Garrett v. Prime Transport Inc et al

Filing 60

OPINION AND ORDER granting 51 Motion for Judgment on the Pleadings and dismissing the complaint with prejudice as to Prime Transport. Signed by Judge Robert L Miller, Jr on 2/8/2012. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JULIE E. GARRETT,
Plaintiff
vs.
PRIME TRANSPORT, INC., et al.,
Defendants

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Case No. 3:10-CV-297 RM

OPINION AND ORDER
This case is plaintiff Julie Garrett’s fourth attempt to bring an action against
Dalbo Holdings, Inc., Dalbo, Inc., Kyle Story, and Prime Transport, Inc., to recover
damages for personal injuries sustained in a vehicular accident in Texas in
January 2007. Ms. Garrett filed similiar suits in the Western District of
Oklahoma, the Northern District of Texas, and the Eastern District of Arkansas.
The Oklahoma case was dismissed without prejudice for lack of personal
jurisdiction. Garrett v. Prime Transport, Inc., No. 5:08-CV-1138-R, slip op (W.D.
Okl. July 23, 2009). The Texas case was barred by Texas’ two-year statute of
limitations and was dismissed under Fed. R. Civ. P. 12(b)(6), Garrett v. Prime
Transport, Inc., 2010 WL 1929616 (N.D. Tex. May 11, 2010), and the Arkansas
case was dismissed for lack of personal jurisdiction and insufficient service of
process under Fed. R. Civ. P. 12(b)(2) and (5), Garrett v. Prime Transport, Inc.,
2011 WL 1627956 (E.D. Ark. Apri 29, 2011). Dalbo Holdings, Inc., Dalbo, Inc.,
and Kyle Story were dismissed from this suit in July 2011, leaving Prime

Transport as the only remaining defendant. Prime Transport’s unopposed motion
for judgment on the pleadings under FED. R. CIV. P. 12(c) pends before the court.
For the following reasons, the court grants the motion.
Prime Transport contends that Indiana’s two-year statute of limitations, IND.
CODE § 34-11-2-4, bars Ms. Garrett’s claims against it, and that the Journey’s
Account Statute, IND. CODE § 34-11-8-1, isn’t applicable because the earlier
dismissals were the result of negligence in the prosecution of those cases and
because this case can’t be considered a “continuation” of the original action in
Oklahoma.1 Ms. Garrett was granted an extension of time to respond to Prime
Transport’s Rule 12(c) motion, but never filed a response.
“Although the statute of limitations is an affirmative defense, [Ms. Garrett],
as the plaintiff, has the burden of establishing an exception to the statute.” McCall
ex rel. Estate of Bess v. U.S., 310 F.3d 984, 987 (7th Cir. 2002). The complaint
against Prime Transport was filed more than three and a half years after the

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Indiana’s Journey Accounts Statute, IND. CODE § 34-11-8-1 provides as follows:
(a) This section applies if a plaintiff commences an action and:
(1) the plaintiff fails in the action from any cause except
negligence in the prosecution of the action; . . .
(b) If subsection (a) applies, a new action may be brought not later than the later
of:
(1) three (3) years after the date of the determination under
subsection (a); or
(2) the last date an action could have been commenced under the
statute of limitations governing the original action;
and be considered a continuation of the original action commenced by the
plaintiff.
The statute allows continuation of actions through refiling when a plaintiff fails to obtain a
decision on the merits for some reason other than plaintiff’s own neglect and the statute of
limitations expires while the suit is pending. See Price v. Wyeth Holdings Corp., 505 F.3d 624
(Ind. 2007); Basham v. Penick, 849 N.E.2d 706 (Ind. App. 2006).

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accident, and is barred by Indiana’s two-year statute of limitation, unless Mr.
Garrett can assert viable grounds of tolling the statute. She hasn’t done that or
taken any other substantive action in this case since April 14, 2011.2 Dismissal
is therefore appropriate under Fed. R. Civ. P. 12(c).3
Accordingly, Prime Transport’s motion for judgment on the pleadings [Doc.
No. 51] is GRANTED, and the complaint is DISMISSED with prejudice as to Prime
Transport.
SO ORDERED.
ENTERED:

February 8, 2012

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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The only activity generated on the plaintiffs’ side of the case since April 2011 was a
September 27 motion for extension of time to file a response to Prime Transport’s Rule 12(c)
motion [Doc. No. 55], and an October 2011 motion to withdraw by local counsel [Doc. No. 57].
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Prime Transport made a cursory request for attorney fees in its memorandum in
support of the motion for judgment on the pleadings, but provided no authority for awarding
fees in this case. The court therefore declines to make such an award.

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