Bouchard v. DHL Global Bus Svcs

Filing 69

RULING granting 27 Defendant DHL Express (USA), Inc.'s Motion for Reconsideration. Signed by Judge Charles S. Haight, Jr on January 6, 2012. (Wilson, D.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
LORRAINE BOUCHARD,
Plaintiff ,
v.

3:09-cv-01222 (CSH)

DHL EXPRESS (USA), INC.,
Defendant.

RULING ON MOTION TO RECONSIDER

HAIGHT, Senior District Judge:
In an opinion reported at 716 F.Supp.2d 202 (D. Conn.) (“Bouchard I”) [Doc. 26], familiarity
with which is assumed, the Court denied Defendant’s motion to dismiss Plaintiff’s two claims of
gender and age discrimination based upon the Connecticut Fair Employment Practices Act
(“CFEPA”) on the ground that those claims were time-barred. Those claims are asserted in
Plaintiff’s amended complaint, which also includes two federal claims charging violation of Title
VII and the ADEA, which Defendant does not seek to dismiss. Defendant now moves for
reconsideration of Bouchard I, contending that the CFEPA claims are time-barred under controlling
authority which the Court’s prior opinion overlooked and should consequently be dismissed.
Plaintiff’s CFEPA claims are presently stated in an amended complaint she filed on
September 9, 2009. The purpose of the amendment was to correct the name of the party defendant,
which had been incorrectly identified in the original complaint. In Bouchard I the Court held that
the amended pleading was timely under the state’s statute of limitations because, under Rule
15(c)(1), Fed.R.Civ.P., it related back to the filing of the original complaint. Defendant’s motion
for reconsideration is based upon the proposition that under Connecticut law, an action such as this

is not brought (that is to say, commenced for limitation purposes) until the complaint is served. It
follows from that proposition, Defendant continues, that if an original complaint is not served until
after the state statute of limitations has elapsed, the claims it asserts are time-barred and there is
nothing for a subsequent amended complaint to relate back to. That is so, even if the original
complaint was filed within the limitations period. In such circumstances, Defendant concludes, the
relation-back provisions of Federal Rule 15(c)(1) have no legitimate office to perform, and
Plaintiff’s CFEPA claims are time-barred because the original complaint asserting them was timebarred. I agree. Upon reconsideration, the ruling in Bouchard I is VACATED and Plaintiff’s
CFEPA claims are DISMISSED.
In the case at bar, there is no dispute that the CFEPA claims Plaintiff asserted in her original
complaint became time-barred by operation of the Connecticut limitations statute, as interpreted by
the Connecticut courts. See Bouuchard I, 716 F.Supp.2d at 206: “Such claims are considered
‘brought’ when service is made, and service is made when plaintiff files defendant’s executed
waiver with the court, which did not occur until October 5, 2009, nearly two months past the
expiration of the limitations period.” This case is governed by the Second Circuit’s opinion in
Converse v. General Motors Corp., 893 F.2d 513 (1990), which considered “whether Connecticut
state law governs the manner in which a federal diversity case arising under Connecticut law is to
be considered commenced for purposes of the state statute of limitations.” Id. at 513. The plaintiff
in Converse sued under the Connecticut Product Liability Act. The Second Circuit held that the Erie
doctrine1 “applies to the manner in which a diversity action is considered commenced for purposes
of state statutes of limitation,” with the result that “in the absence of a federal rule directly on point,

1

Erie R.R.Co. v. Tompkins, 304 U.S. 64 (1938)
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state service requirements which are an integral part of the state statute of limitations should control
in an action based on state law which is filed in federal court under diversity jurisdiction.” 893 F.2d
at 515 (citing and quoting Walker v. Armco Steel Corp., 446 U.S 740, 752-53 (1980)). The
Connecticut statute upon which the Converse plaintiff based his action provided that claims must
be “brought” within three years from the date of injury. While that statute, like the CFEPA in the
instant case, did not describe “the manner in which a claim is considered ‘brought,’” the Second
Circuit observed that “the Connecticut Supreme Court has long adhered to the rule that only actual
service upon the defendant will satisfy the state statutes of limitations.” Id. (citations omitted).
Applying that rule in Converse, the court of appeals affirmed the district court’s dismissal of the
action as time-barred.
Converse compels the same conclusion with respect to Bouchard’s CFEPA claims in the
original complaint, asserted on the basis of diversity jurisdiction, where service was not made until
after the limitations period had run. In Kotec v. Japanese Educational Institute of New York, 321
F.Supp.2d 428 (D.Conn. 2004), a case indistinguishable in this respect from that at bar, plaintiff
coupled Title VII claims with CFEPA claims, asserting the district court’s diversity jurisdiction over
the latter. Citing Converse, Judge Arterton dismissed the CFEPA claims as time-barred because
plaintiff did not effect service before the state statute of limitations ran out. The Court rejected
plaintiff’s contention that “the close legal connection between his title VII claim and his CFEPA
claim marshals in favor of permitting the commencement rule of Fed.R.Civ.P. 3—filing of
complaint—to govern,” a suggestion Judge Arterton held was not “a principled reason to depart
from the settled rule for diversity cases,” namely, applying state law defining commencement of
actions and limitations periods. The Second Circuit in Converse, citing Ragan v. Merchants

