Rose v. Bersa et al
Filing
54
OPINION AND ORDER granting 39 Bersa's Motion to Dismiss, granting in part 44 Eagle Imports' Motion for Judgment on the Pleadings, granting in part 48 Rose's Motion for Discovery and for Extension of Time to File Response, denying 49 Rose's Motion for Jurisdictional Discovery, and dismissing 37 Rose's Amended Complaint as it relates to her claims against Bersa for lack of jurisdiction. In accordance with this Opinion, the Courtfurther directs Rose and Eagle Imp orts to conduct discovery on the narrow issueof the Invoice's authenticity and converts Eagle Imports' Motion for Judgmenton the Pleadings to a Motion for Summary Judgment on the remaining question ofwhether Ohio's statute of repose ba rs Rose's claim. The parties are directed to confer with each other, and to inform the Court of an appropriate timetable for completing such discovery and providing supplemental briefing to the Court on the issues identified immediately above. If the parties are unable to reach an agreed resolution regarding such scheduling, they are directed to contact the Court to set a status callin this matter. Signed by Judge Douglas R. Cole on 8/31/20. (sct)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRITTANY ROSE,
Plaintiff,
Case No. 1:17-cv-252
JUDGE DOUGLAS R. COLE
v.
BERSA, et al.,
Defendants.
OPINION AND ORDER
This cause comes before the Court on Defendant Bersa, S.A.’s (“Bersa”) Motion
to Dismiss for Lack of Jurisdiction (Doc. 39), Defendant Eagle Imports’ Motion for
Judgment on the Pleadings (Doc. 44), as well as Plaintiff Brittany Rose’s motion
asking the Court to convert Defendants’ motions to motions for summary judgment,
and requesting discovery and an extension of time to respond to those motions once
converted (Doc. 48), and Rose’s motion seeking jurisdictional discovery (Doc. 49). For
the reasons below, the Court GRANTS Bersa’s Motion to Dismiss (Doc. 39),
GRANTS IN PART Eagle Imports’ Motion for Judgment on the Pleadings (Doc. 44),
GRANTS IN PART Rose’s motion seeking conversion of the motions, discovery,
and additional time (Docs. 48), DENIES Rose’s motion for jurisdictional discovery
(Docs. 49), and DISMISSES Rose’s Amended Complaint (Doc. 37) as it relates to
Bersa for lack of jurisdiction.
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BACKGROUND
A.
Facts As Alleged In Rose’s Amended Complaint.
In her Amended Complaint, Rose, an Ohio resident, alleges that she was
injured on August 8, 2015 (but she doesn’t say where the injury occurred), while
target shooting with a Bersa Thunder 380, a gun that her father had acquired
sometime around November 2005. (Rose’s Am. Compl. at ¶¶ 3, 7, Doc. 37, #324). Due
to an alleged design defect associated with the gun’s firing pin, the gun fired “not
once, but on a continuing basis.” (Id. at ¶¶ 8, 9). As a result of the gun’s alleged
malfunction, Rose suffered severe injuries to the tips of her fingers when the gun fired
more rounds than Rose had expected. (Id. at ¶ 12, #325).
Rose alleges that this case falls within the Court’s diversity jurisdiction, see 28
U.S.C. § 1332(a), “as the case involves a dispute between citizens of different states
and the amount in dispute exceeds $75,000.00.” (Id. at ¶ 1, #323). On the citizenship
front, Rose asserts that “Bersa is a firearms manufacturer from Argentina that does
business in the United States exclusively through Defendant Eagle Imports.” (Id. at
¶ 4, #324). Further, Rose alleges that “Bersa has no known agents, facility, or other
presence within the United States (apart from [Eagle Imports]) and has been served,
with a letter rogatory pursuant to the Hague Convention.” (Id.). Rose states that
“Eagle Imports is a New Jersey corporation doing business in the state of Ohio” and
“is the exclusive North American distributor for Bersa.” (Id. at ¶ 5). Finally, Rose also
states that the gun “was first placed into the stream of commerce and sold to a
consumer less than ten years before the injury occurred[,]” (id. at ¶ 11), presumably
by “John Doe #1” who “is a person or persons” that “assisted in putting the firearm in
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the stream of commerce … .” (Id. at ¶ 6). Rose does not say anything about John Doe
#1’s citizenship, whether he directed business activities at Ohio, or whether he acted
on behalf of Bersa or Eagle Imports.
Notably, although the Amended Complaint does not specify where Rose’s
injury occurred, Rose alleges that venue is proper in this Court “because a substantial
amount of events giving rise to this claim occurred within the Southern District of
Ohio.” (Id. at ¶ 2, #323).
Based on those allegations, Rose asserts in her Amended Complaint two
product liability claims against Bersa, Eagle Imports, and John Doe #1 (collectively,
“Defendants”): one arising under New Jersey law and the other under Ohio law. (Id.
at ¶¶ 13–31, #325–27). She acknowledges that she cannot pursue both claims, but
instead pursues them in the alternative, depending on which forum’s law applies. (Id.
at ¶ 14, #325).
In her first cause of action, titled “Product Liability Under New Jersey Law
N.J.S. §§ 2A:58C-1, et seq.” Rose states that:
Under choice of law analysis used in the forum state [(i.e., Ohio)],
New Jersey Law product liability law applies if the Ohio statute of
repose would otherwise bar the matter because, under these facts, the
New Jersey government interest in its manufacturers and sellers
purveying safe products outweighs the Ohio interest in a lesser burden
for its state courts.
(Id. at ¶ 14, #325). Rose then states that Eagle Imports is a “Seller” under New Jersey
law and that, because Bersa has no agents, facility, or other presence within the
United States, Eagle Imports “is strictly liable[,] in accordance with N.J.S. § 2A:58C-9
for damages caused by defective design and failure to warn.” (Id. at ¶¶ 17, 18). And
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because “the design defect and failure to warn show[] a willful disregard” for Rose’s
rights and were likely to cause severe injury or death, she alleges, “Defendants are
jointly and severally liable for punitive damages in an amount believed to
approximate $2,000,000.00.” (Id. at ¶ 21, #325–26).
