Miller v. Generac Power Systems, Inc. et al
ORDER granting 48 defendant Doosan Infracore Co. Ltd.'s Motion for Summary Judgment of time-barred claims. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
GLENN RONNIE MILLER,
Case No. 15-CV-13256
HON. GEORGE CARAM STEEH
GENERAC POWER SYSTEMS,
INC. and DOOSAN INFRACORE
ORDER GRANTING DEFENDANT DOOSAN
INFRACORE CO. LTD.’S MOTION FOR SUMMARY
JUDGMENT OF TIME-BARRED CLAIMS (DOC. 48)
This is a products liability action arising out of a generator that
backfired while plaintiff Glenn Miller was attempting to repair it, resulting in
serious injury. Plaintiff alleges that a faulty service manual is to blame.
Now before the court is defendant Doosan Infracore Co. Ltd.’s (“Doosan
Korea”) motion to dismiss the claims as time-barred and for lack of
personal jurisdiction. Because Doosan Korea seeks to rely on matters
outside the pleadings to establish its statute of limitations defense, the
court converted the motion to dismiss into a motion for summary judgment
and allowed plaintiff to file matters outside the pleadings for the court’s
review (Doc. 55). Despite this opportunity, plaintiff has failed to do so. For
the reasons set forth below, the court shall grant Doosan Korea’s motion
for summary judgment of time-barred claims, and shall not reach the
personal jurisdiction issue.
I. Factual Background
Plaintiff Glenn Ronnie Miller is a Michigan resident who owns and
operates a company that sells, rents, and services generators. (Doc. 48 at
4). Defendant Doosan Korea is a Korean company with its principle place
of business in Seoul, Republic of Korea. (Doc. 48 at 4). Doosan Korea
negotiates and sells engines to Generac Power Systems Inc. in Korea and
Wisconsin. (Doc. 48 at 5). Generac generators are produced using engines
manufactured by Doosan Korea.
On October 12, 2012, plaintiff was servicing a generator in Southfield,
Michigan (Doc. 48 at 4). Defendant Doosan Korea designed and
manufactured the engine and service manuals for the subject generator.
(Doc. 53 at 3). Plaintiff alleges that improper maintenance because of a
defective service manual caused the engine to kickback during service. Id.
The engine allegedly backfired, causing the plaintiff to be knocked off the
top of the generator to the ground below sustaining serious injury. (Doc. 48
Plaintiff originally sued Generac and Doosan Infracore America
Corporation (“DIA”). Plaintiff alleged that DIA manufactured the generator
in question and was responsible for the service manual. However, on
October 20, 2016, the parties stipulated to the dismissal of DIA because it
was discovered that DIA was not the manufacturer or the author of the
service manual. Generac then filed a motion to file a Notice of Non-Party
Fault against Doosan Korea and plaintiff filed a motion to amend to name
Doosan Korea as a defendant. (Doc. 35 and 36). The court granted the
unopposed motions but noted that Doosan Korea retained the right to
object to the timing of the Notice which was filed well outside the 91-day
limitations period since the filing of defendant’s first responsive pleading as
required pursuant to MCR 2.112(K)(3)(c).
Because the Notice was filed outside the 91-day limitations period,
the Notice was only timely if Doosan Korea’s identify could not have been
discovered sooner with reasonable diligence and allowing the late filed
Notice would not prejudice the opposing party. In its pending motion,
Doosan Korea has come forward with proofs demonstrating that Generac
and plaintiff knew of its identity at least four months before the Notice of
Non-Party Fault was filed. Plaintiff has not submitted any proofs to the
contrary despite the opportunity to do so.
Converting Motion to Dismiss Into Motion for Summary
Defendant originally filed a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) based on a statute of limitations defense.
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, the court is limited to the allegations of the
complaint and may not resort to matters outside the pleadings. Rondigo,
L.L.C. v. Twp. 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 converted
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). Thus, the court issued an order on June 14, 2017
allowing the parties to submit matters outside the pleadings for the court to
review. Defendant has submitted supplemental documents in support of its
statute of limitations defense (Doc. 56). Plaintiff and defendant Generac
have not submitted any additional documents despite the opportunity to do
The court’s consideration of the statute of limitations defense is
considered under the standard of a motion for summary judgment. Federal
Rule of Civil Procedure 56(c) empowers the court to render summary
judgment "forthwith if the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." See Redding v. St. Eward, 241
F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed the court's
use of summary judgment as an integral part of the fair and efficient
administration of justice. The procedure is not a disfavored procedural
shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox
v. Ky. DOT, 53 F.3d 146, 149 (6th Cir. 1995).
Standard of Law
The standard for determining whether summary judgment is
appropriate is "'whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.'" Amway Distribs. Benefits Ass’n v.
Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all
reasonable inferences must be construed in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he
mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original);
see also Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th
If the movant establishes by use of the material specified in Rule
56(c) that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law, the opposing party must come forward with
"specific facts showing that there is a genuine issue for trial." First Nat’l
Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v.
988011 Ont., Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or
denials in the non-movant's pleadings will not meet this burden, nor will a
mere scintilla of evidence supporting the non-moving party. Anderson, 477
U.S. at 248, 252. Rather, there must be evidence on which a jury could
reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
Plaintiff’s Claims against Doosan Korea are Time-barred
Doosan Korea argues that the claims against it are time-barred
because they were filed outside the applicable three year period of
limitations which governs personal injury and products liability breach of
warranty claims. Mich. Comp. Laws § 600.5805(10); § 600.5805(13). The
injury in this case occurred on October 12, 2012. Plaintiff moved to amend
the Complaint on October 18, 2016 and amended the Complaint on
December 5, 2016, well outside the three-year window. Plaintiff responds
that the claims against Doosan Korea relate back to the filing of the original
Complaint because plaintiff amended the Complaint based on Generac
filing a Notice of Non-Party Fault.
Specifically, on November 16, 2016, the court granted Generac’s
motion for leave to file a Notice of Non-Party Fault against Doosan Korea
under Mich. Comp. Laws § 600.2957 and MCR 2.112(K). The court
recognized that Michigan’s procedures for filing a Notice of Non-Party Fault
are a matter of state substantive law. Sedgwick Ins. v. F.A.B.E. Custom
Downstream Sys., Inc., 47 F. Supp. 3d 536, 545 (E.D. Mich. 2014) (citing
Bev. Distribs. v. Miller Brewing Co., 690 F.3d 788, 792 (6th Cir. 2012)).
This is true because the state procedures for filing a Notice of Non-Party
Fault are part and parcel of Michigan’s statutory scheme of “fair share
liability,” and characterizing the rule as strictly procedural would “promote
the very forum shopping an inequitable administration of the laws Erie
sought to avoid.” Greenwich Ins. Co. v. Hogan, 351 F. Supp. 2d 736, 739
(W.D. Mich. 2004) (collecting diversity cases adopting state procedural
requirements for giving Notice of Non-Party Fault).
Michigan law provides that liability can be allocated to a non-party at
the time of trial. In order to have the jury allocate liability to a non-party,
however, a defendant must file a Notice of Non-Party Fault pursuant to
MCR 2.112(K). Generally, such Notice must be filed within 91 days since
the filing of the defendant’s first responsive pleading, which did not occur in
this case. MCR 2.112(K)(3)(c). But a later filing may be permitted upon a
showing that the facts on which the Notice were based were not and could
not be known with reasonable diligence to the moving party, and the Notice
does not result in unfair prejudice to the opposing party. Id. The court
allowed Generac to add Doosan Korea as a non-party defendant in the
absence of any objection, but noted that discovery in this matter closed on
July 15, 2016, suggesting that discovery of Doosan Korea’s role in this
matter should have been discovered sooner. Although the court allowed
Generac to file the late filed Notice of Non-Party Fault, the court noted that
its order did not preclude Doosan Korea from objecting to the timing of the
Notice in its responsive pleading. (Doc. 38 at 5). The court also permitted
plaintiff to amend the Complaint as allowed under Michigan law which
authorizes the amendment of a complaint after the identification of a nonparty who may have been at fault. Mich. Comp. Laws § 600.2957(2)
(2) Upon motion of a party within 91 days after
identification of a nonparty, the court shall grant leave to
the moving party to file and serve an amended pleading
alleging 1 or more causes of action against that nonparty.
A cause of action added under this subsection is not
barred by a period of limitation unless the cause of action
would have been barred by a period of limitation at the
time of the filing of the original action.
Id. The rule extends the statute of limitations period for a party
added based on the Non-Party Fault Rule, allowing it to relate
back to the filing of the original cause of action.
Accordingly, if the Notice of Non-Party Fault was properly filed, the
Amended Complaint would relate back to the filing of the original Complaint
and plaintiff’s claims against Doosan Korea would be timely. Unfortunately
for plaintiff, the Notice of Non-Party Fault here must be stricken as untimely
because Generac failed to file its Notice within a reasonable time after
learning of Doosan Korea’s identity, and thus, plaintiff’s claims against
Doosan Korea are time-barred.
Plaintiff’s reliance on United House of Prayer for All People v. United
Bldg. Contractors, Inc., 428 F. Supp. 2d 688, 693 (E.D. Mich. 2006) is
misplaced. In that case, the court excused defendant’s untimeliness in
filing its Notice of Non-Party Fault because plaintiff articulated sufficient
reasons as to why defendant’s potential liability had not been previously
discovered. No such reasons have been articulated here. In fact, the
evidence is overwhelming that Generac should have known of the
existence of Doosan Korea as early as November 30, 2015, when plaintiff’s
counsel sent the parties a photograph of the identification plate from the
subject generator which conspicuously identifies Doosan Korea as the
manufacturer. (Doc. 56-2, 56-3).
