KATHLEEN McDONALD O'MALLEY, District Judge.
Before the Court is Plaintiff Jeffrey Evans' ("Evans") Motion for Leave Instanter to File an Amended Complaint. (Doc. 19.) In this Motion, Evans seeks to add two individuals as defendants pursuant to Rule 15 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1447(e). Defendant Hanger Prosthetics & Orthotics, Inc. ("Hanger") filed a Motion to Dismiss and Brief in Opposition to Plaintiff's Motion for Leave to File an Amended Complaint. (Doc. 21.)
This dispute arises from the malfunctioning of Evans' prosthetic leg, which he purchased from Hanger.
In 1995, Evans lost his right leg in an accident. Although it is unclear from the record what occurred in the intervening years, in 2002, Evans purchased his first prosthetic from Hanger's facility in New Philadelphia, Ohio. (Doc 24 at 2.)
In 2007, Evans decided to get a second opinion about the difficulties with his 2005 prosthetic, this time from a doctor in Canton, Ohio. This doctor informed him that he needed a properly fitting socket and advised Evans to go see Kyle Underwood ("Underwood"), a licensed prosthetist and also an employee of Hanger, at Hanger's facility in Canton, Ohio. (Id. at ¶¶ 5, 16.)
When Evans went to see Underwood, he took a new cast of his leg. (Id. at ¶ 18.) Over the next few weeks, he went in for more fittings, but Underwood was no more successful than Yanke, which forced Evans to continue to wear his 2002 prosthetic leg. (Id. at ¶ 20.) During one of Evans' visits, however, Underwood informed him that prosthetic legs usually have four bolts, yet Evans' 2002 prosthetic only had three bolts and some kind of shim to attach the joint, bolts, and socket. (Id. at ¶ 21.)
A few weeks later, in April of 2007, the 2002 prosthetic leg malfunctioned and Evans once again returned to Underwood for assistance. When Evans tried the leg on in the office after Underwood worked on it, Evans informed Underwood that it still "felt funny" when he walked on it. Underwood assured him that the leg would not break and that it was safe, even if it only had three bolts. (Id. at ¶ 22.)
Within one hour of returning home from his visit, the socket of his 2002 prosthetic leg broke, which caused Evans to fall down a hill and to suffer serious injuries. (Id. at ¶ 23.)
On March 13, 2009, Evans filed a complaint in the Court of Common Pleas in Tuscarawas County, Ohio, which sought compensatory damages in excess of $25,000.00. (Id. at 7.) On May 21, 2009, however, Hanger requested a written statement describing the actual amount of recovery sought, and Evans clarified that he was seeking $250,000.00 in damages. (Doc. 1-6.) Hanger then filed a Notice of Removal in this Court on June 6, 2009 pursuant to 28 U.S.C. §§ 1332(a), 1441(a) and 1446. (Doc. 1.) Evans is a citizen of Ohio, while Hanger is a Delaware corporation with its principal place of business in Maryland. (Id. at 2.) Subject matter jurisdiction, therefore, is proper on the basis of diversity of citizenship under 28 U.S.C. § 1332.
The first issue before the Court is whether Evans should be allowed to amend his Complaint to join two non-diverse parties, which would require remand of the case to state court. Evans makes what are essentially two main arguments regarding his Motion to Amend: 1) the Court should grant him leave to amend his Complaint and to join the two new defendants as he is not trying to destroy diversity jurisdiction but, rather, is trying to fully adjudicate all of his claims against all of the defendants in one lawsuit (Doc. 19 at 3); and 2) joinder is not futile since professional negligence claims are subject to a four-year statute of limitations as stated in O.R.C. § 2305.09. (Doc. 22 at 6.) Hanger argues that Evans' Motion should be denied because: 1) the two-year statute of limitations for products liability claims under O.R.C. § 2305.10 and the one-year statute of limitations for medical malpractice claims under O.R.C. § 2305.11 bar Evans' claims against Underwood and Yanke (Doc. 24 at 6); 2) the Amended Complaint does not relate back under Rule 15(c) of the Federal Rules of Civil Procedure (Doc. 21 at 7); and 3) the proposed amendment would be futile because Evans' does not have access to the 2002 prosthesis any longer.
