Miller v. Generac Power Systems, Inc. et al

Filing 55

ORDER converting 48 defendant's MOTION to Dismiss Claims as time-barred into MOTION for Summary Judgment. Any response due 6/21/2017. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CASE NO. 15-CV-13256
HON. GEORGE CARAM STEEH

GLENN RONNIE MILLER,
Plaintiff,
v.
GENERAC POWER SYSTEMS,
INC. and DOOSAN
INFRACORE CO., LTD.,
Defendants.
________________________/

ORDER CONVERTING DEFENDANT’S MOTION TO DISMISS CLAIMS
AS TIME-BARRED INTO MOTION FOR SUMMARY JUDGMENT

Now pending before the court is a motion to dismiss for lack of
personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2)
and motion to dismiss the claims as time-barred under the applicable
statute of limitations pursuant to Federal Rule of Civil Procedure 12(b)(6)
filed by defendant Doosan Infracore Co., Ltd. (“Doosan Korea”). The
court’s consideration of the statute of limitations defense turns on whether
the notice identifying Doosan Korea as a non-party at fault was timely. In
its motion, Doosan Korea argues its identity could have been discovered
within the 91-day rule under MCL 2.1129(K)(3)(c) because its identify as
the manufacturer of the component part in question was communicated to
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plaintiff and defendant Generac Power Systems, Inc. (“Generac”) beginning
in November 2015 through a series of emails, phone calls, and requests.
At the latest, Doosan Korea maintains that Generac knew that it was
potentially liable when former defendant Doosan Infracore America
Corporation produced an affidavit on May 5, 2016 establishing that Doosan
Korea designed the component part. In support of this argument, Doosan
Korea relies on the affidavit which it has attached as an exhibit. (Doc. 54,
Ex. B).
Generally, the statute of limitations defense is a matter for summary
judgment, but where the “allegations in the complaint affirmatively show
that the claim is time-barred,” dismissal under Rule 12(b)(6) may be
appropriate. Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir.
2012). In deciding a motion to dismiss under Rule 12(b)(6), the court is
limited to the allegations of the complaint and may not resort to matters
outside the pleadings. Rondigo LLC v. Township of Richmond, 641 F.3d
673, 680 (6th Cir. 2011). Here, Doosan Korea seeks to rely on matters
outside the pleadings to establish that plaintiff’s claims are time-barred.
Accordingly, the court must convert Doosan Korea’s motion to dismiss
based on the statute of limitations defense into one for summary judgment
pursuant to Federal Rule of Civil Procedure 12(d).
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Accordingly, IT IS ORDERED that plaintiff may respond to Doosan
Korea’s motion to dismiss based on the statute of limitations defense by
submitting any pertinent matters outside the pleadings for the court’s
review on or before June 21, 2017. Should Doosan Korea wish to submit
any additional matters outside the pleadings for the court’s review, it may
also submit any such materials on or before June 21, 2017. The hearing
on Doosan Korea’s motion (Doc. 48) remains June 29, 2017.
IT IS SO ORDERED.
Dated: June 13, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 13, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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