Zywicki v. Sai Nath, LLC

Filing 38

MEMORANDUM OPINION AND ORDER by Judge David J. Hale on 3/24/2017 - Defendant's motion for summary judgment (D.N. 32) is GRANTED. This action is DISMISSED and STRICKEN from the Court's docket. A separate judgment will be entered this date. cc: Counsel(DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
JOHN ZYWICKI,

Plaintiff,

v.

Civil Action No. 3:15-cv-435-DJH

SAI NATH, LLC,

Defendant.
* * * * *
MEMORANDUM OPINION AND ORDER

On November 26, 2013, Plaintiff John Zywicki was staying at a Sleep Inn and Suites
when he slipped and fell in the shower. (Docket No. 32-1, PageID # 180) Defendant Sai Nath,
LLC owns the Sleep Inn and Suites. (Id.; D.N. 8, PageID # 36) Zywicki alleges that his injuries
were caused by Sai Nath’s negligence in maintaining the property. (D.N. 1-2, PageID # 5–7)
Zywicki originally filed suit on November 26, 2014 against only “Sleep Inn and Suites.”
(D.N. 36, PageID # 250) Then, on April 24, 2015, Zywicki filed an amended complaint naming
Sai Nath, LLC as the defendant. (D.N. 32-1, PageID # 183) Sai Nath filed a motion for
summary judgment, arguing that the amended complaint was not timely filed. (D.N. 32-1,
PageID # 182–90) Zywicki contends that the amended complaint relates back to the original
complaint, which was filed before the expiration of the limitations period. (D.N. 36, PageID #
250–51) After careful consideration, the Court concludes that the amended complaint does not
relate back to the original complaint and the motion for summary judgment will be granted.
I.

BACKGROUND
Plaintiff John Zywicki, a resident of Wisconsin, checked in to the Sleep Inn and Suites in

Shepherdsville, Kentucky on November 25, 2013. (D.N. 32-1, PageID # 180; D.N. 36, PageID #
248) The next day, on the morning of November 26, 2013, Zywicki took a shower in his hotel

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room. (D.N. 32-1, PageID #181) While in the shower, Zywicki “stepped on the 4-inch shower
drain cover with his left foot, lost his balance, and fell in the shower.” (Id.) According to
Zywicki, he fell because the drain cover was loose and improperly attached. (D.N. 1-2, PageID
# 6) Zywicki claims that he injured his knees, lower back, upper back, neck, and toe because of
the fall. (Id.) Zywicki also claims that he has headaches as a result of the fall. (Id.)
On November 26, 2014, Zywicki filed suit against Sleep Inn and Suites and sent the
summons to 130 Spring Pointe Drive, Shepherdsville, Kentucky, 40165, “the address listed on
the incident report provided to the Plaintiff.” (D.N. 36, PageID # 250) But the hotel property is
owned and operated by Sai Nath, LLC. (D.N. 1-2, PageID # 6; D.N. 9, PageID # 36) Zywicki
filed an amended complaint on April 24, 2015, naming Sai Nath, LLC as the defendant, (D.N.
32-1, PageID # 183) alleging that it was negligent in maintaining the premises of the hotel.
(D.N. 1-2, PageID # 6)

In response, Sai Nath filed a motion for summary judgment, arguing

that the plaintiff’s claims are barred by the statute of limitations, and alternatively, that it is
entitled to summary judgment because a shower is an open and obvious condition. (D.N. 32-1,
PageID # 182–90) The defendant also contends that Zywicki waived his damages claims by
failing to provide itemized damages claims during discovery. (Id., PageID # 190–91)
Zywicki responds that the original complaint was filed in a timely fashion and the
amended complaint relates back to the initial filing. (D.N. 36, PageID # 250–51) Additionally,
the plaintiff argues that the defendant is not entitled to summary judgment because Sai Nath did
not keep the premises in a “reasonably safe” condition. (Id. PageID # 251–53) Finally, Zywicki
states that he provided Sai Nath with a total damages claim at the settlement conference and will
provide an itemized list immediately, but contends that the defendant has not been prejudiced by
this failure and thus summary judgment is inappropriate. (Id., PageID # 253–54)

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II.

