Turnage et al v. Messersmith Manufacturing, Inc. et al

Filing 40

MEMORANDUM OPINION AND ORDER granting 34 Motion to Dismiss. Plaintiff's claims against McConnell Technologies are dismissed with prejudice. Signed by District Judge Keith Starrett on 2/9/2016 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
JONATHAN DAVIS TURNAGE
and WIFE, ANGELA TURNAGE
v.

PLAINTIFFS
CIVIL ACTION NO. 2:14-CV-124-KS-MTP

MCCONNELL SALES AND ENGINEERING
CORPORATION, INC., AN ALABAMA
CORPORATION; MCCONNELL TECHNOLOGIES,
INC., AN ALABAMA CORPORATION; and
JOHN DOES C THROUGH Z

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss [34] filed by Defendant McConnell
Technologies, Inc. After considering the submissions of the parties, the record, and the applicable
law, the Court finds that this motion is well taken and should be granted.
I. BACKGROUND
Plaintiffs Jonathan and Angela Turnage (“Plaintiffs”) initiated this products liability action
on March 24, 2014, against John Does A through Z in the Circuit Court of Lawrence County,
Mississippi. They amended their complaint on July 7, 2014, to assert claims against MesserSmith
Manufacturing, Inc. (“MesserSmith”). MesserSmith removed the action to this Court on the basis
of diversity jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441. MesserSmith was subsequently
dismissed for lack of personal jurisdiction on January 14, 2015.
Plaintiffs amended their complaint again on January 27, 2015, substituting the unknown
defendant John Doe A with Defendant McConnell Sales and Engineering Corporation, Inc.
Plaintiffs amended once more on August 27, 2015, in order to replace the unknown defendant
designated as John Doe B with Defendant McConnell Technologies Inc. (“McConnell
Technologies”).

McConnell Technologies now brings the current Motion to Dismiss [34], arguing that the
claims of strict liability and negligence against it are time-barred by the three-year statute of
limitations found in Mississippi Code Annotated § 15-1-49.
II. DISCUSSION
“[W]hen a successful affirmative defense appears on the face of the pleadings, dismissal
under Rule 12(b)(6) may be appropriate.” Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717,
726 (5th Cir. 2013) (quoting Kansa Reins. Co. v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1366
(5th Cir. 1994)). “A statute of limitations may support dismissal under Rule 12(b)(6) where it is
evident from the plaintiff’s pleadings that the action is barred and the pleadings fail to raise some
basis for tolling or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).
The parties agree that, if Plaintiffs’ substitution of McConnell Technologies does not relate
back to the date of the original complaint, then their claims against it are time-barred by the
applicable three-year statute of limitations. They also agree that if this substitution does relate back
to the original complaint, the claims are not time-barred. Whether the claims relate back, then, is
the only question before the Court.
Plaintiffs argue that relation back is necessitated by Federal Rule of Civil Procedure
15(c)(1)(C), which allows an amended pleading adding a party to relate back to the original filing
date when the new party had notice of the action and where there was a mistake concerning the
proper party’s identity. The Fifth Circuit has ruled, however, “that, for a ‘John Doe’ defendant,
there [is] no ‘mistake’ in identifying the correct defendant; rather, the problem was not being able
to identify that defendant.”

Jacobsen v. Osborne, 133 F.3d 315, 320-21 (5th Cir. 1998).

Furthermore, even if Plaintiffs were correct that there was a mistake as to the identity of the proper
defendant, they claim that McConnell Technologies had notice that legal action was “probable” at
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some unspecified time after the injury took place. Rule 15(c)(1)(C)(i) does not, however, require
notice that an action could be brought—it requires notice that the pending action has been brought.
Nothing in the record indicates that McConnell Technologies had notice of the current action.
Therefore, Plaintiffs argument for relation back under Rule 15(c)(1)(C) must fail under both prongs
of the analysis.
McConnell Technologies argues that the only avenue of relation back available to Plaintiffs
is under Rule 15(c)(1)(A), which allows relation back when “the law that provides the applicable
statute of limitations allows relation back.” The advisory committee notes to this rule state that
“[w]hatever may be the controlling body of limitations law, if that law affords a more forgiving
principle of relation back than the one provided in this rule, it should be available to save the claim.”
Fed. R. Civ. P. 15(c)(1) advisory committee note; see also Pruitt v. Invacare Corp., No. 2:13-CV293-TSL-JCG, 2014 WL 5465342, at *3 (S.D. Miss. Oct. 28, 2014); Thomas v. Rankin Cty., Miss.,
No. 3:14-CV-419-DPJ-FKB, 2015 WL 5772398, at *3 (S.D. Miss. Sept. 30, 2015). Under
Mississippi law, the controlling body of law for the applicable statute of limitations, relation back
is allowed when substituting a real party for a fictitious party when the plaintiff has exercised
reasonable diligence in determining the true identity of the fictitious party. Wilner v. White, 929
So.2d 315, 322-323 (Miss. 2006).
McConnell Technologies contends that, because Plaintiffs learned of its identity through
investigative inquiries not aided by court-authorized discovery, their failure to employ those same
inquiries within the three-year limitations period defeats any claim of “reasonable diligence” they
may advance. Plaintiffs offer no argument or evidence to refute this contention, instead resting on
their belief that a diligence inquiry is not required as the amendment relates back under Rule
15(c)(1)(C), which the Court has already established does not apply. As the record does not show
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that Plaintiffs exercised reasonable diligence in determining McConnell Technologies’ identity, the
Court cannot find that Plaintiffs’ substitution of McConnell Technologies for John Doe B relates
back to the date the original complaint was filed. Therefore, the claims against McConnell
Technologies are time-barred by the statute of limitations and must be dismissed.
For the foregoing reasons, the Court will grant the Motion to Dismiss [34] and the claims
against McConnell Technologies will be dismissed with prejudice.
III. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that McConnell Technologies’ Motion
to Dismiss [34] is granted. Plaintiffs’ claims against McConnell Technologies are dismissed with
prejudice.
SO ORDERED AND ADJUDGED this the 9th day of February, 2016.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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