Douglas et al v. Norwood et al

Filing 20

ORDER dismissing without prejudice 8 Motion to Dismiss for Failure to State a Claim; denying 16 Motion to Strike rebuttal brief or alternatively, to file a sur-rebuttal brief. Signed by District Judge Michael P. Mills on 8/27/2014. (lpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION

BRADY DOUGLAS and ROBERTO RAMIREZ
VS.

PLAINTIFFS
CIVIL ACTION NO. 3:13CV271-M

CHARLES NORWOOD d/b/a NORWOOD
TRUCKING, NORWOOD TRUCKING, INC., NTC
and ROGER SHAW

DEFENDANTS

ORDER
This cause comes before the court on defendants’ motion for Rule 12 dismissal or,
alternatively, Rule 56 summary judgment, on the grounds that this action was not timely filed.
Plaintiffs have responded in opposition to the motion, and, the court, having considered the
memoranda and submissions of the parties, concludes that a Rule 56 summary judgment motion
is the proper context in which to consider the limitations issues in this case but that the parties
should first conduct limited discovery prior to such a motion being filed. The instant motion will
therefore be dismissed without prejudice to refiling at a later date. Prior to dismissing the motion
to dismiss, however, the court will provide its initial observations regarding the issues raised in
it. Hopefully, these observations will assist the parties in their discovery and future briefing on
these issues.
This is a negligence case, based on diversity jurisdiction, involving an automobile
accident that occurred in Boone County, Kentucky on November 2, 2010. In their complaint, the
plaintiffs, who are Texas residents, seek recovery against defendant Roger Shaw and his
employer Charles Norwood d/b/a Norwood Trucking, Inc. (“Norwood”). Both Shaw and

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Norwood are domiciled in Mississippi, and plaintiffs allege that the negligence of both
contributed to the accident which left them injured.
Defendants argue in the present motion, however, that Kentucky law applies in this case
and that its two-year statute of limitations bars the instant action. Plaintiffs filed suit in this court
on October 31, 2013, which is almost three years after the accident and thus, barring some form
of legal or equitable tolling, is untimely under Kentucky law. However, the limitations issues in
this case are rendered far more difficult and complex by the fact that plaintiffs initially filed suit
in Texas, on August 3, 2012,1 which was timely even under Kentucky law. However, the Texas
court granted, on June 19, 2013, defendant Charles Norwood’s motion to dismiss for lack of
personal jurisdiction. The Texas court only granted this relief after Norwood had represented to
it, in formal briefing in March 2013, that:
The dismissal and refiling of this case in Boone County, Kentucky would not work an
injustice to Cross Plaintiff, as the statute of limitations has not run.2
As best this court can tell, this statement was not accurate at the time it was made, given that
Kentucky’s two-year statute of limitation appears to have run, barring some tolling, on
November 2, 2012. As discussed below, it appears to the court that Kentucky law provides for
no such tolling of its two-year statute of limitations on the basis of claims filed outside of that
state.
Norwood now moves this court for dismissal on the very same statute of limitations
grounds which, he assured the Texas court, would not pose an obstacle to Ramirez refiling this
suit. This obviously raises serious equitable and estoppel concerns, which the court discusses
below. First, however, the court will address the legal issues relating to whether this action was
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Somewhat confusingly, plaintiff Douglas, who was the passenger in the vehicle, was listed as the sole plaintiff in
the Texas action and plaintiff Ramirez, who was driving Douglas, was listed as a defendant but was referred to by
the parties in the Texas suit as a “cross-plaintiff.”
2
The court notes that defendants’ present counsel did not make the representations in question to the Texas court.

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timely filed, barring some form of estoppel. The court initially observes that, in cases involving
automobile accidents, it has generally applied the law of the state where the accident occurred,
even in cases where, as here, there were allegations that related acts of negligence occurred in
other states. In Maggette v. BL Development Corp., No. 2:07CV181, for example, this court,
following considerable research, applied Arkansas law to a case involving a bus accident
resulting in multiple fatalities which occurred in that state. This court applied Arkansas law even
though the bus was filled with passengers from Illinois on their way to a casino in Mississippi,
and there were allegations that negligent acts in both states had contributed to the accident.
In this case, plaintiffs allege that acts of, inter alia, negligent hiring and supervision in
Mississippi by Norwood contributed to the accident in Kentucky, but the complaint’s allegations
in this regard are rather vague and conclusory. For example, the complaint alleges that Shaw
was an incompetent driver and that Norwood should have known such when it hired him, but it
makes no specific allegations in this regard. The complaint further fails to provide specifics as to
how Norwood failed to “supervise” Shaw while he was driving hundreds of miles away in
Kentucky. Accordingly, while the court makes no formal ruling on the choice of law issues at
this time, it is rather strongly inclined to conclude that Kentucky law will apply in this case.
Indeed, the parties themselves appear to have assumed that this would be the case throughout
much of this litigation, including in the complaint, where plaintiffs allege that Kentucky statutes
were violated.
The likely applicability of Kentucky law is unfortunate for plaintiffs in this case, since
that state’s law provides for a two-year statute of limitations for automobile accidents such as
this one, subject to exceptions which plaintiffs appear to acknowledge are not applicable in this
case. Even worse for plaintiffs, while this court’s research indicates that Kentucky law does

