Leal v. TSA Stores Inc et al

Filing 92

OPINION AND ORDER GRANTING without prejudice 85 MOTION to Dismiss filed by Go Configure Inc. Signed by Judge William C Lee on 12/17/2014. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MICHELLE LEAL, et al.
Plaintiff,
v.
TSA STORES, INC. d/b/a THE SPORTS
AUTHORITY, URBAN EXPRESS
ASSEMBLY, LLC, EAST COAST
SUPPLY, INC., YONG QI BICYCLE
INDUSTRIAL CO., LTD, GO
CONFIGURE, INC., GUHLAM
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

CASE No.: 2:13 CV 318

OPINION AND ORDER
Before the Court is Defendant, Go Configure, Inc.’s “Motion to Dismiss” filed on
October 22, 2014. Plaintiff did not file a response. In its Motion, Go Configure asserts that
Plaintiff’s claim in her Second Amended Complaint is time-barred.
In anticipation of an upcoming conference with Magistrate Judge Cherry, the undersigned
held a conference on December 15, 2014 to discuss the status of this unopposed motion to
dismiss as well as the other motions pending in the case. At that conference, Plaintiff’s counsel
represented that he had no objection to the Court’s granting of the motion to dismiss so long as
the dismissal was without prejudice. Go Configure’s counsel sought a dismissal with prejudice.
Mindful of the standards of review for motions to dismiss, the Court concludes the
Motion to Dismiss is well-taken. Even assuming that the facts as plead in Plaintiff’s Second
Amended Complaint are true, her claims against Go Configure are barred by the applicable two
year statute of limitations. And, because Go Configure is a wholly new defendant in this action,

1

the allegations against Go Configure do not “relate back” to the date the original Complaint was
filed so as to permit the claim to fall within the applicable statute of limitations. Accordingly,
Go Configure, Inc.’s Motion to Dismiss [DE 85] is GRANTED without prejudice.1

Entered: This 17th day of December, 2014.
s/ William C. Lee
United States District Court

1

Unless otherwise stated, dismissals pursuant to Rule 12(b)(6) are deemed to be with prejudice. See
Fed.R.Civ.P. 41(b); Harmon v. Gordon, 712 F.3d 1044, 1054 -1055 (7th Cir. 2013). However, the
Seventh Circuit disfavors granting dismissal under Rule 12(b)(6) on grounds of untimeliness without
leaving open the possibility for the Plaintiff to amend if other facts would come to light that cure the
timeliness issue. Smith v. Union Pacific R. Co. 474 Fed.Appx. 478, 481, 2012 WL 1130279, 3 (7th Cir.
2012).

2