Paying attention to procedural issues resulted in a win for a Sutter O’Connell client in the U.S. Sixth Circuit Court of Appeals this week. A zinc mine accident in eastern Tennessee resulted in a miner losing both arms. He sued numerous entities on multiple theories of liability to recover for those injuries. Several defendants settled leaving only the manufacturer of the engine and the truck he was driving.
The case is a reminder that procedural defenses are an important part of an effective strategy for any defendant. Here the plaintiff’s timing was off when dismissing and refiling his suits. Initially two suits were filed, one against the product defendants and one against his employer and other entities. After the statute of limitations had expired he filed a third lawsuit naming the defendants from the other two cases, but while the suit against the product defendants was still pending. The product defendants moved to dismiss the third suit on two grounds. First, it was filed outside the statute of limitations. Second there was not complete diversity between the parties. The Federal District Court dismissed the suit on both grounds. The plaintiff challenged the dismissal arguing the case was timely filed. The Sixth Circuit agreed there was a lack of diversity and dismissed the appeal but did not rule on whether the suit was filed timely.
Then the Plaintiff filed a fourth suit against those same product manufacturers. (The non-product defendants had settled by this point.) In response the manufacturers argued the fourth suit was untimely filed, well after the statute of limitations expired and without the protection of a saving statute. Because the Tennessee saving statute permits re-filing only “within one (1) year after the reversal or arrest” of a timely-filed suit, neither the third suit (which was filed before the original suit was dismissed), nor the fourth suit (which was not filed within one year of dismissal of the original suit, were timely.
Again the Federal District Court judge held the suit was untimely. The case was appealed to the Sixth Circuit for a second time, and it ruled the fourth suit was time barred.
The Court reasoned that in order to take advantage of the Tennessee saving statute, a suit must be predicated on the prior suit’s dismissal without reaching the merits. In this case, the third suit was filed beyond the statute of limitations and while the second suit was still pending. As such, the third suit and later the fourth suit did not enjoy the protection of the statute, because the third suit was filed before the second suit was dismissed. Plaintiff submitted a dismissal order to the court on October 25, 2010, and re-filed his suit the same day. However, the dismissal order was not entered until November 8, 2010. Sutter O’Connell attorneys Britt Phillips and Chris Schroeck successfully argued that the re-filed suit was not filed “within one year after the reversal or arrest of the initial suit”, and the saving statute did not apply. Plaintiff argued the order was entered nunc pro tunc to October 25th, but the court ruled that designation was improperly used in this case and ineffective because orders can only be entered nunc pro tunc as a result of the court’s inadvertence, not to fix mistakes made by counsel.
Several other procedural issues were raised and argued, including Plaintiff’s arguments that the Full Faith and Credit Act, the Rooker-Feldman doctrine, the Due Process Clause, and the Tennessee Constitution’s Open Courts Clause required the suit to move forward. Ultimately, Sutter O’Connell obtained a dismissal, delivering the best possible result for its client. The opinion is available here.