NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0599n.06

                                          No. 10-3419

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                                                                                         FILED
                                                                                    Aug 22, 2011
JEFF WALBURN, KAREN SUE WALBURN,
                                                                              LEONARD GREEN, Clerk
       Plaintiffs-Appellants,
                                                                  On Appeal from the United
               v.                                                 States District Court for the
                                                                  Southern District of Ohio at
LOCKHEED MARTIN UTILITY SERVICES, INC.,                           Columbus

       Defendant-Appellee.




                                                            /

Before:        BATCHELDER, Chief Circuit Judge; GUY and MOORE, Circuit
               Judges

       RALPH B. GUY, JR., Circuit Judge.             Plaintiffs Jeff Walburn and his wife Karen

Sue Walburn appeal from the order dismissing this action against the defendant Lockheed

Martin Utility Services, Inc. (LMUS). Without contesting the dismissal of other claims,

plaintiffs urge us to find error in the district court’s refusal to preclude LMUS from asserting

the statute of limitations as a defense to the state-law intentional tort claim arising out of Jeff

Walburn’s prior employment at the gaseous uranium diffusion plant operated by LMUS.

Plaintiffs sought this relief on the basis of LMUS’s failure to produce five specific

documents during discovery in plaintiffs’ earlier filed action, which allegedly led to the

voluntary dismissal of the earlier case without prejudice. For the reasons that follow, we
No. 10-3419                                                                                                 2

affirm the judgment in favor of LMUS.1

                                                        I.

        In this action, filed in April 2009, plaintiffs reassert essentially the same five claims

that plaintiffs brought in the initial action filed against LMUS almost 13 years earlier in July

1996.2 The district court succinctly summarized the allegations in this case as follows:

        Plaintiff Jeff Walburn alleges that he “was continually employed as a security
        inspector” at that plant “from 1976 through 2008.” Doc. 2, ¶ 13. In this
        position he allegedly was required “to work in and around processes that
        potentially expose[d] him to radiation and various gasses” (Id., ¶ 14), in
        connection with which he and certain other employees were required to submit
        to periodic urinalysis and dosimeter badge monitoring. 

17-20. Jeff
        Walburn alleges that “Defendant altered and/or destroyed . . . thousands of
        dosimeter records [including his] as a part of its regular policy and procedure”
        which has resulted in suspect and untrustworthy records. 

        Further, he alleges that he suffered permanent injuries ultimately requiring
        hospitalization as the result of exposure to certain gasses during a particular
        work assignment on July 26, 1994, after which incident he had received an
        “inadequate examination” by Defendant and was returned to work. 

        30, 32.      Finally, Plaintiffs allege that Defendant’s records of this
        hospitalization episode have been altered. 

Plaintiff alleged that the exposure resulted in a “permanent breathing disorder.” Claims for

breach of contract, violation of federal law, and punitive damages were brought on behalf

of plaintiff and other similarly situated employees. Plaintiffs’ two non-class claims were for

intentional tort and loss of consortium.               Presumably in anticipation of the statute-of-

limitations defense, plaintiffs’ complaint asserted equitable estoppel and alleged that the first



        1
            For ease of reference, Jeff Walburn will be referred to as “plaintiff.”
        2
         Plaintiff also filed a qui tam action, which is not pertinent to the issues in this case. See Walburn
v. Lockheed Martin Corp., 

(6th Cir. 2005) (affirming dismissal of qui tam action based on
allegations and transactions publicly disclosed in the 1996 action).
No. 10-3419                                                                                   3

action would not have been dismissed voluntarily if certain subsequently discovered

documents had been produced in discovery. Defendant did not file an answer, but moved to

dismiss the complaint under Fed. R. Civ. P. 12(b)(6).

       Factually, plaintiffs asserted as the sole basis for avoiding dismissal of the admittedly

tardy claims the following response to one of the requests for production of documents made

in the first case:

       REQUEST TO PRODUCE NO. 5

              Produce any and all notices, internal memorandums, written
       communications or other written materials that discuss the potential exposure
       to security personnel at the uranium gaseous diffusion plant near Piketon, Ohio
       to any of the materials used to shoot a cell.

