Divine v. Genuine Parts Company

Filing 8

MEMORANDUM OPINION AND ORDER: Pla SHALL RESPOND via supplemental response on or before Tuesday, December 15, 2015 to the 3 MOTION to Dismiss for failure to state a claim. In his response, Pla shall provide an explanation, if one exists, for why he was unable to file his response in a timely fashion. Signed by Judge Karen K. Caldwell on December 10, 2015. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
STEVE DIVINE,

CIVIL ACTION NO. 5:15-267-KKC

Plaintiff,
V.

MEMORANDUM OPINION AND
ORDER

GENUINE PARTS COMPANY,
Defendant.
This matter is before the Court on Defendant Genuine Parts Company’s Motion to
Dismiss. (DE 43). For the reasons set forth below the Court will reserve any decision on
Defendant’s motion until Plaintiff has had an opportunity to file a supplemental response.
On September 9, 2015, Defendant removed this negligence action from the Boyle
County Circuit Court (the “State Court”). (DE 1.) Plaintiff’s State Court Complaint alleges
that Defendant negligently caused an estimated $112,120.60 in damages to his driveway.
(DE 1-1 at 6.) According to Plaintiff, approximately seven years ago Defendant began
delivering office supplies to Plaintiff’s home. (DE 1-1 at 5.) Plaintiff represents that
Defendant’s employee negligently damaged his driveway by making such deliveries using a
commercial vehicle that exceeded the maximum permissible weight for a residential
concrete driveway. (DE 1-1 at 6.) The “severe damage to the driveway” was only discovered
“in the past year, more or less.” (DE 1-1 at 5–6.)
Defendant filed the instant motion on September 9, 2015, seeking dismissal based
on Kentucky’s five-year statute of limitations. (DE 3 at 4.) Plaintiff’s response, filed October
27, 2015, does not dispute the applicable statute of limitations. (DE 6.) Instead, Plaintiff
claims that his driveway’s damages were not discovered, or discoverable, until less than five
years ago. (DE 6 at 1.) In reply, Defendant alleges first, that Plaintiff’s response should be

stricken as untimely and second, renews its argument that the discovery rule cannot be
applied to toll the statute of limitations in this action under state law. (DE 7 at 2–4.)
Consequently, this Court perceives only two questions presented at this time: (1) does
Plaintiff’s tardiness in responding to Defendant’s motion provide grounds for dismissal, and
(2) would dismissal nonetheless be warranted because the discovery rule is inapplicable to
this action?
This Court’s Local Rule 7.1 provides that:
A party opposing a motion must file a response memorandum
within twenty-one (21) days of service of the motion. Failure to
timely respond to a motion may be grounds for granting the
motion.
LR 7.1(c). Disregarding this rule, Plaintiff did not respond until more than twice the
permitted twenty-one days had elapsed. Plaintiff made no attempt to justify his late filing,
nor has he petitioned this Court to excuse this deficiency. Consequently, it is within this
Court’s discretion to grant Defendant’s motion solely on this basis. However, given that
Plaintiff’s belated filing was addressed only by Defendant’s reply, this Court will provide
Plaintiff an opportunity to explain his actions. If Plaintiff cannot provide good cause to deny
Defendant’s motion, this Court will exercise its discretion to dispense with this action.
Accordingly, IT IS ORDERED that Plaintiff SHALL RESPOND via supplemental
response on or before Tuesday, December 15, 2015. In his response Plaintiff shall provide
an explanation, if one exists, for why he was unable to file his response in a timely fashion.
Dated December 10, 2015.

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