Plaintiff’s reliance on Walker v. Nat’l Steel Corp., No. CIV. 04-60194,
2005 WL 2649294, at *2 (E.D. Mich. Oct. 14, 2005) is equally unavailing.
In that case, the Non-Party at Fault Notice was filed within 91 days of
defendant's first responsive pleading, and therefore, was valid. Here, the
Notice was filed outside the 91-day window and although late discovery of
the existence of a potentially liable defendant can extend the time limit,
here the evidence is overwhelming that Doosan Korea’s identity was known
many months before the Notice was filed.
The court briefly summarizes the evidence which proves that plaintiff
and Generac knew of the identity of Doosan Korea as much as ten months
before the Notice of Non-Party Fault was filed, or at the very least, some
four months before the Notice was filed. Doosan Korea has submitted the
following significant proofs, among others: (1) on November 30, 2015,
plaintiff’s counsel sent the parties a photograph of the identification plate
from the subject generator which conspicuously identifies Doosan Korea as
the manufacturer; (2) on April 18, 2016, DIA’s counsel spoke to plaintiff’s
counsel and requested its dismissal on the basis that Doosan Korea, not
DIA, designed and manufactured the product and plaintiff’s counsel
requested an affidavit to that effect; (3) on May 5, 2016, DIA’s counsel,
served the requested affidavit prepared by Tom Lattie who had served as
Vice President of DIA, stating that the subject generator was designed and
manufactured by Doosan Korea, who also drafted the service manual, and
provided all parties with Doosan Korea’s address. (Doc. 56).
Despite the fact that the court allowed Plaintiff additional time to
submit matters outside the pleadings for the court’s review, Plaintiff has not
filed any response. Thus, Doosan Korea’s proofs that it could have been
identified long before the Notice of Non-Party Fault was filed stand
unrefuted. The court cannot permit the late filed Notice because there has
been no showing that Doosan Korea’s identity could not be known much
earlier with reasonable diligence. In addition, excusing the untimeliness of
the Notice would result in unfair prejudice to Doosan Korea as it was
named as a defendant over four years after the incident.
Statutes of limitations serve to protect defendants from stale claims,
and to protect defendants from the injustice of defending claims where
evidence may have been lost, memories failed, and witnesses have
disappeared. See Jacobs v. Baylor Sch., 957 F. Supp. 1002, 1008 (E.D.
Tenn. 1996). Statutes of limitations serve to make “an end to the possibility
of litigation after the lapse of a reasonable time.” Id. (internal quotation
marks and citations omitted). Given the equities here, it would be unfair to
subject Doosan Korea to defend against stale claims where its identity
could have been known much sooner.
MCR 2.112(K)(3)(c) allows the filing of a Notice of Non-Party Fault up
to 91 days after defendant’s first responsive pleading. Defendant Generac
filed its first responsive pleading on October 22, 2015, and filed a Notice of
Non-Party Fault naming Doosan Korea nearly a year later on September
22, 2016. The Notice came 336 days after Generac’s Answer. MCR
2.112(K)(3)(c) also provides that the court can allow a late filing on a
showing that facts to which the Notice is based on could not have been
reasonably ascertained by the party and there is no unfair prejudice to the
opposing party. The Notice was filed 336 days after Generac’s Answer,
obviously well outside the 91-day period for filing such a Notice under MCR
2.112(K)(3)(c). At the very latest, Generac can be held to be aware of
Doosan Korea’s potential liability on May 5th, 2016 when it was served with
the affidavit of DIA’s former Vice President of Finance, Tom Lattie. Viewing
this evidence in the light most favorable to Generac, and using the May 5th
date, Generac’s Notice was filed at least 140 days after it received
notification of Doosan Korea’s potential liability. Neither Generac, nor
plaintiff, offered any evidence to explain this significant delay. Accordingly,
the Amended Complaint adding Doosan Korea does not relate back to the
filing of the original Complaint and plaintiff’s claims against Doosan Korea
are time-barred. Thus, Doosan Korea’s motion for summary judgment is
Personal Jurisdiction over Doosan Korea
Having decided that plaintiff’s claims against Doosan Korea are timebarred, the court does not reach the issue of whether the court has
personal jurisdiction over Doosan Korea. The court notes that the record
was not sufficiently developed for the court to reach a final decision on this
This court GRANTS defendant Doosan Korea’s motion for summary
judgment of time-barred claims (Doc 48) and Doosan Korea is
IT IS SO ORDERED.
Dated: July 11, 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
July 11, 2017, by electronic and/or ordinary mail.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?