DISCUSSION
In Kentucky, a personal-injury claim must “commence[] within one (1) year after the

cause of action accrued.” Ky Rev. Stat. § 413.140(1)(a). The parties agree that Zywicki’s cause
of action accrued on November 26, 2013, when he fell in the shower. (D.N. 1-2, PageID # 6;
D.N. 32-1, PageID # 183) Zywicki first sued Sleep Inn and Suites on November 26, 2014, but
did not name Sai Nath as a defendant. (D.N. 36, PageID # 250) Zywicki filed the instant action
against Sai Nath on April 24, 2015, well past the limitations period. (Id., PageID # 5–6; D.N.
32-1, PageID # 183)
Zywicki seeks to avoid the statute of limitations bar to his claims against Sai Nath by
arguing that his claims against Sai Nath relate back to the original November 26, 2014
complaint. (D.N. 36, PageID # 250) “The question of whether an amendment to a complaint
relates back to the date of the original complaint is a question of federal procedure not controlled
by state law even in a diversity case.” Bishop v. Atmos Energy Corp., 161 F.R.D. 339, 341
(W.D. Ky. 1995) (citing Simmons v. South Central Skyworker’s Inc., 936 F.2d 268, 270 (6th Cir.
1991)). Rule 15(c) provides that an amendment relates back when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out--or attempted to be set out--in the original
pleading; or
(C) the amendment changes the party or the naming of the party against whom a
claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and complaint, the party to
be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity.
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Fed. R. Civ. P. 15(c)(1). The Sixth Circuit has limited relation back under Rule 15(c) to
mistakes regarding a party’s identity and has made clear that it is not to be used as a tool to add a
new party. See Smith v. City of Akron, 476 F. App’x 67, 69 (6th Cir. 2012) (citing Cox v.
Treadway, 75 F.3d 230, 240 (6th Cir. 1996); Asher v. Unarco Material Handling, Inc., 596 F.3d
313, 318 (6th Cir. 2010) (citing In re Kent Holland Die Casting & Plating, Inc., 928 F.2d 1448,
1449 (6th Cir. 1991); Smart v. Ellis Trucking Co., Inc., 580 F.2d 215, 218 (6th Cir. 1978)).
In Smith v. City of Akron, the plaintiff filed suit against the City of Akron, the Akron
Police Department, and “John and Jane Doe Nos. 1-10” on the last day of the limitations period,
alleging excessive force during an arrest. 476 F. App’x at 68. After the statute of limitations had
expired, the plaintiff amended the complaint to add two police officers as defendants. Id. The
Sixth Circuit held that the plaintiff’s claims against the officers did not relate back to the original
complaint under Rule 15. Id. at 69. The Sixth Circuit reasoned that the plaintiff did not satisfy
Rule 15’s “mistaken identity” requirement because he “did not make a mistake about which
defendant to sue; he simply did not know whom to sue or opted not to find out within the
limitations period.” Id. The Sixth Circuit explained that
Because he waited until the last day of the two-year limitations period to file his
complaint, that left no time to discover the identity of his arresting officers within
the relevant time. Even after Krupski, Rule 15(c) offers no remedy for this
problem. The Rule allows relation back for the mistaken identification of
defendants, not for defendants to be named later through “John Doe,” “Unknown
Defendants” or other missing appellations. Our approach is consistent with the
holdings of every other circuit on this issue.
Id.
Zywicki argues that the requirements of Rule 15(c) are met here because the claims arose
out of the same conduct and the complaint was sent to the hotel’s address within the statutory
period. (D.N. 36, PageID # 250) In trying to determine the owner of the property, counsel for
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Zywicki claims that he made diligent efforts to determine the proper defendant, including
making “numerous calls” to Sleep Inn and Suites and searching the Kentucky Secretary of
State’s records, the County’s Property Value Administrator website, the property’s deed, and the
hotel’s elevator inspection certificate. (Id., PageID # 250–51)
Notwithstanding these efforts, the shortcomings found in Smith v. City of Akron are also
found here. As in Smith, Zywicki “did not make a mistake about the identity of the parties he
intended to sue; he did not know who they were and apparently did not find out within the . . .
limitations period.” 476 F. App’x at 69. The efforts of Zywicki’s counsel indicate that the
plaintiff intended to sue the owner and operator of the hotel, but he had difficulty finding that
information and failed to do so during the statutory period. See id. Like the plaintiff in Smith,
Zywicki had a “missing appellation” and filed his complaint on the last day of the limitations
period, which “left no time to discover the identity of [the hotel’s owner] within the relevant
time.” Id. As the Sixth Circuit has explained, Rule 15(c) offers no remedy for this problem. Id.
The Court finds that Zywicki’s amended complaint, which names Sai Nath as a defendant, does
not relate back to the original complaint and thus is barred by the statute of limitations.
Therefore, the amended complaint was not timely filed. See Ky Rev. Stat. § 413.140(1)(a).

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III.

CONCLUSION
For the reasons explained above, and the Court being otherwise sufficient advised it is

hereby
ORDERED that the defendant’s motion for summary judgment (D.N. 32) is
GRANTED. This action is DISMISSED and STRICKEN from the Court’s docket. A separate
judgment will be entered this date.

March 24, 2017

David J. Hale, Judge
United States District Court

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