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Transfer & Warehouse Co., 337 U.S. 530, 533 (1949) and Walker, explicitly held that state law
“requiring service of process to commence an action, not Fed.R.Civ.P. 3, controlled in a diversity
action.” 893 F.2d at 515. See also Marchese v. Marchant Ladder, Inc., No. 3:11-cv-337 (PCD),
2011 WL 4433680 (D.Conn. Sept. 22, 2011) (where plaintiff in state product liability action did not
serve defendant with process prior to expiration of limitations period, action dismissed as timebarred) (citing Converse).
Both the court of appeals in Converse, 893 F.2d at 516, and the district court in Kotec, 321
F.Supp.2d at 431, conclude their analyses by quoting the Supreme Court’s reasoning in Walker, 446
U.S. at 753:
There is simply no reason why, in the absence of a controlling
federal rule, an action based on state law which concededly would
be barred in the state courts by the state statute of limitations
should proceed though litigation to judgment in a federal court
solely because of the fortuity that there is diversity of citizenship
between the litigants.
That is the disfavored result achieved by this Court’s ruling in Bouchard I, which I now conclude
cannot stand.
The rationale of Bouchard I, to which Plaintiff’s opposition to reconsideration continues to
cling, was that the timeliness of her action was preserved by the relation-back provisions of Rule
15(c)(1). Specifically, Bouchard I held that Plaintiff’s amended complaint related back to the filing
of her original complaint, before the Connecticut limitations period ran out. That order was
improvidently made, since it overlooked two salient principles of law.
First: Under Connecticut law Plaintiff’s action came into existence – was “brought,” to
use the statutory parlance – only upon service of the complaint, which occurred after the
limitations period had expired. Before service, the action has not been brought; it does not exist
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in the eyes of the law. That proposition is demonstrated by what I have said supra.
Second: An amended complaint can only relate back to an earlier complaint which exists
in the eyes of the law, or to put a finer point on it, was timely filed. In Bradley v. Dolan, No. 03cv-1616, 2007 WL 959160 (GBD) (S.D.N.Y. March 30, 2007), at *2, the district court observed
that under Rule 15 a complaint “may be amended to plead an untimely cause of action” if certain
circumstances are shown, but added “[h]owever, the relation back doctrine is inapplicable where,
as here, the original complaint itself is untimely. Thus, plaintiff’s proposed claim is similarly
barred by the statute of limitations.” (citing VVK Corp. v. Nat’l Football League, 244 F.3d 114,
128 (2d Cir. 2001) (emphasis added). In VVK, which Bradley cites for that proposition, the
Second Circuit begins its Rule 15 analysis by saying: “If a complaint is amended to include an
additional defendant after the statute of limitations has run, the amended complaint is not time
barred if it ‘relates back’ to a timely filed complaint,” and continues “[t]here are thus three
requirements that must be met before an amended complaint that names a new party can be
deemed to relate back to the original timely complaint.” 244 F.3d at 128 (emphases added). The
policy reason for requiring that the original complaint have been timely filed in order to receive a
relating-back amendment is apparent: were it otherwise, the salutary purposes of statutes of
limitation, those instruments of certainty and repose, would be subverted.
Plaintiff’s brief in opposition to reconsideration does not disagree in substance with these
principles. Rather, it denigrates Defendant’s motion for reconsideration as a disfavored effort to
supplement the record by asserting arguments that were always available to it. Reconsideration
motions are not legitimate if they are nothing more than a second bite at a fully briefed and
considered underlying ruling whose outcome disappointed one of the litigants. In this case,

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however, the Court’s Rule 15(c) relation-back analysis was in significant measure the product of
its own independent research. To support a motion for reconsideration, counsel are required to
point to material facts or governing cases which the Court may have overlooked; but counsel
may be given some latitude in those regards when the Court’s path to decision is in part one of
its own blazing. Judges appropriately conduct sua sponte research and deliberation; inert, pottedplant jurisprudence is not to be favored. But a trial judge must get it right, and a litigant’s
remedy for an improvident ruling is a motion for reconsideration.
In this case. Defendant’s motion for reconsideration is meritorious and is GRANTED.
The Court’s Ruling [Doc. 26] denying Defendant’s motion to dismiss Counts Two and Four of
the Amended Complaint is VACATED, and those Counts are DISMISSED with prejudice on the
ground that they are barred by the Connecticut statute of limitations.
It is SO ORDERED.
Dated: New Haven, Connecticut
January 6, 2012
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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