In her alternative product liability claim, which relies on Ohio law, Rose states
that “[t]he statute of repose under [Ohio Revised Code] § 2305(c)(1) does not apply as
the first sale to a consumer took place less than ten years before the injury.” (Id. at
¶ 23, #326). Rose then asserts that Eagle Imports is a “Seller” under Ohio law. (Id. at
¶ 26). Next, Rose alleges that, because Bersa is not subject to process in Ohio, Eagle
Imports, a “Seller” according to Rose, “is liable as the manufacturer in accordance
with [Ohio Revised Code] § 2307.78(b)(1) for damages caused by defective design and
failure to warn.” (Id. at ¶ 28). Finally, Rose repeats her statement that “as the design
defect and failure to warn shows a willful disregard” of Rose’s rights and were likely
to cause her severe injury or death, “Defendants are jointly and severally liable for
punitive damages in an amount believed to approximate $2,000,000.00.” (Id. at ¶ 31,
#327).
B.
Procedural Background.
Rose originally filed this action against Defendants on April 18, 2017, alleging
a single product liability claim under Ohio law. (Doc. 1). About four months later, on
August 14, 2017, Rose filed notices of executed summons as to Bersa and Eagle
Imports. (Docs. 5, 6). After roughly another four months, on January 2, 2018, Bersa
and Eagle Imports jointly filed a Motion for Judgment on the Pleadings (Doc. 9),
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arguing that the Court should enter judgment in their favor because: (1) Rose failed
to state a claim upon which relief could be granted, given that Ohio’s ten-year statute
of repose bars Rose’s claim, and that Eagle Imports, a supplier, cannot be liable on a
product liability theory under Ohio law; (2) Rose had not properly served Bersa; and
(3) the Court lacks personal jurisdiction over Bersa, an Argentinian company. (See
id.).
Rather than respond directly to Bersa and Eagle Imports’ Motion, Rose filed a
Motion to Deem Eagle Imports Properly Served (Doc. 11) and a “Motion to File an
Amended Complaint and to Overrule Defendants’ Motion for Judgment on the
Pleading [sic] as Moot.” (Doc. 12). In the latter, Rose requested that the Court permit
her to file an amended complaint in which she would assert against Defendants a
product liability claim arising under New Jersey law. She explained that New Jersey
law, unlike Ohio law, does not have a statute of repose that bars such claims brought
more than a certain period of time after the product’s initial sale. The Court then
found that Rose’s latter Motion (Doc. 12) was in fact more properly considered a
response to Defendants’ Motion for Judgment on the Pleadings.
Once Rose’s filings and Defendants’ Motion for Judgment of the Pleadings
became ripe, the Court issued an Order that construed Rose’s Motion to Deem Eagle
Imports Properly Served as a request for additional time to serve Eagle Imports,
which the Court granted. (Doc. 23). The Order further denied Defendants’ Motion for
Judgment on the Pleadings to the extent it requested dismissal of Eagle Imports due
to insufficient service of process. (Id.). In that same Order, the Court noted that two
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issues raised in Defendants’ Motion for Judgment on the Pleadings remained
pending: (1) Bersa’s request for dismissal due to insufficient process and service of
process, and (2) “[t]hose portions of [the Motion] that do not address process and
service of process[.]” (Id. at 16, #192). The Court did not resolve those issues.
Over the next year, the parties battled over the service issues that the Court
had addressed in its previous Order. On June 24, 2019, Rose submitted a Notice of
Successful Service upon Bersa under the Hague Convention. (Doc. 35). In light of that
Notice, the Court then issued an Order three months later, on September 27, 2019,
denying as moot the remaining requests that Defendants raised in their Motion for
Judgment on the Pleadings, and granting Rose’s Motion for Leave to File an Amended
Complaint. (Doc. 36). That same day, Rose filed her First Amended Complaint adding
the New Jersey law claim. (Doc. 37).
C.
Pending Motions.
Two weeks after Rose filed her Amended Complaint, on October 11, 2019,
Eagle Imports filed its Answer to the First Amended Complaint (Doc. 38), and Bersa
filed a Motion to Dismiss for Lack of Jurisdiction. (Doc. 39). Bersa’s motion referenced
a (second) Motion for Judgment on the Pleadings, which Eagle Imports planned to
file soon after. (See id.). In response, Rose filed a Motion (Doc. 41) requesting the
Court to extend the deadline for her response to Bersa’s motion until Eagle Imports
filed its then-forthcoming motion for judgment on the pleadings. The Court granted
Rose’s Motion. (Nov. 13, 2019 Dkt. Entry). The case was then reassigned to the
undersigned judge on December 11, 2019. (Doc. 43).
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Almost a month later, on January 7, 2020, Eagle Imports filed its awaited
Motion for Judgment on the Pleadings (Doc. 44), which relied on the invoice that
Eagle Imports attached to its Answer (the “Invoice”) (Doc. 38). Rose then once again
implemented her previous strategy and, rather than directly respond to the Motion
for Judgment on the Pleadings and Motion to Dismiss, filed a “Motion To Treat
[Defendants’ Motions] As Motions For Summary Judgment, And To Defer These
Motions In Order To Allow For The Conduct Of Discovery” (Doc. 48) and a “Motion
for Jurisdictional Discovery” (Doc. 49). She filed these motions on the day that her
responses to Defendants’ Motions were due.
In Rose’s Motions, Rose requests that the Court: (1) convert both Bersa’s
Motion to Dismiss and Eagle Imports’ Motion for Judgment on the Pleadings into
Motions for Summary Judgment, (2) strike the Invoice as the Court cannot consider
that evidence when ruling on a motion for judgment on the pleadings, and (3) allow
Rose to conduct discovery to respond to Defendants’ Motions. (Docs. 48, 49). More
specifically as to the last request, Rose asks the Court to permit jurisdictional
discovery related to Bersa so that Rose may evaluate whether personal jurisdiction
exists over Bersa in this case. Rose similarly requests the Court allow discovery
related to Eagle Imports as doing so, Rose claims, would enable her to address the
state law that applies and to determine whether her Ohio product liability claim is
barred by Ohio’s statute of repose, as Eagle Imports argues.