The Court's decision whether to grant leave to amend the pleadings is governed by Rule 15 of the Federal Rules of Civil Procedure. Rule 15(a) provides, in part, that "a party may amend its pleading only with the opposing party's written consent or the court's leave" and that "[t]he court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a). A motion to amend should be denied, however, "if the amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or would be futile." Crawford v. Roane, 53 F.3d 750, 753 (6th Cir.1995). Where a party seeks to amend a complaint after the statute of limitations for a claim has expired, he or she may do so only where Rule 15(c) allows the amendment to relate back to the date of the original complaint. Rule 15(c) provides that an amendment relates back when:
Fed.R.Civ.P. 15(c).
Whether Evans may amend his complaint turns on two threshold questions: 1) the Court must determine whether joinder of the two new defendants is barred by the statute of limitations; and 2) if so, whether the amendment relates back under Rule 15(c).
The first two causes of action in the Amended Complaint are product liability claims.
The proposed Amended Complaint seeks to add an additional claim of professional negligence against Underwood and Yanke to Count Five.
Evans asserts that, because the claim against Underwood and Yanke does not fall under the medical malpractice statute of limitations, the four-year statute of limitations for professional negligence in O.R.C. § 2305.09 should apply. (Doc. 22 at 6.) Evans provides an extensive list of professionals, including accountants, investment advisors, surveyors, insurance agents, title agents, and engineers, as to whom claims against them are governed by a four-year statute of limitations. See id. Evans' attempt to analogize his claims against Yanke and Underwood to claims against these listed professionals is unpersuasive, however. The Supreme Court of Ohio has explained that "the two-year statute of limitations contained in [O.R.C.] 2305.10 governs claims of bodily injury resulting from the alleged negligence of health-care professionals other than those expressly included in [O.R.C.] 2305.11." Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 180, 546 N.E.2d 206 (1989). See also Whitt v. Columbus Coop., 64 Ohio St.2d 355, 415 N.E.2d 985 (1980); Richardson v. Doe, 176 Ohio St. 370, 199 N.E.2d 878 (1964).
Thus, Evans' cause of action accrued on April 24, 2007. Since he failed to join any additional defendants by April 24, 2009 when the statute of limitations expired for the product liability claims and any professional negligence claim, his claims against Yanke and Underwood are time-barred unless they relate back to filing of the original Complaint under Rule 15(c) of the Federal Rules of Civil Procedure.
There are three possible ways Evans' Amended Complaint can relate back to the date of the original Complaint under Rule 15(c):
First, an amendment can relate back "if the law that provides the applicable statute of limitations allows relation back." Fed. R. Civ. Pro. 15(c)(1)(A). In this case, O.R.C. § 2305.10 provides the applicable statute of limitations for all of Evans' valid claims and contains no relation back provision. The Sixth Circuit has interpreted Rule 15(c)(1)(A) to require that the statute providing the governing statute of limitations contain an express relation back provision before the rule may apply. Lovelace v. O'Hara, 985 F.2d 847, 851-52 (6th Cir.1993). Because O.R.C. § 2305.10 does not contain a relation back provision, Evans' amendment does not relate back under Rule 15(c)(1)(A).
The second circumstance under which an amendment may relate back is where it seeks to add claims against parties already involved in the proceedings. Fed. R. Civ. Pro. 15(c)(1)(B). Evans' Amended Complaint does not add claims against parties already involved in the action, but, rather, seeks to add parties, making Rule 15(c)(1)(B) inapplicable.
The third possibility for relation back applies in certain instances where, as here, "the amendment changes the party or the naming of the party against whom a claim is asserted." Fed. R. Civ. Pro. 15(c)(1)(C). Rule 15(c)(1)(C) only allows relation back as to new party defendants, however, where, within 120 days of the filing of the original action, the party to be brought in by amendment: (1) received notice of the pending action; and (2) knew or should have known that an action would have been brought against him. Fed. R. Civ. Pro. 15(c)(1)(C)(i)-(ii).