       RESPONSE: With the exception of those materials contained within Exhibits
       A and B, LMUS is aware of no such documents.

Defendant produced some materials, including documents relating to plaintiff’s own

exposure on July 26, 1994, but denied being aware of other documents discussing the

potential for exposure to security personnel at the plant.       The district court accepted

plaintiffs’ averment that they would not have voluntarily abandoned their earlier lawsuit if

LMUS had produced the five documents that plaintiffs later obtained from other sources.

       Those five documents, attached to plaintiffs’ response to the motion to dismiss, all

predated LMUS’s operation of the plant beginning in July 1993. Briefly, Exhibit 1 purported

to be a safety report dated December 17, 1980, about an incident in which the internal

pressure of a cell was found to be “above atmosphere” and created a potential risk of

exposure to workers issued permits to clean the cell housing. It recommended that the status
No. 10-3419                                                                                          4

of the equipment be checked before permits were issued. Exhibit 2 was a memo dated

September 13, 1989, that instructed foremen to notify the security supervisor before starting

a job in “Area 6” involving a “contamination control boundary.”                    Exhibit 3 was a

consultant’s draft report dated April 5, 1990, that included discussions about cell

maintenance, low inventory of spare seals to repair seal compressor failures, and instances

of employees circumventing compressor seal alarms. Exhibit 4, dated December 8, 1992,

reported an increase in positive bioassay samples for Building X-326 during June 1992,

which was the same building where plaintiff was exposed two years later, and made

recommendations for actions to be taken in response. Exhibit 5, dated March 5, 1993, was

a special air sampling report investigating positive bioassay samples from Building X-326

in 1992, and indicating that corrective action was taken to lower the pressure in the cells.

Plaintiff, it is alleged, was injured when air pressure in some cells rose “above atmosphere”

and gasses were released.

       While the motion to dismiss was pending in this case, plaintiffs also sought relief from

judgment in the earlier action pursuant to Fed. R. Civ. P. 60(b) and (d), and moved to

consolidate the previously dismissed action with this case. The district judge—who presided

over both the 1996 and 2009 cases—acted first on the motion for relief from judgment,

which was based on the alleged failure to produce the same five documents as the claim for

equitable estoppel in this case. The district court denied that motion in January 2010, and

plaintiffs did not appeal from that order.3

       3
         The district court found that although failure to produce material requested in discovery may
constitute misconduct under Rule 60(b)(3), relief on such grounds must be requested no more than a year
No. 10-3419                                                                                                5

        The defendant’s motion to dismiss was granted in March 2010. The district court

found, inter alia, (1) that the breach of contract claim was barred by the exclusive-remedy

provision of the Ohio Workers’ Compensation Act; and (2) that the federal statutes and

regulations relied upon did not provide for a private right of action for violation of federal

law. Plaintiffs did not argue otherwise in the district court or dispute these conclusions on

appeal. Plaintiffs also do not challenge the district court’s determination that the claims for

loss of consortium and punitive damages rise and fall with the intentional tort claim.

        As the district court found, Ohio law recognizes a common law intentional tort claim

against an employer that is not barred by the workers’ compensation exclusive-remedy

provision. See Blankenship v. Cincinnati Milacron Chems., Inc., 

, 576 (Ohio

1982). Intentional tort claims arising prior to April 7, 2005—the effective date of Ohio Rev.

Code § 2745.01—are governed by the common-law standard for establishing an employer’s

intent articulated in Fyffe v. Jeno’s, Inc., 

, 1112 (Ohio 1991) (requiring

knowledge that harm will be a “substantial certainty”).4 Because the claim in this case was

admittedly identical to the intentional tort claim asserted in the 1996 action, however,




after entry of the judgment. See Abrahamsen v. Trans-State Exp., Inc., 

, 428 (6th Cir. 1996);
FED . R. CIV . P. 60(c)(1). Nor could plaintiffs rely on the catch-all provision in Rule 60(b)(6) since the
conduct in question was addressed by Rule 60(b)(3). See Blue Diamond Coal Co. v. Trustees of UMWA
Combined Ben. Fund, 