Rose also addresses the merits of the arguments that Defendants raised in
their Motions. That is, Rose responds to Bersa’s argument that personal jurisdiction
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does not exist over Bersa in this case, as well as to Eagle Imports’ argument that Rose
fails to state a claim against Eagle Imports. That being so, and because Rose had
ample time to respond to Defendants’ Motions—indeed the Court granted her an
extension to respond to Bersa’s Motion to Dismiss (see Nov. 4, 2019 Dkt. Entry)—the
Court construes Rose’s Motions as Memoranda in Opposition to Defendants’ Motions.
In response to Rose’s Motions, Defendants timely filed response briefs
(Docs. 50, 51) to which Rose timely filed reply briefs (Docs. 52, 53). As the Court
construes Rose’s Motions as Memoranda in Opposition to Defendants’ Motions, but
also addresses Rose’s requests in those Motions, both Defendants’ Motions (Doc. 39,
44) and Rose’s Motions (Doc. 48, 49) are properly before the Court. The Court will
address Rose’s requests in this Opinion as they arise in resolving Defendants’
Motions.
LAW AND ANALYSIS
A.
Bersa’s Motion To Dismiss For Lack Of Jurisdiction.
In Bersa’s Motion to Dismiss, Bersa argues that Rose has failed to allege facts
that indicate Bersa is subject to Ohio’s long-arm statute or that it purposefully
availed itself of the privilege of conducting business in Ohio, and so the Amended
Complaint does not show that this Court can exercise jurisdiction over Bersa. In fact,
Bersa argues, Rose pleads allegations in the Amended Complaint that establish this
Court lacks jurisdiction over Bersa. For example, Bersa points out, Rose states that
“Bersa has no known agents, facility, or other presence within the United States” and
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that Bersa “is not subject to process in the State of Ohio.” (Bersa’s Mot. at 3, #340
(quoting Rose’s Am. Compl. at ¶¶ 4, 18, 27, #324–26)).
In response, Rose asserts in her Motion for Jurisdictional Discovery that she
“believes the allegations in her amended complaint, as well as the publicly available
information
presented
in
the
attached
memorandum,
clearly
support
jurisdiction[; n]evertheless, Rose moves this Court for an order granting her leave to
conduct jurisdictional discovery, and for an extension of the deadline for her to
respond to [Bersa’s] motion … until after jurisdictional discovery has been
completed.” (Rose’s Mot. for Jurisdictional Disc. at 1, Doc. 49, #500). In that Motion,
Rose attached three exhibits that, according to Rose, establish Bersa regularly
conducts business in Ohio. Separately, Rose filed another motion that requested the
Court to convert Bersa’s Motion to Dismiss to a Motion for Summary Judgment in
hopes that the Court would allow Rose to conduct full discovery. (See Doc. 48).
1.
Standard of Review.
Federal Rule of Civil Procedure 12(b)(2) provides for dismissal when a court
lacks personal jurisdiction over a defendant. In considering whether personal
jurisdiction exists over a given defendant, district courts have discretion to decide the
motion on the pleadings alone, permit discovery in aid of deciding the motion, or
conduct an evidentiary hearing to resolve any apparent factual questions. Serras v.
First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989). Here, the Court
can decide Bersa’s Motion to Dismiss on the pleadings, without a hearing or
discovery.
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Where a Rule 12(b)(2) motion is decided on pleadings without an evidentiary
hearing, the Court applies a burden-shifting framework. Am. Greetings Corp. v. Cohn,
839 F.2d 1164, 1169 (6th Cir. 1988). Under that framework the Court must review
the allegations in the light most favorable to the plaintiff, “without considering the
‘controverting’ assertions of the Defendants.” Intera Corp. v. Henderson, 428 F.3d 605,
614, n.7 (6th Cir. 2005).1 At the first step of analysis, the plaintiff need only make a
prima facie showing that personal jurisdiction exists. Am. Greetings Corp., 839 F.2d
at 1169 (citation omitted); Conn v. Zakharov, 667 F.3d 705, 711 (6th Cir. 2012). In
analyzing whether the plaintiff has carried that burden, which is “relatively slight,”
the Court must view the allegations in a light most favorable to the plaintiff. Am.
Greetings Corp., 839 F.2d at 1169. Still, Rose must establish “with reasonable
particularity sufficient contacts between [Bersa] and the forum state to support
jurisdiction.” Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir.
2002) (quoting Provident Nat’l Bank v. Cal. Fed. Sav. Loan Ass’n¸ 819 F.2d 434, 437
(3d Cir. 1987)).
If the plaintiff can make such a showing, the burden shifts to the defendant,
whose motion to dismiss must be properly supported with evidence. Theunissen v.
Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). And, if the defendant can satisfy that
burden, then the burden shifts back once more to the plaintiff, who can no longer
As the Court has discretion in determining how best to analyze Rule 12(b)(2) motions and
because the Court will determine Bersa’s Rule 12(b)(2) Motion by reviewing the pleadings
contained in Rose’s Amended Complaint, the Court DENIES Rose’s Motion for Jurisdictional
Discovery (Doc. 49) and Motion to Convert Rose’s Motion to Dismiss to a Motion for Summary
Judgment (Doc. 48), as those motions relate to Bersa’s Motion to Dismiss for Lack of
Jurisdiction.
1
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“stand on his pleadings but must, by affidavit or otherwise, set forth specific facts
showing that the court has jurisdiction.” Id.
2.
Rose Alleges Facts That, Even When Considered In A Light
Favorable To Her, Fail To Establish That This Court Can
Properly Exercise Its Jurisdiction Over Bersa.
Because the Court is sitting in diversity, the personal jurisdiction inquiry
involves two separate sources of law. First, the Court must determine whether Bersa
is subject to suit under Ohio’s long-arm statute. See Ohio Rev. Code § 2307.382.
Second, the Court must separately ascertain whether exercising jurisdiction over
Bersa comports with the due process requirements of the United States Constitution.
CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996). Jurisdiction arises
only if the answer at each step is “yes.” Calphalon Corp. v. Rowlette, 228 F.3d 718,
721 (6th Cir. 2000). Here, the Court starts with the former and finds that Rose has
not carried her burden of making a prima-facie showing that Bersa is subject to
jurisdiction under Ohio’s long-arm statute. Accordingly, the Court need not review
whether Rose’s allegations satisfy the due process requirements that also must be
met before this Court can exercise jurisdiction over Bersa.
a.
