Ellison v. Kaseman Staffing et al

Filing 56

ORDER granting 37 Motion to Dismiss; granting 40 Motion to Dismiss for Lack of Jurisdiction; granting 29 Motion to Dismiss. Signed by Honorable Timothy M Cain on 11/16/2012.(gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
TED MILES ELLISON,
Plaintiff,
v.
KASEMAN, LLC; CADDELL
CONSTRUCTION COMPANY;
CONTINENTAL INSURANCE COMPANY,
successor by merger to FIDELITY &
CASUALTY COMPANY OF NEW YORK,
Defendants.

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Case No. 6:11-cv-03310-TMC
ORDER

This matter is before the court on motions to dismiss by all three defendants – Caddell
Construction Company (Caddell), Continental Insurance Company (Continental), and Kaseman,
LLC (Kaseman). (Dkt. Nos. 29, 37, 40.) The plaintiff has filed responses to all three motions
(Dkt. Nos. 42, 43, 51) and the defendants have replied to those responses (Dkt. Nos. 49, 50, 54).
For the reasons set forth below, the defendants’ motions are granted.
I. Background & Procedural History
The plaintiff, Ted Miles Ellison (Ellison), brought this action pro se1 on December 6,
2011, alleging that, on September 12, 2007, while working for Caddell, a Kaseman employee
stabbed him in his sciatic nerve with a hypodermic needle filled with an unknown substance in
an effort to cover up a work-related injury. (Dkt. No. 1.) Ellison further alleges that, pursuant to
an agreement between Caddell and Continental, Caddell and Kaseman employees instructed him
to fill out the insurance paperwork in a particular way and threatened his freedom if he did not
comply.

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Although Ellison originally brought this case pro se, he has been represented by counsel since May 23, 2012.

This, however, is not the first time the court has reviewed this case. Ellison originally
filed suit in this court against only Caddell, on November 30, 2009, seeking damages from the
same incident alleged here. Pro Se [Non-Prisoner] Complaint, Ellison v. Caddell Construction
Co. Inc., C/A No. 6:09-cv-03093 (D.S.C. Nov. 30, 2009) (Dkt. No. 1). But, on November 28,
2011, Ellison moved this court to dismiss his case, claiming that he had sued the wrong party.
Plaintiff’s Motion to Dismiss,  Ellison v. Caddell Construction Co. Inc., C/A No. 6:09-cv-03093
(D.S.C. Nov. 28, 2011) (Dkt. No. 145). The court granted the motion and dismissed the original
action on November 29, 2011. Order, Ellison v. Caddell Construction Co. Inc., C/A No. 6:09-cv03093 (D.S.C. Nov. 29, 2011) (Dkt. No. 146). The current complaint, filed only one week later,
adds Kaseman and Continental as defendants, but otherwise states the same claim. Ellison
contends that he dismissed the original action because Caddell fraudulently informed him that he
brought the suit against the wrong entity. (Dkt. No. 42 ¶ 3.)
The defendants have moved to dismiss the present matter. In their respective motions, all
three defendants assert that the Defense Base Act is Ellison’s exclusive remedy,2 insufficiency of
process and ineffective service, failure to state a claim, and that Ellison’s claim is barred by the
statute of limitations. In their motions, Caddell and Kaseman also raise the defense of res
judicata. And, Kaseman raises the additional defense of lack of personal jurisdiction. The court
agrees that Ellison’s claim is time barred and, therefore, does not make any judgment as to the
defendants’ other claims and defenses.
II. Legal Standard
In South Carolina, a plaintiff must commence “an action for assault, battery, or any injury
to the person or rights of another” within three years “after [he] knew or by the exercise of

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Ellison has already sought and been awarded ongoing temporary total disability DBA benefits in connection with
his injuries. See Ellison v. Caddell Constr., Inc., No. 2008-LDA-00359, slip op. at 27 (U.S. Depart. of Labor, ALJ
Dec., Dec. 4, 2009).

