Kellar v. MH Equipment Corporation et al

Filing 9

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 4/4/2017 denying 6 Defendants' Motion to Dismiss. cc: Counsel(CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:17-CV-00005-GNS-HBB
JOSEPH KELLAR

PLAINTIFF

v.
MH EQUIPMENT CORPORATION, and
MH EQUIPMENT OHIO, LLC

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendants’ Motion to Dismiss (DN 6). For the
following reasons, the motion is DENIED.
I.

BACKGROUND

Plaintiff Joseph Kellar (“Plaintiff”) was an employee of Sun Products Corporation
located in Warren County, Kentucky. (Notice Removal Ex. 2, ¶ 1, DN 1-2 [hereinafter Compl.]).
Plaintiff alleges that he was injured while driving a forklift at Sun Products Corporation on
December 17, 2015. (Compl ¶ 2). Plaintiff brought suit in Warren Circuit Court on December
19, 2016, against the maintenance vendors hired by Sun Products Corporation, Defendants MH
Equipment Corporation and MH Equipment Ohio, LLC, (collectively “Defendants”). (Compl. ¶
11). Defendants subsequently removed the case to this Court.

(Notice Removal, DN 1).

Defendants seek to dismiss the case arguing that it is barred by the one-year statute of limitations
contained in KRS 413.140. (Defs.’ Mot. Dismiss, DN 6). This matter is ripe for adjudication.
II.

JURISDICTION

The Court has subject matter jurisdiction over this action under 28 U.S.C. § 1332 as there
is complete diversity between the parties and the amount in controversy exceeds the sum of
$75,000.00.

III.

STANDARD OF REVIEW

A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief,” and is subject to dismissal if it “fail[s] to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 8(a)(2); Fed. R. Civ. P 12(b)(6). When considering a
motion to dismiss, courts must presume all factual allegations in the complaint to be true and
make all reasonable inferences in favor of the non-moving party. Total Benefits Planning
Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing
Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983)). To survive a motion to
dismiss under Rule 12(b)(6), the plaintiff must allege “enough facts to state a claim to relief that
is plausible on its face.” Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep’t of Educ., 615
F.3d 622, 627 (6th Cir. 2010) (internal quotation marks omitted) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim becomes plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556).
IV.

DISCUSSION

Defendants assert that this matter is time barred due to the one-year statute of limitations
for personal injury claims because Plaintiff’s forklift accident occurred on December 17, 2015,
and the Complaint was not filed until December 19, 2016. (Defs.’ Mot. Dismiss 1). Plaintiff
agrees that the one-year statute of limitations embodied in KRS 413.140 applies, yet argues that
because December 17, 2016, fell on a Saturday, the statute of limitations was tolled until the
following Monday, December 19, 2016. (Pl.’s Resp. Defs.’ Mot. Dismiss 1-3, DN 7).

2

“In computing any period of time prescribed or allowed . . . by any applicable statute or
regulation, the day of the act, event or default after which the designated period of time begins to
run is not to be included.”

KRS 446.030(1)(a).

Plaintiff’s forklift accident occurred on

December 17, 2015; therefore, it would appear that the statute of limitations for Plaintiff’s
accident expired on December 17, 2016. See Derossett v. Burgher, 555 S.W.2d 579, 579 (Ky.
1977). In analyzing this issue, the Court must further consider that December 17, 2016, fell on a
Saturday. In this regard, KRS 446.030(1)(a) provides “the last day of the period so computed is
to be included, unless it is a Saturday [or] a Sunday . . . in which event the period runs until the
end of the next day which is not one (1) of the days just mentioned.”1 KRS 446.030(1)(a)
(emphasis added). Accordingly, the Complaint was timely filed on Monday, December 19,
2016.
In their reply, Defendants argue that because 2016 was a leap year, to be timely the
Complaint should have been filed on or before Friday, December 16, 2016, which is 365 days
from the date on which the statute of limitations clock began. (Defs.’ Reply Pl.’s Resp. 1-2, DN
8 [hereinafter Defs.’ Reply]). Under Kentucky law, however, a leap day is inclusive in a
calendar year for statute of limitations purposes. KRS 446.010(49) defines a year as a calendar
year, and Kentucky’s highest court has held that a calendar year encompasses a leap year. Rice
v. Blair, 166 S.W. 180, 180 (Ky. 1914) (“As the word ‘year’ means a calendar year, it is
immaterial that the year 1912 was leap year.”). This is consistent with the law of other states that
define a year as a calendar year. See Merriweather v. City of Memphis, 107 F.3d 396, 399 (6th

1

Kentucky Civil Rule 6.01 provides the same. See CR 6.01 (“In computing any period of time
prescribed or allowed by . . . any applicable statute, the day of the act, [or] event . . . after which
the designated period of time begins to run is not to be included. The last day of the period so
computed is to be included, unless it is a Saturday [or] a Sunday . . . , in which event the period
runs until the end of the next day which is not a Saturday or a Sunday . . . .”).
3