Rose Fails To Allege Facts That Make A Prima-Facie
Showing That Bersa Is Subject To Jurisdiction Under
Ohio’s Long-Arm Statute.
The state jurisdictional law at issue here is Ohio’s long-arm statute, which
permits a court to exercise jurisdiction only when the plaintiff satisfies “one of the
enumerated bases” in that statute. Conn, 667 F.3d at 718. Although the statute lists
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many bases, Rose discusses only one—Ohio Revised Code § 2307.382(A)(4). That
section requires that Bersa, acting directly or by an agent:
Caus[ed] tortious injury in [Ohio] by an act or omission outside this state
if [it] regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from goods
used or consumed or services rendered in this state[.]
Id. And the statute further states that “[w]hen jurisdiction over a person is based
solely upon this section, only a cause of action arising from acts enumerated in this
section may be asserted against him.” Id. at § 2307.382(C).
Rose asserts that § 2307.382(A)(4) applies here because Bersa purportedly
derives “substantial revenues” from selling its guns in “large quantities” to Eagle
Imports, which in turn resells those guns to retailers in Ohio with whom Eagle
Imports has ongoing relationships. (Rose’s Mot. at 7, Doc. 49, #506). As Bersa points
out, though, Rose does not allege any of this in her Complaint or Amended Complaint.
Rather, she states it in her Motion for Jurisdictional Discovery, which (as discussed
above) the Court construes as a Response to Bersa’s Motion to Dismiss. (See id.). In
any event, Rose ultimately does not appear to stand by the assertions in her nonpleading papers that Bersa derives “substantial revenue” from its guns sold into Ohio.
Immediately after making the claim, she states she must “ conduct discovery in order
to ascertain the full extent of Bersa’s business contacts with Ohio, including the
number of its guns that have been sold in Ohio, the amount of revenue it has derived
from guns sold in Ohio, and the nature of its relationship with Eagle Imports … .”
(Id.).
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In some ways, that puts the cart before the horse. The Court’s authority to
require Bersa to participate in discovery derives, at least to some extent, from the
Court’s jurisdiction over the company in the first instance. A prima facie case of
jurisdiction, at the very least, is required to support the exercise of such power. A
district court in this Circuit explained that very point in denying a party
jurisdictional discovery:
Jurisdiction is power. Without jurisdiction, the Court lacks power to
order parties (either parties to the case or third parties) to comply with
discovery requests or subpoenas.
May v. Wal-Mart Stores, Inc., 751 F. Supp. 2d 946, 954 (E.D. Ky. 2010). Just so. A
plaintiff’s bare assertion that “I think the Court might have jurisdiction over the
defendant, and so the Court should order the defendant to participate in discovery to
prove that point” doesn’t cut it.
In saying this, the Court acknowledges the oft-repeated admonition that courts
always have jurisdiction to determine their own jurisdiction. See, e.g., United States
v. Shipp, 203 U.S. 563, 573 (1904). That principle is certainly true, but does not fully
answer the question here. To be sure, the Court has the power to determine its own
jurisdiction, but it is a separate inquiry as to whether the Court has the power to
order other parties to participate in the Court’s inquiry in that regard. If Rose had
provided some reasonable basis in her Amended Complaint for believing that
jurisdiction exists—a prima facie case of jurisdiction—the analysis would be
different. But absent that, the Court declines Rose’s request to exercise judicial power
over Bersa to force the latter to participate in discovery.
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That is especially true here, as, even if the Court were inclined to put aside
Rose’s failure to offer any allegations about Bersa’s activities in Ohio in her pleadings,
and likewise were inclined to treat the statements in her briefs as actual allegations
of fact in her pleadings, rather than a collection of might-be’s offered as argument,
Rose’s argument fails for yet another independent reason. In particular, she does not
allege that Bersa caused a tortious injury in Ohio. Indeed, Rose does not say where
her injury occurred at all. That omission is independently fatal to her argument under
§ 2307.382(A)(4) of Ohio’s long-arm statute. Malone v. Stanley Becker & Decker, Inc.,
965 F.3d 499, 502 (6th Cir. 2020) (quoting Jackson v. State St. Bank & Tr. Co., 674
N.E.2d 706, 710 (1996) (“A determination of long-arm jurisdiction under
[§] 2307.382(A)(4) first entails a finding that the tortious injury occurred in Ohio.”)).
Nor can her answer on this front be that she needs discovery from Bersa to address
the issue. Clearly, Rose knows where her injury occurred. Having failed to provide
that information, she has not satisfied the requirements for jurisdiction under
§ 2307.382(A)(4).
For either, or both, of these reasons, Rose fails to carry her burden of making
even a prima-facie showing that Bersa is subject to suit under Ohio’s long-arm
statute. Accordingly, the Court GRANTS Bersa’s Motion to Dismiss for lack of
personal jurisdiction and DENIES Rose’s request for jurisdictional discovery.
B.
Eagle Import’s Motion For Judgment On The Pleadings.
In Eagle Imports’ Motion for Judgment on the Pleadings, Eagle Imports makes
two arguments, only one of which the Court elects to reach at this juncture. In that
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argument, Eagle Imports first claims that Ohio’s choice of law rules compel the
conclusion that only Ohio law applies in this case. And, given that Ohio law controls
(or so Eagle Imports says), Ohio’s ten-year statute of repose bars Rose’s current claim
as untimely. (Eagle Imports’ Mot. at #381 (citing Ohio Rev. Code § 2305.10(c)(1))).
Eagle Imports supports that argument by reference to the Invoice that Eagle Imports
attached to its Answer, which indicates that Eagle Imports sold 50 Bersa guns—
including the one that allegedly injured Rose—to non-party Jerry’s Sport Center in
Forest City, Pennsylvania, in February 2003. (See Invoice, Doc. 38). The Invoice also
purportedly shows that Eagle Imports then shipped those Bersa guns to Outdoor
Sports Headquarters (apparently an affiliate of Jerry’s Sport Center) in Dayton, Ohio,
on or around April 8, 2003. (See id.). Eagle Imports says that its delivery of the gun
to Outdoor Sports Headquarters, rather than that entity’s sale to a subsequent
purchaser, is what triggered the ten-year repose period, which had thus lapsed as of
the time Rose was injured on August 8, 2015.
