Dow v. Rheem Manufacturing Company et al

Filing 208

ORDER Directing Supplemental Briefing. (Plaintiff's supplemental briefing due by 6/9/2011, Defendants' supplemental briefing due by 6/16/2011) Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

LOWREN DOW,
Plaintiff,
Case Number 09-13697-BC
v.
RHEEM MANUFACTURING COMPANY,
ROBERTSHAW CONTROLS COMPANY,
INVENSYS CONTROL SYSTEMS,
Defendants,

LOWREN DOW,
Plaintiff,
Case Number 11-10647-BC
Honorable Thomas L. Ludington

v.
RHEEM MANUFACTURING COMPANY,
ROBERTSHAW CONTROLS COMPANY,
INVENSYS CONTROL SYSTEMS,
Defendants,
______________________________________ /

ORDERING DIRECTING SUPPLEMENTAL BRIEFING
On July 16, 2007, Plaintiff Lowren Dow (“Lowren”) was severely injured when the water
heater in his rental home exploded, causing burn injuries to over ninety-eight percent of his body.
After the accident, Lowren required hospitalization and was in an induced coma for a period of time.
On August 30, 2007, Lowren’s mother, Jackie Dow, filed a petition for appointment of guardian of
incapacitated individual with the Tuscola County Probate Court, stating that Lowren lacked
sufficient understanding or capacity to make or communicate informed decisions due to physical
illness or disability. On September 18, 2007, the Tuscola County Probate Court (“Probate Court”)

appointed Mrs. Dow to be Lowren’s full legal guardian and assume “care, custody, and control” of
Lowren, “together with all authority and responsibilities granted and imposed by law.” [09-13697
Dkt. #132 Ex. 1]. Mrs. Dow indicated in her annual report to the Probate Court on August 13, 2009
that the guardianship was still necessary and should be continued. [09-13697 Dkt. #132 Ex. 4]. On
February 2, 2010, Mrs. Dow petitioned the Probate Court to terminate the guardianship, stating that
Lowren had regained the mental and physical faculties required to “Care for his own affairs” and
“make all necessary legal decisions.” [09-13697 Dkt. #132 Ex. 5]. The Probate Court granted Mrs.
Dow’s petition on February 24, 2010. [09-13697 Dkt. #132 Ex. 6].
On September 17, 2009, Lowren filed a complaint alleging claims of “products liability,”
negligence, gross negligence, “willful disregard,” and breach of implied and expressed warranties
against Defendants Rheem Manufacturing Company (“Rheem”), Robertshaw Controls Company
(“Robertshaw”) and Invensys Control Systems (“Invensys Controls”). Lowren’s claims arise from
the explosion that occurred on July 16, 2007 [09-13697 Dkt. #1]. Lowren contends that his injuries
are a result of the faulty operation of a water heater that he alleges was designed, manufactured,
sold, and supplied by Rheem, and equipped with a control valve manufactured by Robertshaw.
Lowren alleges that the control valve had a defective pilot safety, which is intended to shut off gas
to the main burner of the unit if the pilot is extinguished. When Lowren attempted to light the pilot,
the residence exploded, causing the extensive burns over his body. Lowren seeks to recover $11
million.
I
On November 19, 2010, Robertshaw filed a motion to dismiss Lowren’s suit for lack of
capacity [09-13697 Dkt. #132]. Robertshaw contends that Lowren was expressly found to be