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have a savings statute applicable in cases where suit is timely filed initially but dismissed for
lack of jurisdiction, that statute provides, and has been so interpreted, to only be applicable to
cases filed in Kentucky. Specifically, KRS 413.270 provides that:

(1) If an action is commenced in due time and in good faith in any court of this state and
the defendants or any of them make defense, and it is adjudged that the court has no
jurisdiction of the action, the plaintiff or his representative may, within ninety (90) days
from the time of that judgment, commence a new action in the proper court. The time
between the commencement of the first and last action shall not be counted in applying
any statute of limitation.
Unfortunately for plaintiffs, however, they filed their first action in Texas, not Kentucky, and a
Kentucky appellate court has held that the savings statute must be strictly construed and is
inapplicable where suit is filed in another state. See Blair v. Peabody Coal Co., 909 S.W.2d 337
(Ky. App. 1995).
This court’s research further indicates that while Mississippi has its own savings statute,
the Mississippi Court of Appeals has held that, like the Kentucky statute, it does not apply to
suits which were filed and dismissed in other states. See S & H Grocery Inc. v. Gilbert Const.
Co., Inc., 733 So.2d 851 (Miss. App. 1998), interpreting Miss. Code Ann. § 15-1-69. This is
significant, since it considerably weakens plaintiffs’ argument that the application of Kentucky’s
statute of limitations would run counter to the public policy of this state.3 Defendants’ legal
position in this context is rendered even stronger by the existence of another Mississippi statute
which provides that where a cause of action which “accrued” in another state is time-barred in
that state, a non-resident may not bring suit in this state based on that cause of action.
Specifically, § 15-1-65 provides that:
When a cause of action has accrued outside of this state, and by the laws of the place
outside this state where such cause of action accrued, an action thereon cannot be
3

The court’s findings in this regard are subject to change, since they merely reflect its own research, and the parties
have not had an opportunity to submit arguments in this regard.

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maintained by reason of lapse of time, then no action thereon shall be maintained in this
state; provided, however, that where such a cause of action has accrued in favor of a
resident of this state, this state's law on the period of limitation shall apply.
The evident purpose of this statue is to prevent Mississippi courts from becoming a “haven” for
actions which are time-barred in other jurisdictions, and it strikes the court as being supported by
significant public policy considerations. In light of the foregoing, the court is inclined to agree
with defendants that Kentucky law applies and that the law of that state would deem the present
action to be time-barred.
While the court thus finds defendants’ legal arguments to be persuasive, it considers the
plaintiffs’ equitable position in this case to be a strong one. Wherever possible, this court seeks
to avoid fundamentally unjust results in its courtroom. In the court’s view, dismissing on statute
of limitations grounds an action that was timely filed in Texas court and which was dismissed on
jurisdictional grounds only after one of the defendants had assured the Texas court that a refiling
of the lawsuit would not be time-barred would seemingly be an unjust result. The court would
prefer to avoid such an unjust result if it has the equitable authority to do so. It is not clear to this
court, at this juncture, whether it does, and it would like to consider additional evidence, and
likely conduct a hearing, before making a formal ruling in this regard.
Defendants argue that the Texas court did not rely upon Mr. Norwood’s assurance in
making its ruling, but it is not clear how they can know that such is the case. In this court’s
experience, courts are often cognizant of the “real life” consequences of their rulings, even if
those consequences are not strictly relevant to the legal analysis at hand. Based on the limited
exhibits provided to this court, it appears that the Texas court simply ruled without explanation
that Norwood’s “special appearance should be sustained” and that Ramirez’s claims against
Norwood were “dismissed for lack of personal jurisdiction.” Given the lack of explanation in its

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order, it is unclear to this court whether the Texas court felt that the jurisdictional issues were
completely clear or whether they might have presented a “close call” as to which plaintiff’s
ability to re-file suit might have been deemed a relevant consideration.
This court has reviewed Norwood’s Texas motion, and it appears to be a rather barebones affair. In particular, the motion merely asserts that Norwood has “never maintained a
place of business in Texas or a residence in Texas” with no further recitation of the extent of his
contacts with that state. This strikes the court as being a very selective recitation of facts for an
individual who is the principal of a trucking company which, one would presume, regularly
sends its eighteen-wheel trucks over the highways of Texas.4 If such is not the case, then
Norwood did not so indicate in his motion. The court further notes that Norwood’s motion
merely argued that specific jurisdiction was inapplicable, and this seems clear enough,
considering that the claims arising from the Kentucky automobile accident did not arise from any
contacts Norwood may have had with Texas. See Walk Haydel & Assocs., Inc. v. Coastal Power
Prod. Co., 517 F.3d 235, 241 (5th Cir. 2008).
Norwood’s brief did not address the issue of whether general jurisdiction existed under
Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408 (1984). It is well settled that
where a defendant has “continuous and systematic general business contacts” with the forum
state, the court may exercise “general” jurisdiction over any action brought against that
defendant, even if a particular cause of action did not arise out of the defendant’s in-state
activities. Luv N' Care Ltd. v. Insta–Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006) (citing
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. at 414). Establishing general

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The court would hasten to add that it has no intention of relitigating the issue of whether personal jurisdiction
existed over Norwood in Texas. Indeed, it likely lacks the authority to do so even if it wanted to. Suffice it to say,
however, that the court would be more willing to grant Norwood the relief he seeks if his briefing before the Texas
court more clearly established that personal jurisdiction over him was lacking.