In response to Eagle Imports’ Motion, Rose filed two briefs, both of which
address Eagle Imports’ arguments and request miscellaneous relief from the Court.
(See Rose’s Mots., Docs. 48, 49). As relevant to the argument above, Rose moves to
strike the Invoice because, Rose argues, it is not a “written instrument” as
contemplated by Rule 10(c), and Eagle Imports has not authenticated the Invoice,
and so the Court cannot properly consider the Invoice at the pleading stage. (Id. at
#474). Rose then requests that, in the event that the Court does not strike the Invoice,
the Court should instead treat Eagle Imports’ Motion for Judgment on the Pleadings
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as a motion for summary judgment. (Id. at #475). Finally, Rose requests the Court to
permit discovery so that she may properly respond to Eagle Imports’ argument that,
under Ohio’s conflict-of-law rules, Ohio law applies to this case. (Id. at #476).
As this description reveals, determining whether Eagle Imports is entitled to
judgment on the pleadings on this argument involves two separate inquiries. First,
the Court must determine whether Ohio’s ten-year statute of repose applies to this
case. Second, if so, the Court must address whether the Invoice on which Eagle
Imports relies in support of its request for judgment on the pleadings is both
(1) properly considered at this juncture, and (2) fatal to Rose’s claim. The Court starts
by setting forth the standard of review that applies at this stage of the proceeding,
and then considers each of these issues in turn.
1.
Standard of Review.
A motion for judgment on the pleadings under Federal Rule of Civil Procedure
12(c) is analyzed in the same manner as a motion to dismiss under Rule 12(b)(6). See
Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008). This
means all factual allegations in the complaint are construed in a light most favorable
to the plaintiff, with all their allegations accepted as true, and all reasonable
inferences drawn in their favor. See Bullington v. Bedford Cnty., 905 F.3d 467, 469
(6th Cir. 2018). All a plaintiff need do is provide “a short and plain statement of the
claim showing that the pleader is intitled to relief.” Keys v. Humana, Inc., 684 F.3d
605, 608 (6th Cir. 2012) (quoting Fed. R. Civ. P. 8(a)(2)).
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But that short and plain statement must offer more than mere “labels and
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “‘[A] formulaic recitation of
the elements of a cause of action will not do.’” Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). There must be “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S.
at 570). This means a complaint must contain “either direct or inferential allegations
respecting all material elements to sustain recovery under some viable legal theory.”
Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008) (quotation omitted).
“Conclusory allegations or legal conclusion masquerading as factual allegations will
not suffice.” Id. (citing Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)). In sum,
an action will be dismissed under this standard where “there is no law to support the
claims made.” Stew Farm, Ltd. v. Nat. Res. Conservation Serv., 967 F. Supp. 2d 1164,
1169 (S.D. Ohio 2013) (citing Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702
(6th Cir. 1978)). The same holds where “the facts alleged are insufficient to state a
claim.” Id.
2.
Only Ohio Law Applies To Rose’s Amended Complaint.
The Court must first determine whether Ohio’s statute of repose applies to
Rose’s claim. In diversity cases, federal courts apply the conflict-of-law rules of the
state where the court sits. Klaxon Co. v. Stentor Elec. Mfg, 313 U.S. 487, 496 (1941).
Ohio, the forum State here, has adopted the two-step approach set forth in the
Restatement (Second) of Conflict of Laws. Morgan v. Biro Mfg. Co., 474 N.E.2d 286,
288 (Ohio 1984). The first step is to determine if there is an actual conflict between
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the substantive laws of the states involved. Glidden v. Lumbermens Mut. Cas. Co.,
861 N.E.2d 109, 115 (2006). A conflict must exist between the laws of the states for
the Court to proceed to the next step, which is to choose between them. Morgan, 474
N.E.2d at 288–89.
The parties do not appear to dispute that a conflict exists between the two
states’ laws at issue here. Ohio law includes a statute of repose that bars product
liability claims against the product’s supplier when the allegedly faulty product was
“delivered to its first purchaser” more than ten years before the injury. Ohio Rev.
Code § 2305.10(C)(1). New Jersey has no such statute of repose. And the Sixth Circuit
has suggested that state statutes of repose are substantive in nature and not “just a
procedural hurdle.” Huddleston v. United States, 485 F. App’x 744, 745–46 (6th Cir.
2012). To the extent that is the case (more on that below), the first step of Ohio’s
conflict-of-law analysis has been met.
At the second step in Ohio’s choice-of-law framework, the Court must
determine which of the two state’s laws to apply. To make that assessment, Ohio law
provides that the Court should follow the approach set forth in the Restatement
(Second) of the Law of Conflicts § 146, which states:
In an action for a personal injury, the local law of the state where the
injury occurred determines the rights and liabilities of the parties,
unless, with respect to a particular issue, some other state has a more
significant relationship … to the occurrence and the parties, in which
event the local law of the other state will be applied.
Restatement (Second) of Conflicts § 146 (1971); see also Morgan, 474 N.E.2d at 288
(applying Ohio choice-of-law provisions).
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In other words, courts start with “a presumption … that the law of the place of
the injury controls, unless another jurisdiction has a more significant relationship to
the lawsuit.” Morgan, 474 N.E.2d at 289. In assessing whether another state has the
more significant relationship, a court is to “consider the general principles set forth
in Section 145,” which include:
(1) the place of the injury; (2) the place where the conduct causing the
injury occurred; (3) the domicile, residence, nationality, place of
incorporation, and place of business of the parties; (4) the place where
the relationship of the parties, if any, is located; and (5) any factors
under Section 6 [of the Restatement (Second) of Conflicts] that the Court
may consider relevant.
Id. (footnotes omitted); see also Clay v. AIG Aerospace Ins. Servs., Inc., No. 3:14-cv2537, 2015 WL 4986397, at *3 (N.D. Ohio Aug. 19, 2015) (same) (first citing Morgan,
474 N.E.2d at 289, then Restatement (Second) of Conflicts § 145 (1971)). “All of these
factors are to be evaluated according to their relative importance to the case.”