, 524 (6th Cir. 2001). The district court also rejected plaintiffs’ reliance
on Rule 60(d), finding there was no “fraud on the court” or other egregious conduct that might otherwise
warrant relief under Rule 60(b) or (d). See Apotex Corp. v. Merck & Co., 

, 1360-61 (Fed. Cir.
2007) (discussing “fraud on the court” under former Rule 60(b)).
        4
          In upholding § 2745.01, the Ohio Supreme Court recently explained that the legislature intended
to modify the definition of a common-law intentional tort so as to curtail the availability of damages absent
specific intent to cause an injury. See Kaminski v. Metal & Wire Prods. Co., 

, 1079-80
(Ohio 2010); Stetter v. R.J. Corman Derailment Servs., LLC, 

, 1106 (Ohio 2010).
No. 10-3419                                                                                                6

plaintiffs conceded that it (and the derivative claims) would be completely barred by the

applicable Ohio statute of limitations unless LMUS were estopped from asserting the

defense. Plaintiffs relied on federal case law applying equitable estoppel, but the district

court determined that it would be “more appropriate to consult and apply Ohio authority, if

possible, in deciding the issue presented by this claim.” Then, looking to Ohio law, the

district court concluded that the allegedly inadequate discovery response could not satisfy the

requirements for equitable estoppel in the statute-of-limitations context. The defendant’s

motion to dismiss was granted, and judgment was entered accordingly. This appeal followed.

                                                     II.

        To survive a motion to dismiss, the complaint must “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 

, 570

(2007)). The statute of limitation, although an affirmative defense, may be the basis for

dismissal under Rule 12(b)(6) when the facts are definitively ascertainable from the

pleadings and conclusively establish the affirmative defense. See Hensley Mfg. v. ProPride,

Inc., 

, 613 (6th Cir. 2009). The district court’s decision granting the motion to

dismiss is reviewed de novo. 

        5
          Although plaintiffs assert for the first time in their reply brief that the motion should have been
treated as one for summary judgment, the district court did not err by considering the exhibits plaintiffs
submitted in opposition to the motion to dismiss as they were referred to in the complaint and were central
to the claims asserted in the complaint. See Bassett v. Nat’l Collegiate Athletic Ass’n, 

, 430
(6th Cir. 2008).
No. 10-3419                                                                                   7

       The district court properly recognized that plaintiff’s state-law intentional tort claim

is governed by Ohio’s two-year statute of limitations. See Funk v. Rent-All Mart, Inc., 

, 129-30 (Ohio 2001); Consol. Rail Corp. v. Yashinsky, 

, 594 (6th

Cir. 1999) (state statute of limitation applies to state law cause of action). Ohio law also

recognizes that equitable estoppel may be employed to prevent a defendant from asserting

a limitations defense. See Doe v. Archdiocese of Cincinnati, 

, 894-95 (Ohio

2008); Twee Jonge Gezellen, Ltd. v. Owens-Illinois, Inc., 238 F. App’x 159, 163 (6th Cir.

2007). The party relying on equitable estoppel bears the burden to establish that the

requirements for equitable estoppel have been met.

       Plaintiffs devoted a considerable portion of their opening brief to the contention that

the district court should have applied federal law in evaluating their claim for equitable

estoppel, but retreated from that position at oral argument and conceded that state law

controls. We find that the district court did not err in concluding that state law should govern

the application of equitable estoppel to avoid the statute of limitations on the state-law

intentional tort claim. Guaranty Trust Co. v. York, 

, 110 (1945); United Mine

Workers of Am. v. Gibbs, 

, 726 (1966); Walker v. Armco Steel Corp., 

, 751-52 (1980); see also Hollander v. Brown, 

, 694 (7th Cir. 2006).

       The task of the federal court is to apply Ohio law “‘in accordance with the then

controlling decision of the highest state court.’” Grantham & Mann, Inc. v. Am. Safety

Prods., Inc., 

, 608 (6th Cir. 1987) (citations omitted). If the highest state court

has not decided the applicable law, the federal court “must make its best prediction as to how
No. 10-3419                                                                                   8

the highest state court would resolve the issues presented.” Travelers Prop. Cas. Co. of Am.

v. Hillerich & Bradsby Co., Inc., 

, 264 (6th Cir. 2010).            Further, “‘an

intermediate appellate court’s judgment that announces a rule of law is a datum for

ascertaining state law which is not to be disregarded by a federal court unless it is convinced

by other persuasive data that the highest court of the state would decide otherwise.’”