Cir. 1997) (noting that Tennessee law defines a year in terms of a calendar year, rather than a
number of days, and “Tennessee’s use of a calendar year reaches the same result as a state law
relying on a day count that allows an additional day in a leap year.” (citing Tenn. Code Ann. §
1-3-105)); LaRosa v. Cove Haven, Inc., 840 F. Supp. 319, 321 (M.D. Pa. 1993) (holding that the
use of the words “calendar year” in a Pennsylvania statute clearly demonstrates the legislature
meant that statutes of limitation run from anniversary date to anniversary date without regard to
leap years); Kowalski v. Hereford L’Oasis, 79 P.3d 319, 321 (Or. Ct. App. 2003) (“[T]he word
‘year’ as used in a statute of limitations, refers to a calendar year, not a 365 day period” (citing
Neff v. Jackson Cty., 187 67 P.3d 977 (Or. Ct. App. 2003))); see also Bailey v. Faux, 704 F.
Supp. 1051, 1053 (D. Utah 1989) (“The calendar method is useful because it encompasses
months of different length and leap years and leaves little room for confusion over when a period
ends.”).
Defendants rely upon two Kentucky cases that they claim support their position that a
“year” only includes 365 days:

Erwin v. Benton, 87 S.W. 291 (Ky. 1905), and Geneva

Cooperage Company v. Brown, 98 S.W. 279 (Ky. 1906). However, these cases do not support
Defendants’ argument. Erwin does note that a year means 365 calendar days, but does not
include any discussion pertaining to how a leap year affects this calculation. Erwin, 87 S.W. at
294.

Moreover, Defendants reliance on Geneva is misplaced.

In Geneva, the plaintiff

commenced his action on September 19, 1904, for injuries received September 19, 1903, which
was held to be outside the statute of limitations. Geneva Cooperage Co., 98 S.W. at 279. The
court counted the day of the injury as the accrual date for the statute of limitations and held that
the plaintiff’s action was time barred. Id. “[T]he cause of action accrued immediately upon the
infliction of the injury, and the statute of limitation commenced to run on September 19, 1903,

4

and, in computing the time within which the action must be commenced, that day must be
included.”2 Id. at 279. Under present law, the date of occurrence is not to be included in the
calculation. See KRS 446.030(1)(a). Geneva dealt with a former statute, which has since been
amended and therefore does not control.3
Defendants also rely on Cuco v. Federal Medical Center-Lexington, No. 05-CV-232KSF, 2006 WL 1635668 (E.D. Ky. June 9, 2006). In Cuco, the district court calculated the
amount of time that the plaintiff’s claim would be equitably tolled by explaining that the oneyear statute of limitations “reaches back” 365 days from the date the complaint was filed and
then “reaches back” another 115 days that the claim was tolled while the plaintiff was seeking
her administrative remedies. Id. at *26. The Court added in a footnote that the calculation of the
additional days that were “tacked on” to the statute of limitations included a leap day. Id. at n.8.
Defendants contends that Cuco stands “for the proposition that the applicable statute of
limitation is calculated by counting backwards from the actual date of filing and takes into

2

In its computations, the court expressly considered a calendar year to encompass a leap year.
Id. at 280 (“Ordinarily there would be included in this period 365 days, but as 1904 was a leap
year, one day was added. So that, giving the statute the most favorable construction, and
extending the meaning of ‘calendar year’ to its extreme limit, the action is yet barred.”).
3
The holding in Geneva could be construed as being contrary to the Court’s conclusion that
Plaintiff had until Monday to file his claim. Again, Geneva is based on Section 454 of the
Kentucky Statutes, which was later recodified as KRS 446.030(2). In 1970, the Kentucky
General Assembly amended KRS 446.030(1) to specifically address the legal effect of the last
day of a statute of limitations falling on a Saturday, Sunday, legal holiday, or day which a public
office is closed. See Act of Mar. 30, 1970, 1970 Ky. Acts ch. 98, § 1. Under the present version
of KRS 446.030(1)(a), it provides:
The last day of the period so computed is to be included, unless it is a Saturday, a
Sunday, a legal holiday, or a day on which the public office in which a document
is required to be filed is actually and legally closed, in which event the period runs
until the end of the next day which is not one (1) of the days just mentioned.
KRS 446.030(1)(a).
5

account the extra day afforded by a ‘Leap Year.’” (Defs.’ Reply 1). According to Defendants, if
the Court “counts back” 365 days from when the Complaint was filed, the matter is not timely.
Defendants’ reliance on Cuco is unconvincing. First, Cuco discusses the “reaches back”
method, which the Defendants dub the “Cuco Methodology,” in the context of equitable tolling.
Id. at *26. The court accounted for the leap year in the extra days that were “tacked on” and did
not discuss whether the extra day would have been counted if the statute of limitations
computation involved a leap year. Id. More significantly, although a Kentucky statute of
limitations is applied, Cuco deals with federal claims, while the present case involves purely
Kentucky state law claims.

Defendants cite other cases that have used the “Cuco

Id.

Methodology” when calculating the statute of limitations; however, none of the cited cases apply
this method when calculating the statute of limitations for a Kentucky state law claim. (Def.’s
Reply 2). Thus, the Court does not find some courts’ use of the “Cuco Methodology” sufficient
to override Kentucky’s highest court’s express statement that a calendar year is inclusive of a
leap year. See Rice, 166 S.W. at 180.
Accordingly, the Court holds that under Kentucky law, a “calendar year” is inclusive of a
leap year. See KRS 446.010(49); Rice, 166 S.W. at 180. Thus, the Complaint was timely filed
on December 19, 2016, and Defendants’ motion to dismiss is denied.
V.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ Motion to
Dismiss (DN 6) is DENIED.
April 4, 2017

cc:

Greg N. Stivers, Judge
United States District Court

counsel of record
6