, then the dismissal will ripen into one with
prejudice. Another Order will issue in either event.
Traf-Mark’s motion to dismiss, № 20, is granted.
So Ordered.
__________________________
D.P. Marshall Jr.
United States District Judge
9 June 2014
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