Evans' Amended Complaint does not qualify for relation back under Rule 15(c)(1)(C)(i) because Yanke and Underwood did not receive notice of the action within the 120 day time limit. Evans filed the original Complaint on March 13, 2009 (Doc. 1-1) and filed his Motion to Amend on September 17, 2009. (Doc. 19). Underwood and Yanke, therefore, did not receive notice of the action until over 180 days after the filing of the Complaint,
Evans' proposed amendment also fails to relate back under Rule 15(c)(1)(C) because it does not satisfy the second requirement in Rule 15(c)(1)(C)(ii), which provides that the newly-named defendant "knew or should have known that the action would have been brought against it, but for a mistake concerning the party's identity." Fed. R. Civ. Pro. 15(c)(1)(C)(ii). In Evans' Complaint, he brought suit against Hanger and also included "John Doe" defendants. The Sixth Circuit, however, has held consistently that "substituting a named defendant for a `John Doe' defendant is considered a change in parties" that does not relate back. Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.1996). Evans cannot use a "John Doe" pleading to circumvent the statute of limitations. There was never, moreover, any mistake concerning the prosthetists' identity. Evans repeatedly went to see both Underwood and Yanke and knew of their involvement with his prosthetic leg at the time the accident occurred. Because there was no mistake concerning the prosthetists' identity, there was no reason why Evans could not have brought claims against them when he filed his Complaint.
For the reasons set forth above, Evans' amendment does not relate back under Rule 15(c). Accordingly, the Court
Although it is not appropriate to amend the Complaint to add Yanke and Underwood, Hanger does not oppose the proffered amendment to the extent it seeks to add information to the Background Allegations section of the Complaint. The proposed amendments to the Background Allegations section of the Complaint appear designed to comport with the recently heightened pleading standard in federal court and give important details about Evans' accident. Accordingly, the Court
Although Hanger's Motion to Dismiss focuses on why Evans' Motion to Amend should be denied rather than why Evans' claims should be dismissed, its futility argument relates to all aspects of both the original and the proposed Amended Complaint.
The Court may dismiss a claim for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). The purpose of a motion under 12(b)(6) is to test the sufficiency of the complaint—not to decide the merits of the case.
It is well-established that a complaint need not set forth in detail all of the particularities of the plaintiff's claim. See Myers v. Delaware Co., No. 2:07-cv-844, 2009 WL 3446752, *2, 2009 U.S. Dist. LEXIS 98143, *6 (S.D.Ohio Oct. 22, 2009). Instead, Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8 does not, however, "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). While legal conclusions can provide the framework for a complaint, all claims must be supported by factual allegations. Id. The Supreme Court has indicated that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949; see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("[A] formulaic recitation of the elements of a cause of action" is insufficient).
To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must plead facts sufficient "to state a claim for relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955 (emphasis added). The requisite facial plausibility exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. The plausibility requirement is not the same as a "probability requirement" but instead "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Therefore, where a complaint pleads facts that are "merely consistent with" the defendant's liability, "its stops short of the line between possibility and plausibility of entitlement to relief." Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Examining whether a complaint states a plausible claim for relief is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.
A district court considering a motion to dismiss must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded allegations in the complaint as true. See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998); Iqbal, 129 S.Ct. at 1950 ("When there are well-pleaded factual allegations, a court should assume their veracity and then determine
In its Motion to Dismiss, Hanger focuses on the fact that Evans does not have the prosthesis that caused the accident. Hanger argues that, without physical possession of the prosthesis, Evans will not be able to provide expert testimony or to produce other evidence necessary for him to prevail on his claims. (Doc. 21 at 4.) Section 2307.73 of the Ohio Revised Code, however, provides that:
Ohio Rev.Code § 2307.73(B) (emphasis added); see also Yanovich v. Zummer Austin, Inc., 255 Fed.Appx. 957, 966 (6th Cir.2007). The fact that Evans no longer has the prosthetic leg, therefore, is not fatal to Evans' claims if he can otherwise present circumstantial evidence of the alleged defects. Hanger's argument about insufficient evidence, moreover, is an argument that should be made in connection with a motion for summary judgment rather than a motion to dismiss. Obviously, the Court cannot predict what types of evidence the parties will generate during discovery, which is what distinguishes a motion to dismiss from a motion for summary judgment.
While Hanger does not attack these counts on grounds other than Evans' inability to produce the prosthesis, the Court does so sua sponte. Peculiarly, both parties failed to notice that, while the first two causes of action in Evans' Complaint were brought pursuant to Ohio's product liability statutes, the remaining five causes of action are common law claims that have been abrogated by the Ohio Products Liability Act (the "OPLA"), O.R.C. § 2307.71 et seq.