Morgan, 474 N.E.2d at 289.
That framework presents somewhat of a problem here, as Rose does not allege
where her injury occurred. Indeed, Rose says precious little about any geographic
aspect of this case in her Amended Complaint, beyond her nebulous allegation that
“a substantial amount of events giving rise to this claim occurred within the Southern
District of Ohio.” (Id. at ¶ 2, #323). Absent information about where the injury
occurred, of course, no presumption can arise as to which state’s law controls based
on that factor. The only other information she supplies at least seems to suggest that
the only “significant relationship” is to Ohio, where a “substantial amount” of the
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relevant events occurred. Thus, absent evidence to the contrary, her Amended
Complaint would suggest that Ohio law controls.
The only factor that may cut another way based on Rose’s allegations is factor
three, the domicile of the parties. Rose alleges that Eagle Imports is domiciled in New
Jersey. The problem in relying on that allegation to find that New Jersey law should
apply, though, is that the Restatement (Second) of Conflicts provides that, in product
liability cases, the importance of a given party’s place of business or domicile will
usually carry little weight absent some other contacts from that state that “group”
together to create a more meaningful connection between the case and that state.
Restatement (Second) of Conflicts § 145, cmt. e. So, Eagle Imports being
headquartered in New Jersey is of little import to the current analysis, absent some
other meaningful connection to that state, which Rose’s Amended Complaint does not
identify. And Rose (the other relevant party in the conflict analysis) is domiciled in
Ohio, where (as already noted) she alleges a substantial amount of the events
underlying the lawsuit occurred. Thus, this factor likewise seems to suggest that Ohio
law should control.
Finally, § 6 of the Restatement further directs the Court to consider the
relevant policies of all interested states and choose the law of the “state which will
best achieve the basic policy, or policies, underlying the particular field of law
involved.” Id. at § 6, cmts. f, h. Here, Ohio undoubtedly has interests in protecting its
citizens from defective products, see Morgan, 474 N.E.2d at 289 (“It is without
question that [Ohio] has an important policy objective in deterring the manufacture
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and sale of defective products.”) (citations omitted), but Ohio also has an interest in
providing reasonable limits on the liability of parties who sell goods to persons in the
state. See Groch v. Gen. Motors Corp., 117 Ohio St. 3d 192, at ¶ 170 (Ohio 2008)
(noting that Ohio’s statute of repose serves to protect defendants from “exposure to
disruptive and protracted liability”). The particular law at issue here—Ohio’s statute
of repose as to product liability actions—balances the tensions between those
sometimes-competing policies. See id.; CTS Corp. v. Waldburger, 573 U.S. 1, 9 (2014)
(“Statutes of repose effect a legislative judgment that a defendant should be free from
liability after the legislatively determined period of time.”). More specifically, Ohio
has decided to limit the potential liability of those sending products into the state (to
protect potential defendants) and set that limit at ten years (to balance the interests
of both potential plaintiffs and defendants). This Court sitting in a diversity matter
arising out of Ohio must respect Ohio’s policies, as well as the interests that drove
those policies. This is particularly true under the current circumstances, where an
out-of-state defendant (Eagle Imports) may have relied on such a liability limitation
when considering whether to conduct business in Ohio in the first place. Accordingly,
the principles set forth in § 6 further support applying Ohio law here.
In contrast, consideration of those same principles from the perspective of New
Jersey suggests that New Jersey has no significant interest in this case—and
certainly no interests that overcome Ohio’s interests identified above. There is no
clear reason why New Jersey’s legislative policies would be intended to affect the
parties that are before the Court on the issues presented here. While New Jersey may
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arguably have some interest in enforcing its law against its own corporate residents
when the products those resident corporations sell injure non-resident customers,
that interest, if it exists at all here, “is only slight and does not support application of
its law to the litigation.” Hughes v. Wal-Mart Stores, Inc., 250 F.3d 618, 621 (8th Cir.
2001). In short, New Jersey has no significant interest in applying its law so that a
non-resident plaintiff (Rose), who was injured by a product manufactured in another
country and not sold within New Jersey, may nonetheless hold a New Jersey
corporation (Eagle Imports) liable in derogation of Ohio’s time limits on products
liability claim. Thus, § 6, when applied to the New Jersey side of the scale, still favors
the application of Ohio law.
As Rose has failed to identify any state that has a more significant interest
than Ohio in the issues presented here, the Court must apply Ohio law, including
Ohio’s ten-year statute of repose.
All of the above presupposes that the traditional conflict-of-law analysis
applies to statutes of repose. But that may not be the case. A different conflict-of-law
analysis often applies to timeliness issues (e.g., statutes of limitations), especially if
a state has enacted a so-called borrowing statute. Ohio has done so. See Ohio Rev.
Code § 2305.03. As further explained below, if that borrowing statute applies to
statutes of repose, then Ohio’s ten-year statute of repose governs here, even if the
Court is wrong and it is New Jersey law, rather than Ohio law, that supplies the
substantive product liability rules that govern Rose’s claim.2
The parties did not raise Ohio’s borrowing statute, or the impact that it may have on the
application of Ohio’s statute of repose. The Court nonetheless finds it necessary to address
2
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To see why that is the case, let’s start with the typical statute-of-limitations
analysis. The general common law rule was that Ohio’s statute of limitations
governed cases filed in Ohio courts, even if, under conflict-of-law principles, the law
of a different state (say New Jersey) supplied the substantive rules of decision for the
claim at issue. Historically, that was because limitations periods were treated as
procedural matters, rather than substantive matters, and thus “are, and must be,
governed by the law of the forum,” Taylor v. First Resolution, 72 N.E.3d 573, 585
(Ohio 2016), sometimes referred to as the lex fori. See, e.g., Logan v. MGM Grand
Detroit Casino, 939 F.3d 824, 829 (6th Cir. 2019) (“‘Ordinary limitations of actions
are treated as laws of procedure, and as belonging to lex fori, as affecting the remedy
only, and not the right.’”) (quoting Davis v. Mills, 194 U.S. 451, 454 (1904)). Under
that approach, Rose’s action would be governed by the Ohio statute of limitations,
even if under traditional choice of law principles New Jersey law supplied the
substantive product liability rules of decision.