Michigan First Credit Union v. Cumis Ins. Soc., Inc., 

, 252 (6th Cir. 2011)

(citation omitted).

       The Ohio Supreme Court explained the general principles of equitable estoppel

recognized in Ohio as follows:

               The concept of estoppel is little changed since the mid-19th century,
       when we stated, “As a general rule, a party will be concluded from denying his
       own acts or omissions, which were expressly designed to influence the conduct
       of another, and did so influence it, and when such denial will operate to the
       injury of the latter.” McAfferty v. Conover’s Lessee (1857), 

, 105,
       

. In Russell v. Fourth Natl Bank (1921), 

, 269-
       270, 131 N.E.726, we stated, “An estoppel arises when one is concerned in or
       does an act which in equity will preclude him from averring anything to the
       contrary, as where another has been innocently misled into some injurious
       change of position.” More recently, we stated, “Equitable estoppel prevents
       relief when one party induces another to believe certain facts exist and the
       other party changes his position in reasonable reliance on those facts to his
       detriment.” State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn.
       (1994), 

, 34, 

. Implicit in each of these
       definitions is the principle that “[t]he purpose of equitable estoppel is to
       prevent actual or constructive fraud and to promote the ends of justice.” Ohio
       State Bd. of Pharmacy v. Frantz, (1990), 

, 145, 

.

. Generally, to invoke the doctrine of equitable estoppel, a party

must demonstrate “(1) a factual misrepresentation, (2) that the misrepresentation is

misleading, (3) that the misrepresentation induced actual reliance that was reasonable and
No. 10-3419                                                                                   9

in good faith, and (4) that it caused detriment to the relying party.” Hoeppner v. Jess Howard

Elec. Co., 

, 297 (Ohio Ct. App. 2002) (citing Romine v. Ohio State Hwy.

Patrol, 

, 589-90 (Ohio Ct. App. 2000)). Plaintiffs argued that this showing

could be made based on LMUS’s alleged misrepresentation that it was not aware of other

documents responsive to plaintiffs’ discovery request. The district court found, however, that

the Ohio courts have narrowed the kind of misrepresentation that will suffice to establish

equitable estoppel in the statute-of-limitations context.

       The Ohio Supreme Court, considering equitable estoppel in an action filed well

outside the limitations period, explained that equitable estoppel would benefit the plaintiff

“only if she has pleaded facts that, if proved, will demonstrate the efforts of the Archdiocese

to prevent her from filing a lawsuit.” 

. In that case, the statements

that allegedly threatened and intimidated the plaintiff into giving up for adoption a child

fathered by a priest, while aimed at concealing the paternity of the child, did not reflect or

imply an effort to discourage the plaintiff from filing a lawsuit. Id.; see also Doe v.

Archdiocese of Cincinnati, 

, 279 (Ohio 2006). Dismissal on statute of

limitations grounds was affirmed.

       The Ohio Court of Appeals held in Hoeppner: “In order to apply the doctrine [of

equitable estoppel] to the statute of limitations, a party must show that the misrepresentation

‘was calculated to induce a plaintiff to forgo the right to sue.’” 

(citation omitted). Another Ohio court similarly explained that:

       in the context of a statute-of-limitations defense, a plaintiff must show either
       “an affirmative statement that the statutory period to bring an action was larger
No. 10-3419                                                                                  10

       than it actually was” or “promises to make a better settlement of the claim if
       plaintiff did not bring the threatened suit,” or “similar representations or
       conduct” on defendant’s part.

Helman v. EPL Prolong, Inc., 

, 495 (Ohio Ct. App. 2000) (quoting Cerney

v. Norfolk & W. Ry. Co., 

, 831 (Ohio Ct. App. 1995)).