Ohio Rev.Code § 2307.71(A)(13).
Courts routinely dismiss non-statutory product liability claims brought under Ohio law. See, e.g., Crisp v. Stryker Corp., No. 09-cv-02212, 2010 WL 2076796, 2010 U.S. Dist. LEXIS 51390 (N.D.Ohio May 21, 2010); Miles v. Raymond Corp., 612 F.Supp.2d 913 (N.D.Ohio 2009). Although Evans attempts to distinguish the common law claims from the product liability claims (see Doc. 22 at 3), it is "the essential nature of the substantive allegations of [Evans'] claims ... not the artificial label that [he] attach[es] to the claims" that is dispositive. Williams v. Bausch & Lomb Co., No. 2:08-cv-910, 2009 WL 2983080, at *3, 2009 U.S. Dist. LEXIS 83526, at *8 (S.D.Ohio Sept. 14, 2009) (citing Lawyers Cooperative v. Muething, 65 Ohio St.3d 273, 603 N.E.2d 969 (1992)). Accordingly, if the statutory language abrogating common law product liability causes of action encompasses Evans' common law claims, then those claims are extinguished. See Miles, 612 F.Supp.2d at 919. See also Stratford v. SmithKline Beecham Corp., No. 2:07-CV-639, 2008 WL 2491965, at *1-2, 2008 U.S. Dist. LEXIS 84826, at *4 (S.D.Ohio June 17, 2008).
In Counts Three and Four of the Complaint, Evans alleges that Hanger negligently failed to provide adequate warnings and that its products were negligently designed, manufactured, or implemented. This, however, is the very same conduct that the OPLA includes in the definition of a "product liability claim." See Ohio Rev. Code § 2307.71(A)(13)(a)-(b); Tompkin v. American Brands, 219 F.3d 566, 575 (6th Cir.2000) (noting that "common law negligence claims have been preempted by OPLA.") As a result, the OPLA abrogated Counts Three and Four of the Complaint.
The Fifth Count in the Complaint is general negligence. The claim alleges only that "Plaintiff's injuries were a proximate result of Defendant's negligence, and
The Sixth Count in the Complaint is a claim for breach of warranty. The claim states that, "in supplying, delivering, and/or implanting said prosthetic device, Defendants expressly or impliedly warranted that said device was merchantable, fit, and/or safe for the ordinary and particular purpose for which it was sold and that it was free from all defects" and that Hanger breached those warranties. (Doc. 1-1 at ¶¶ 37-38.) In product liability cases involving breach of warranty, when it is impossible to separate a plaintiff's warranty claim from the product at issue, then the common law claim is subject to preemption by the OPLA. Miles, 612 F.Supp.2d at 923. See Ohio. Rev.Code § 2307.71(A)(13)(c). The claim asserted by Evans is, without question, based on the allegation that the prosthetic leg failed to conform to the express and implied warranties. Furthermore, Evans' Complaint does not contain any allegation that Hanger breached a warranty for some unrelated product. Accordingly, Count Six of the Complaint is abrogated by the OPLA because it is impossible to separate Evans' breach of warranty claim from Evans' accident involving the 2002 prosthetic leg.
The Seventh Count in the Complaint is for punitive damages. Under O.R.C. § 2307.80:
Ohio Rev.Code § 2307.80. Evans is seeking punitive damages because Hanger allegedly "consciously disregarded the rights and safety of consumers, including Plaintiff Jeffrey Evans, and as such, [its] conduct had a great probability of causing substantial harm." (Doc. 1-1 at ¶ 41.) The Court is unclear how Evans' allegations form a basis for punitive damages. Nevertheless, because Evans' entire lawsuit involves claims that must be brought under the OPLA, if he wishes to pursue punitive damages, he needs to do so under the standard for punitive damages outlined in O.R.C. § 2307.80. Count Seven of the Complaint, therefore, is abrogated by the OPLA.
Courts typically dismiss common law causes of action abrogated by the OPLA without prejudice to allow plaintiffs the opportunity to re-plead their common law claims under the applicable provision of the OPLA.
For the aforementioned reasons, the Court