But against that common law backdrop, many states, including Ohio, began
imposing a legislative gloss. In particular, wary of forum shopping (where the
plaintiff would bring her suit in State B, even though asserting claims under the law
of State A, merely because State B had a longer limitations period than State A), state
that issue. That is because, as explained more fully below, the Court concludes that, as a
matter of law, Ohio’s borrowing statute, rather than Ohio’s general conflict-of-law
framework, is what governs as to the repose period. Thus, Rose’s request for discovery to
substantiate her argument that the conflict-of-law framework supports application of New
Jersey law is moot. (See Doc. 48). Even if such discovery would assist her in showing that
New Jersey law would supply the substantive product liability rules, that does not change
the result regarding the statute of repose, a statute which may well prove dispositive of her
claim.
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legislatures enacted borrowing statutes to serve as “a legislative exception from the
general rule that the forum always applies its statute of limitation.” Combs v. Int’l
Ins. Co., 354 F.3d 568, 578 (6th Cir. 2004). To that end, Ohio’s borrowing statute
provides:
No civil action that is based upon a cause of action that accrued in any
other state … may be commenced and maintained in this state if the
period of limitation that applies to that action under the laws of that
other state … has expired or the period of limitation that applies to that
action under the laws of this state has expired.
Ohio Rev. Code § 2305.03(B). In other words, at least as to statutes of limitations, the
rule in Ohio is that, if another state’s substantive law applies to the underlying claim,
then Ohio courts must use the shorter limitations period, as between Ohio’s and that
of the other state.
For example, assume that here the conflict-of-law analysis said that New
Jersey law should govern the product liability claim. If New Jersey had a one-year
statute of limitations for products liability claims, and Ohio had a two-year statute of
limitations, Ohio’s borrowing statute would direct an Ohio court to use New Jersey’s
limitations period. Conversely, if the limitations periods of the states involved were
reversed, with Ohio having the one-year period, and New Jersey the two-year period,
then Ohio’s statute of limitations would apply. In short, the forum state’s borrowing
statute, not its general conflict-of-law principles, nor the tradition of relying on lex
fori as to procedural matters, is what determines which limitations period applies,
and Ohio’s statute says “use the shorter one.”
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But does the borrowing statute apply to statutes of repose? What muddies the
water a little on that front is that, unlike statutes of limitations, which are typically
considered “procedural,” statutes of repose, as noted above, are often referred to as
“substantive.” See Huddleston, 485 F. App’x at 745–46. If that is so, the traditional
notion that lex fori controls as to procedural rules (or at least did so pre-borrowing
statutes) may not apply to statutes of repose, and the legislative change to the lex fori
principle imposed through enactment of borrowing statutes may thus have been
limited to procedural time periods (i.e., limitations periods), rather than repose
periods.
The Sixth Circuit’s precedent on this point is limited and somewhat
contradictory. On the one hand, the appeals court has observed (in passing in a
footnote) that “[b]orrowing statutes apply to both foreign statutes of limitation and
statutes of repose, because both kinds of laws serve to limit the period in which a
plaintiff may initiate an action.” Combs, 354 F.3d at 589 n.11. But more recently, in
Wahl v. Gen. Elec. Co., 786 F.3d 491 (6th Cir. 2015), the court conducted a
hypothetical3 conflict-of-law analysis under Ohio conflict-of-law principles, and
seemingly suggested that the result of that conflict-of-law analysis (which in Wahl
said Tennessee law should apply) would also govern as to the statute of repose, just
like any other substantive law. Id. at 500 (“Ohio’s choice of law requires the
application of Tennessee law and its one-year statute of repose.”) (emphasis added).
And the court reached that result without discussing Ohio’s borrowing statute,
The Court characterizes the Sixth Circuit’s analysis on this issue in Wahl as hypothetical,
because the Court actually held that Tennessee choice-of-law provisions governed.
3
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suggesting (at least tacitly) that the borrowing statute would not apply to the whichstatute-of-repose question. At the same time, the Court must take care not to
overread Wahl. As already noted, the discussion of the issue there was, at best, an
alternate ground of affirmance. And, at bottom, the answer to the proper treatment
of statutes of repose under Ohio’s borrowing statute is a matter of construing that
statute, an issue that the Wahl court did not explicitly address, but to which the Court
turns now.
As noted above, Ohio’s borrowing statute says that the shorter of the two
“period[s] of limitation” applies, so the question is whether the ten-year repose period
set forth in § 2305.10 is a “period of limitation” for purposes of § 2305.03(B)’s shorterof-the-two rule. Section 2305.03(A) of the borrowing statute strongly suggests that
the answer to that question is “yes.” That section says that “unless a different
limitation is prescribed by statute,” actions must be commenced within the “periods”
“prescribed in sections 2305.04 to 2305.22.” Ohio Rev. Code § 2305.03(A). Relying on
that plain language, it appears that any “period” that is “prescribed in” those sections
(i.e., §§ 2305.04 to 2305.22) as limiting a party’s right to bring suit, is a “period of
limitation” for purposes of § 2305.03. The statute of repose at issue here is a “period”
specified in § 2305.10, which is a section that falls between §§ 2305.04 and 2305.22.
Accordingly, that period constitutes a “period of limitation,” and is subject to the
shorter-of-the-two-periods rule set forth in § 2305.03(B).
As that is the case, even if Ohio’s conflict-of-law principles result in New Jersey
law applying to the product liability claim, under the shorter-of-the-two-periods rule
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in Ohio’s borrowing statute, Ohio’s ten-year statute of repose would apply in place of
New Jersey’s non-existent period of repose. In sum, even if the Court is wrong in its
conflict-of-law analysis, and New Jersey’s (rather than Ohio’s) product-liability law
controls, Rose’s product-liability claim under New Jersey law would still be subject to
Ohio’s ten-year statute of repose for such claims, as she has elected to advance that
New Jersey claim in an Ohio forum, which is subject to Ohio’s borrowing statute.
3.
The Parties Must Conduct Limited Discovery To Determine
Whether The Invoice That Eagle Imports Attached To Its
Answer Is Authentic.
