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Lee v. Airgas-Mid South, Inc.

United States District Court, W.D. Arkansas, Fayetteville Division

August 11, 2014

DARREN LEE, Plaintiff,
v.
AIRGAS-MID SOUTH, INC., and JOHN DOES 2-10, Defendants.

ORDER AND OPINION

P.K. HOLMES, III, District Judge.

Before the Court are Defendant Airgas-Mid South, Inc.'s ("Airgas") motion to dismiss for failure to state a claim (Doc. 21) and brief in support (Doc. 22), Plaintiff Darren Lee's response (Doc. 23) and brief in support (Doc. 23-1), and Airgas's reply to Lee's response (Doc. 27), filed with leave of the Court. Airgas also filed a motion for a hearing on its motion to dismiss (Doc. 30), and Lee has filed a response (Doc. 31) in opposition. For the reasons set forth below, Airgas's motion to dismiss will be GRANTED and its motion for a hearing will be DENIED AS MOOT.

I. Jurisdiction

Earlier in this litigation, the Court expressed concern that it might not have subject matter jurisdiction. (Doc. 12). In his second amended complaint, as to Airgas, Lee has pleaded complete diversity and an amount in controversy sufficient to allege the Court's subject matter jurisdiction under 28 U.S.C. § 1332(a). Regarding the John Doe defendants, however, Lee has failed to properly allege diversity jurisdiction as ordered by the Court.[1] Insufficiency of jurisdictional allegations would in most cases be grounds for dismissal of the entire action. In this case, however, a simple read of the second amended complaint, granting all reasonable inferences in Lee's favor, reveals that no factual allegations of any kind are leveled against the John Doe defendants, or against anyone other than Airgas. Therefore, the Court will exercise its authority under Federal Rule of Civil Procedure 21 to preserve diversity jurisdiction by dropping all John Doe defendants from the action as dispensable parties. Fed.R.Civ.P. 21; Buckley v. Control Data Corp., 923 F.2d 96, 97 (8th Cir. 1991). This leaves only Lee and Airgas in an action over which the Court may exercise its jurisdiction.

II. Procedural Background

Lee filed his original complaint on August 20, 2013, naming Victor Technologies International, Inc. ("VTI") and several John Does as defendants. He filed an amended complaint on September 23, 2013, again naming VTI and several John Doe defendants. On December 18, 2013, Lee filed a motion for leave to file a second amended complaint. A proposed second amended complaint was attached and identified Airgas as a potential defendant for the first time, along with Airgas USA, LLC and the remaining John Does. On January 20, 2014, Lee and VTI filed a stipulation of dismissal, leaving only the John Doe defendants named in the original and first amended complaints. On January 21, 2014 the Court denied Lee's motion because the proposed second amended complaint failed to properly allege subject matter jurisdiction. The Court gave Lee until February 3, 2014, to correct the jurisdictional allegations and refile his motion for leave to amend. Lee moved again to file a second amended complaint, this time dropping Airgas USA, LLC from the proposed amended complaint and alleging facts to show diversity of citizenship between himself and Airgas, and the Court granted this motion. Lee's second amended complaint, filed on March 10, 2014, names Airgas (in place of one of the John Doe defendants from the original complaint) and the remaining John Doe defendants.

Airgas now seeks to dismiss the second amended complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that the statute of limitations bars Lee's action. "[W]hen it appears from the face of the complaint itself that the limitations period has run, a limitations defense may properly be asserted through a 12(b)(6) motion to dismiss." Wycoff v. Menke, 773 F.2d 983, 984-85 (8th Cir. 1985) (quotation omitted). Accordingly, the Court "accept[s] as true all facts pleaded by the non-moving party and grant[s] all reasonable inferences from the pleadings in favor of the non-moving party." Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012) (quotation omitted).

III. Discussion

This is a products liability case. In the second amended complaint, Lee alleges that he was in the process of welding his car floorboard using VTI welding equipment attached to an Airgas oxygen tank. While adjusting the oxygen regulator, the hose connecting the oxygen tank to the rest of the welding equipment blew free and a metal fitting from the hose struck Lee in the right eye, blinding him. Lee believes his injury was due in part to a contaminant on the oxygen tank fitting (a white web-like substance) and alleges that the negligent failure of Airgas to include a simple protective cap allowed that contamination.