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jurisdiction is quite difficult, and the Texas court may well have reached the same result even if
given a full picture of Norwood’s contacts with Texas. Regardless, Norwood’s brief on this
issue is vague enough that this court cannot conclude, based upon the limited evidence before it,
that his representation that plaintiff could refile his suit elsewhere did not play a role in the Texas
court’s ruling.
Presumably, Norwood would not have represented that Ramirez’s action could be refiled
after dismissal if it did not believe it would have an impact on the Texas court’s ruling.5 It is not
clear to this court why he should receive the benefit of the doubt in this regard, since he is the
one who made false representations to the Texas court in the first place. Still, the court is
cognizant of the fact that its equitable powers under these circumstances have their limits, and it
finds the proof and briefing which is presently before it to be insufficient to allow it to make a
decision either way. It appears to the court that potential options for barring the raising of a
statute of limitations defense in this case include the doctrines of judicial or equitable estoppel.
Each of these doctrines has certain specific requirements, relating largely to whether either a
court or a party relied to their detriment on a particular representation, and it is not clear to this
court at this juncture whether these requirements are met. The court concludes, however, that
this inquiry is (at least potentially) a fact-intensive one and that the parties should first conduct
limited discovery on this issue prior to submitting revised briefing. This briefing should be a full
summary judgment briefing, and it should include all relevant orders and proof from the Texas
proceedings, as well as any proof relevant to the issue of reliance by the Texas court or by the
plaintiffs (or their counsel) in this case.

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Defendants note that Norwood made this representation in the portion of his brief which alternatively argued that
the case should be dismissed based upon forum non conviens. It is not clear to this court why this makes a
significant difference, since the Texas court was nevertheless advised of this erroneous contention.

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In their revised briefing, the court would also like the parties to brief the issue of whether
it has the inherent judicial authority to preclude a certain defense from being raised in order to
protect the integrity of the judicial process. It strikes the court that, regardless of whether the
Texas court, the plaintiffs or their counsel relied upon Norwood’s statement, the facts remain that
1) Norwood did, in fact, assure the Texas court that the action could be refiled if dismissed 2) the
statement was false at the time Norwood made it and 3) he now seeks to assert the same statute
of limitations defense which, he assured the Texas court, would not be an issue if the case were
dismissed.
The reliance interests protected by the doctrines of judicial and equitable estoppel are
important ones, but so is the basic integrity of the judicial process. It is certainly arguable that
allowing Norwood to raise the statute of limitations defense under the unique circumstances of
this case would be an insult to the integrity of that process. It should also be noted that the
“harm” that Norwood would suffer if his statute of limitations defense were disallowed would be
that a case which was timely filed originally would be allowed to proceed on its merits, just as he
assured the Texas court it would. Trying cases on their merits is, of course, the basic function of
this court, and its natural judicial instinct is to perform this function in this case, if considerations
of law and equity permit it to do so. It is not clear at this juncture whether they do.
After discovery, this court will likely hold a hearing in this regard so that it is able to get
a full picture of the facts relevant to this issue. The court suggests that the parties also consider
using the discovery period to enter into settlement negotiations. It seems clear that there is a
considerable uncertainty looming over these proceedings, and, even if this court decides that
considerations of equity should bar defendant from raising a statute of limitations defense, the
Fifth Circuit may not agree. Accordingly, it may benefit all parties to seek to remove the

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uncertainty in this regard by making a candid evaluation of the strengths and weaknesses of their
legal positions and trying to resolve this matter accordingly.
Regardless, the court finds a Rule 12 motion to dismiss to not be the proper context in
which to decide these difficult equitable issues, and there is insufficient evidence in the record to
allow the court to treat it as a summary judgment motion. Defendants’ motion to dismiss [81]will therefore be dismissed without prejudice to be refiled as a summary judgment motion
following limited discovery on any issues relevant to this motion. Plaintiffs’ motion to strike
defendants’ rebuttal brief, or alternatively, to file a sur-rebuttal brief is denied.6
So ordered, this the 27th day of August, 2014.

/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

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One obstacle plaintiffs face in obtaining relief from the court are the actions of their counsel, who failed, on two
occasions, to submit a sur-rebuttal brief when he had specifically represented to the court that he would. As sanction
for same, the court will disallow the filing of a sur-rebuttal brief, where it would otherwise have been freely granted.

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