reasonable diligence should have known that he had a cause of action.” S.C. Code Ann. § 15-3530(5), 535. “South Carolina courts require an injured party to ‘act with some promptness where
the facts and circumstances of an injury would put a person of common knowledge and
experience on notice that some right of his has been invaded or that some claim against another
party might exist.’” Collins v. R.J. Reynolds Tobacco Co., 901 F. Supp. 1038, 1045-46 (D.S.C.
1995) (quoting Snell v. Columbia Gun Exchange, Inc., 276 S.C. 301, 303 (1981)).
When multiple parties may be at fault, “[t]he important date under the discovery rule is
the date that a plaintiff discovers the injury, not the date of the discovery of the identity of
another alleged wrongdoer.” Tollison v. B & J Machinery Co., Inc., 812 F. Supp. 618, 620
(D.S.C. 1993) (injured employee not permitted to assert claim against employer’s insurer based
on theory that insurer’s negligence led to employee’s injuries where claim was made in amended
complaint filed three years after the date of injury, even though insurer’s identity was unknown
to employee until later).
Additionally, “[w]hen an action is dismissed without prejudice, the statute of limitations
will bar another suit if the statute has run in the interim.” Davis v. Lunceford, 287 S.C. 242, 243
(1985) (citing Don Shevey & Spires, Inc. v. American Motors Realty Corp., 279 S.C. 58 (1983)).
III. Discussion
The court reads Ellison’s complaint to allege assault, battery, and other claims related to
an injury to his person and rights.3 Therefore, Ellison’s case falls under the three-year statute of
limitations set forth in South Carolina Code sections 15-3-530(5) and 15-3-535. According to

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To the extent that Ellison’s subsequent filings assert a conspiracy claim (see Dkt. No. 42 ¶ 3), the court does not
read the complaint to include this claim on its face, even under the liberal standard we apply to pro se complaints,
and, to the extent that he alleges fraud in the underlying incident, that claim is also barred by South Carolina’s threeyear statute of limitations, S.C. Code Ann. § 15-3-530(7). If Ellison is now alleging fraud against Caddell related to
the dismissal of his prior case, that claim does not appear anywhere in his complaint, and thus does not impact the
court’s ruling on the complaint and motions currently before it.

Ellison’s complaint, the alleged incident took place on September 12, 2007. The court believes
that Ellison, or any person of common knowledge and experience, would know that he had a
claim against someone on the date of the incident on the facts alleged in the complaint. So, the
applicable limitations period for Ellison’s claim ran on September 12, 2010.
Ellison filed his original action within this time period, but only against Caddell.
Kaseman and Continental, thus, did not have notice of the action until Ellison filed the present
complaint on December 6, 2011, well after the end of the limitations period. As evidenced by
his prior suit, Ellison knew that he had a claim against someone before the limitations period ran.
South Carolina law does not allow a court to toll a limitations period until an injured party
identifies all responsible parties, but instead the period continues to run from the date the party
discovers the injury, despite any unknown potential defendants.

Therefore, the statute of

limitations clearly bars Ellison’s claim against Kaseman and Continental and, accordingly,
Kaseman’s and Continental’s motions to dismiss are granted.
Additionally, although Ellison filed his original suit against Caddell within the limitations
period, the statute of limitations ran while that suit was pending. So, according to South
Carolina law, when Ellison voluntarily dismissed that suit, he lost his right to subsequently refile the same claim. Therefore, the statute of limitations also bars Ellison’s claim against Caddell
and, accordingly, Caddell’s motion to dismiss is granted.
The court also notes that, in two of his responses to the defendants’ motions to dismiss,
Ellison references Federal Rule of Civil Procedure 60(b). (Dkt. Nos. 42 ¶ 4, 51 ¶ 4.) To the
extent that these references can be construed as 60(b) motions, they are denied as moot in light of
the court’s ruling on the statute of limitations issue.

IV. Conclusion
For the foregoing reasons, the defendants’ motions to dismiss (Dkt. Nos. 29, 37, 40) are
GRANTED.
IT IS SO ORDERED.
s/ Timothy M. Cain
United States District Judge
Anderson, South Carolina
November 16, 2012