In a diversity case, the Court applies the relevant state-law statute of limitations. Guar. Trust Co. of N.Y. v. York, 326 U.S. 99, 110 (1945). In Arkansas, a products liability action must be brought within three years after the date of injury. Ark. Code Ann. § 16-116-103. Lee alleges that the injury in this case occurred on August 21, 2010. The second amended complaint-the first explicitly identifying Airgas as a defendant-was filed on February 20, 2014. At first glance, it is apparent from the face of the second amended complaint that the action against Airgas was commenced more than three years after the date of injury. Lee, however, argues that the second amended complaint relates back to the original complaint, and therefore takes the date of the original complaint for calculating limitations periods. The original complaint was filed on August 20, 2013, within the 3-year limitations period. Therefore, if the second amended complaint relates back to the original complaint, application of the statute of limitations would not be apparent from the face of the complaint and Airgas's motion to dismiss should be denied. If the second amended complaint does not relate back, however, then Airgas's motion to dismiss should be granted.

Lee's amendment substituting Airgas for a John Doe defendant can only relate back to the original complaint if the conditions set forth in Federal Rule of Civil Procedure 15(c) are satisfied. Foulk v. Charrier, 262 F.3d 687, 696 (8th Cir. 2001) ("The issue of whether an amended complaint identifying a defendant by name will relate back' to a previously filed complaint against a John Doe' defendant has typically arisen in the context of statute of limitations issues. Such an amendment ordinarily will not be treated as relating back to the prior pleading, unless certain conditions set forth in Fed.R.Civ.P. 15(c) are satisfied."). Because of the mandatory language of Rule 15(c), if those conditions are satisfied, Lee's second amended complaint necessarily relates back. Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 553 (2010). Those conditions are satisfied when (1) the amendment asserts a claim arising out of the same conduct, transaction, or occurrence that the plaintiff attempted to set out in the initial pleading; and (2) within the Rule 4(m) period for service for the original complaint, (i) the party to be added received sufficient notice of the action that it will not be prejudiced by defending on the merits, and (ii) knew or should have known that but for a mistake concerning its identity, the action would have been brought against it originally. Fed.R.Civ.P. 15(c)(1)(C).

The first condition is met. The second amended complaint asserts a claim arising out of the same alleged welding malfunction that caused Lee's injury and for which his original complaint was brought against VTI. The primary dispute in this case is whether the second condition is met. Specifically at issue is whether Airgas had the required timely notice of Lee's action against VTI and the John Doe defendants, and whether Airgas knew or should have known that the original complaint would have been brought against it. Under Rule 4(m), the defendant must generally be served with a summons within 120 days after the complaint is filed. Lee filed his original complaint on August 20, 2013, so the Rule 4(m) period of 120 days extended to December 18, 2013. In order for the allegations against Airgas to relate back to the original complaint, Airgas must have received notice of the action by December 18.

Lee has not alleged that Airgas had notice of the action any earlier than March 10, 2014, when the second amended complaint was served on its agent. (Doc. 17). Lee speculates that maybe a corporate agent or attorney was monitoring court filings for Airgas's name, or maybe one of Airgas's distributors might have said something about the action against VTI, and so maybe Airgas received notice of the action earlier than March 10. Other than this speculation, Lee's filings are devoid of allegations that Airgas had notice earlier than March 10, and in the absence of sufficient factual allegation, speculation is not enough to overcome a motion to dismiss. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Factual allegations must be enough to raise a right to relief above the speculative level."). Lee provides no basis for the Court to infer on this motion to dismiss that Airgas had actual notice earlier than March 10, 2014.[2]

Lee's argument for constructive notice is similarly unavailing. Lee raises "identity of interest" as a basis for imputing VTI's notice to Airgas. In doing so, Lee notes that the exception applies "when the original and added parties are so closely related in business or other activities that it is fair to presume the added parties learned of the institution of the action shortly after it was commenced." Serrano v. Gonzalez, 909 F.2d 8, 12 (1st Cir. 1990) (quoting Hernandez Jimenez v. Calero Toledo, 604 F.2d 99, 102-103 (1st Cir. 1979)). Lee ignores that such a close relationship is generally found "where the original and added parties are a parent corporation and its wholly owned subsidiary, two related corporations whose officers, directors, or shareholders are substantially identical and who have similar names or share office space, past and present forms of the same enterprise, or co-executors of an estate." Hernandez Jimenez, 604 F.2d at 103. Lee does not allege facts supporting that VTI and Airgas have this type of relationship. In fact, as nearly as the Court can determine from the allegations in the complaint and other filings, VTI and Airgas do ...


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