Given that Ohio’s statute of repose applies to Rose’s claim (whether as a matter
of general choice-of-law principles or under Ohio’s borrowing statute), the final issue
the Court addresses is Eagle Imports’ argument that the Invoice that Eagle Imports
attached to its Answer warrants judgment on the pleadings in Eagle Imports’ favor
under that statute. According to Rose, the argument is a non-starter—because Eagle
Imports never authenticated the Invoice, the Court cannot consider it here. For the
reasons below, the Court finds that Rose’s argument has merit. As a result, the Court
does not grant judgment to Eagle Imports at this time. But, as the ten-year repose
period appears to have a strong potential to be a case-dispositive issue, the Court
directs the parties to engage in limited discovery addressed to that specific issue, so
the Court can address that matter before the case proceeds more generally.
In ruling on Rule 12(b) or 12(c) motions, the Court considers the pleadings,
which include the Complaint, Answer, and any written instruments attached as
exhibits to those documents. Roe v. Amazon.com, 170 F. Supp. 3d 1028, 1032 (S.D.
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Ohio 2016) (citing Fed. R. Civ. P. 7(a), 12(c)); see also Fed. R. Civ. P. 10(c) (“A copy of
a written instrument that is an exhibit to a pleading is part of the pleading for all
purposes.”). The Sixth Circuit has broadly interpreted Rule 10(c)’s “written
instrument” language to allow consideration of documents “referred to in the
pleadings” and “integral to the claims without converting a motion to dismiss into one
for summary judgment.” Fulton v. Enclarity, Inc., 962 F.3d 882, 890 (6th Cir. 2020)
(quoting Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 335–36 (6th
Cir. 2007)) (cleaned up). But even then, the Court may not consider such documents
at the pleading stage if one of the parties questions the authenticity of the documents.
Williams v. Sterling Jewelers, Inc., No. 1:19-cv-70, 2019 WL 5587025, at *2–3 (S.D.
Ohio Oct. 30, 2019), adopted, 2020 WL 42815 (S.D. Ohio Jan. 3, 2020).
Here, Eagle Imports has not attempted to authenticate the Invoice. Thus, as
Rose has questioned the authenticity of that document (see Doc. 48 at 3–5, #473–75),
the Court cannot consider it in reviewing Eagle Imports’ Motion for Judgment on the
Pleadings.
That leaves the Court in a bit of a quandary, because if Eagle Imports can
establish that the Invoice is authentic, the Invoice, as Eagle Imports argues, would
appear to be fatal to Rose’s product liability claim given Ohio’s statue of repose. That
statute provides:
[N]o cause of action based on a product liability claim shall accrue
against the manufacturer or supplier of a product later than ten years
from the date that the product was delivered to its first purchaser or
first lessee who was not engaged in a business in which the product was
used as a component in the production, construction, creation, assembly,
or rebuilding of another product.
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Ohio Rev. Code § 2305.10(c)(1). That is, the statute essentially consists of three
elements. It bars claims against (1) manufacturers or suppliers, (2) if brought more
than ten years after the date of delivery, to (3) a purchaser or lessee who is not using
the product as a component in the production or creation of some other product. Id.
Eagle Imports argues in its Motion that the statute bars Rose’s claim because:
(1) Eagle Imports is a “supplier”, (2) Eagle Imports delivered the handgun at issue to
Outdoor Sports on April 8, 2003—more than 12 years before Rose suffered her alleged
injuries, and (3) Rose does not (and cannot) allege that Outdoor Sports engaged in
business in which it used the handgun as a component part of another product.
Based on the allegations in Rose’s Amended Complaint, the Court agrees with
Eagle Imports that the first and third elements of the statute of repose are met here.
But to resolve Eagle Imports’ contention regarding the second factor (i.e., that it
delivered the handgun to Outdoor Sports on April 8, 2003), the Court would need to
consider the unauthenticated Invoice. For the reasons discussed above, the Court
cannot do so.
Hence the quandary—the Court agrees with Rose that discovery is necessary
to determine the authenticity of the Invoice, but resolving that specific issue may well
be dispositive on the viability of Rose’s claim. Thus, in the interests of justice and in
an effort to pursue the most efficient resolution of this matter, the Court limits
discovery—for the time being—to the specific issue of the Invoice’s authenticity.
Accordingly, the Court GRANTS IN PART Rose’s Motion for Discovery and
CONVERTS IN PART Eagle Imports’ Motion for Judgment on the Pleadings to a
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Motion for Summary Judgment on the narrow issue of whether Ohio’s statute of
repose bars Rose’s claims. If Eagle Imports can carry its burden of authenticating the
Invoice, then, unless Rose can create a genuine issue of material fact on that front or
a genuine issue as to whether that Invoice accurately reflects the delivery date of the
handgun at issue here, or can otherwise convince the Court that for some other reason
Ohio’s statute of repose does not bar the claim here, Eagle Imports will be entitled to
summary judgment.
CONCLUSION
For the reasons above, the Court GRANTS Bersa’s Motion to Dismiss
(Doc. 39), GRANTS IN PART Eagle Imports’ Motion for Judgment on the Pleadings
(Doc. 44), GRANTS IN PART Rose’s Motion for Discovery and for Extension of Time
to File Responses (Doc. 48), DENIES Rose’s Motion for Jurisdictional Discovery (Doc.
49), and DISMISSES Rose’s Amended Complaint (Doc. 37) as it relates to her claims
against Bersa for lack of jurisdiction. In accordance with this Opinion, the Court
further DIRECTS Rose and Eagle Imports to conduct discovery on the narrow issue
of the Invoice’s authenticity and CONVERTS Eagle Imports’ Motion for Judgment
on the Pleadings to a Motion for Summary Judgment on the remaining question of
whether Ohio’s statute of repose bars Rose’s claim. The parties are directed to confer
with each other, and to inform the Court of an appropriate timetable for completing
such discovery and providing supplemental briefing to the Court on the issues
identified immediately above. If the parties are unable to reach an agreed resolution
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regarding such scheduling, they are directed to contact the Court to set a status call
in this matter.
SO ORDERED.
August 31, 2020
DATE
DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
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