       We agree with the district court that these cases indicate that the Ohio courts have

narrowed the kind of misrepresentation that must be alleged in order to invoke equitable

estoppel to preclude a defendant from asserting a statute-of-limitations defense. Although

those cases involved plaintiffs who delayed bringing suit, we cannot conclude that the Ohio

courts would disregard this requirement when considering the issue in a refiled action.

Indeed, the Ohio appellate courts have recognized that a defendant may be equitably

estopped from invoking the statute of limitations in an action refiled after voluntary dismissal

when the stipulation specifically provided that the case could be refiled. See Hutchinson v.

Wenzke, 

, 177-78 (Ohio Ct. App. 1999); Romine v. Ohio State Hwy. Patrol,

, 590 (Ohio Ct. App. 2000). Without the representation that the case could

be refiled, equitable estoppel would not have been applicable.

       Here, plaintiffs alleged that they made the determination, with the advice of counsel,

to voluntarily dismiss the first action in the belief that they could not prevail on the merits

of their presumably timely filed claims. We assume, as the district court did, that the

discovery response was factually misleading to the extent that it suggested that no other

responsive materials existed and that the absence of such evidence contributed to the

plaintiffs’ decision to voluntarily dismiss the earlier suit.          However, the alleged
No. 10-3419                                                                                         11

misrepresentation—that LMUS was unaware of documents discussing the potential exposure

of security personnel—did not pertain to the limitations period, defendant’s willingness to

waive the defense, or an inducement for plaintiffs to abandon the presumably timely filed

action. The district court did not err in concluding that the Ohio Supreme Court would not

recognize the allegedly misleading discovery response as a misrepresentation that could be

the basis for invoking equitable estoppel in the statute-of-limitations context.

       AFFIRMED.6




       6
         Plaintiffs argue that the district court had inherent power under Fed. R. Civ. P. 34 and 37
to apply estoppel in this case as a sanction for the defendant’s failure to comply with discovery in
the earlier case. While no authority is offered to support the imposition of sanctions in one case for
alleged misconduct in another, we do not address this claim of error because it is raised for the first
time on appeal.
No. 10-3419                                                                                  12

       KAREN NELSON MOORE, Circuit Judge, dissenting. I respectfully dissent

because I believe that the Ohio Supreme Court would recognize Lockheed’s allegedly

misleading discovery response as a misrepresentation that could be the basis for invoking

equitable estoppel in the statute-of-limitations context. The Ohio Supreme Court has stated

that, “[e]quitable estoppel prevents relief when one party induces another to believe certain

facts exist and the other party changes his position in reasonable reliance on those facts to

his detriment.” Doe v. Archdiocese of Cincinnati, 

, 894-95 (Ohio 2008)

(internal quotation marks omitted). The Walburns allege that Lockheed withheld relevant

documents in discovery, falsely informing them that they were not aware of any responsive

materials. As a result, the Walburns believed that they could not prevail on the merits and

dismissed their first action. Thus, in accordance with Ohio law, the Walburns “ha[ve]

pleaded facts that, if proved, will demonstrate [Lockheed’s] efforts . . . to prevent” them from

proceeding with their first lawsuit, and which should preclude Lockheed from asserting a

statute-of-limitations defense to the Walburns’ instant suit. 

Otherwise, under the

Walburns’ view, Lockheed will have succeeded in preventing them from pursuing their legal

claim by withholding documents in discovery.

       The majority concludes that only a narrow subset of misrepresentations give rise to

equitable estoppel under Ohio law—those that “pertain to the limitations period, defendant’s

willingness to waive the defense, or an inducement for plaintiffs to abandon the presumably

timely filed action.” Maj. Op. at 10. To the contrary, all that Ohio courts require is an

allegation that, if proved, would establish that the defendant’s acts were “designed to
No. 10-3419                                                                             13

prevent” a plaintiff from pursuing her legal claim. 

. It can

reasonably be “infer[red] from the acts alleged in the complaint” that Lockheed “inten[ded]

to prevent” the Walburns from proceeding with their suit. 

Walburns’

complaint, construed in the light most favorable to them, alleges the kind of

misrepresentation recognized by Ohio courts as a basis for equitable estoppel, it should

survive the motion to dismiss.