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“impaired to the extent of lacking sufficient understanding or capacity to make or communicate
informed decisions” such that he was “an incapacitated individual” by a Michigan Probate Court on
September 18, 2007. Federal Rule of Civil Procedure 17(c) requires a representative, next friend
or guardian ad litem file the suit on behalf of an incompetent person. Lowren’s legal incapacity was
not rescinded until February 24, 2010, but he filed this action in his own name on September 17,
2009. Rheem filed a joinder in Robertshaw’s motion [09-13697 Dkt. #135] on November 19, 2010.
Lowren filed a three-page response brief to Defendants’ motion to dismiss [09-13697 Dkt.
#149] on December 3, 2010. Lowren generally alleges that Defendants’ motion should be denied
because lack of capacity is an affirmative defense that was not advanced as required in their first
responsive pleading. Alternatively, Lowren submits, with little explanation and no citation to legal
authority, that correcting any procedural filing deficiency should relate back to the filing of the
original complaint. Lowren also states that he was declared incompetent because he was in an
induced coma while in the hospital and his only subsequent limitation was use of his hands. Lowren
did not give any attention to Rule 17 in his response brief. Robertshaw filed a reply [Dkt. #162] on
December 9, 2010.
Plaintiff did, however, file a second lawsuit based on the same factual allegations and
requesting relief for the same legal claims on February 16, 2011 [11-10647 Dkt. #1]. On its face, the
complaint was filed outside the applicable statute of limitations period unless a tolling provision
applies. Robertshaw and Rheem have filed a motion to dismiss Lowren’s complaint as time-barred
by the applicable statute of limitations [11-10647 Dkt. #10; Dkt. # 13]. Lowren responds [11-10647
Dkt. #15] that his claims should not be dismissed because he was traumatically insane at the time
his claim against Defendants accrued and the statute of limitations was tolled until February 24,

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2011 pursuant to Mich. Comp. Laws § 600.5851. Defendants filed a reply on April 20, 2011 [1110647 Dkt. #20; Dkt. #23].
II
Federal Rule of Civil Procedure 17(a)(3) provides:
The court may not dismiss an action for failure to prosecute in the name of the real
party in interest until, after an objection, a reasonable time has been allowed for the
real party in interest to ratify, join, or be substituted into the action. After ratification,
joinder, or substitution, the action proceeds as if it had been originally commenced
by the real party in interest.
The advisory committee’s notes to Rule 17 provide that “[m]odern decisions are inclined to
be lenient when an honest mistake has been made in choosing the party in whose name the action
is to be filed. . . . The provision should not be misunderstood or distorted. It is intended to prevent
forfeiture when determination of the proper party to sue is difficult or when an understandable
mistake has been made.” See also Ralph Gonnocci Revocable Living Trust v. Three M Tool &
Mach., Inc., No. 02-74796, 2006 WL 89867, *3 (E.D. Mich. Jan.13, 2006). In deciding whether to
allow ratification, joinder, or substitution under Rule 17, courts consider “whether there has been
an honest mistake as opposed to tactical maneuvering, unreasonable delay, or undue prejudice to the
non-moving party.” Tool-Plas Systems, Inc. v. Camaco, LLC, No. 09-12003, 2010 WL 1347686, *2
(E.D. Mich. March 31, 2010). The rule requires that the real party in interest act to pursue
ratification, joinder, or substitution within a “reasonable time.” Wiwa v. Royal Dutch Petroleum Co.,
Nos. 96 Civ. 8386, 01 Civ.1909, 02 Civ. 7618, 2009 WL 464946, at *10-11 (S.D.N.Y. Feb. 25,
2009). What constitutes a reasonable time is within the Court’s discretion. Suda v. Weiler Corp., 250
F.R.D. 437 (D.N.D.2008); see also 6A Wright, Miller & Kane, Federal Practice & Procedure § 1555
(3d ed. 2010). Courts consider the concept of reasonable time within the context of the specific facts

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of each case. See Wright, Miller & Kane at § 1555; see, e.g., Rodriguez v. Mustang Mfg. Co., No.
07-CV-13828, 2008 WL 2605471, *3 (E.D. Mich. June 27, 2008) (one month constitutes a
reasonable time under circumstances of products liability action following plaintiff’s bankruptcy).
It remains unclear as to whether Plaintiff has ratified the filing of the complaint on his behalf
in case number 09-13697 under Rule 17(a). Further explanation and briefing would assist the Court.
III
Accordingly, it is ORDERED that Plaintiff is DIRECTED to file supplemental briefing
addressing the issues presented above on or before June 9, 2011.
It is further ORDERED that Defendants are DIRECTED to file a response brief on or
before June 16, 2011.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: June 1, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on June 1, 2011.
s/Tracy A. Jacobs
TRACY A. JACOBS

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