United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
AND/OR FOR SUMMARY JUDGMENT BASED UPON THE STATUTE OF
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.
the Court is the Motion of Defendant-which was named in the
Complaint (ECF No. 1) as Precision Industries, Inc., a/k/a
P.I., Inc., but filed its Answer (ECF No. 10) as P.I., Inc.,
a/k/a Precision Industries and has referred to itself solely
as P.I., Inc., in its subsequent filings-to Dismiss and/or
for Summary Judgment Based upon the Statute of Limitations
(ECF No. 31). Defendant moves to dismiss-or in the
alternative, for summary judgment on- Plaintiff Ricardo
Torres's diversity action under Tennessee law on the
basis that Tennessee's savings statute did not toll the
statute of limitations when Plaintiff initially filed suit in
state court because Plaintiff did not actually sue Defendant.
Plaintiff instead sued “Precision Industries” in
the prior action. But Plaintiff asserts that Defendant
nonetheless participated in the suit as “P.I., Inc.,
” identified itself as “Precision
Industries” in its separation notice to Plaintiff, and
caused the entirety of this confusion by failing to register
with the Tennessee Secretary of State. For reasons set forth
below, Defendant's Motion is DENIED.
PROPER MOTION BEFORE THE COURT
outset, the Court finds it appropriate to determine whether
it should consider Defendant's Motion as a motion to
dismiss or a motion for summary judgment. When a party moving
under Rule 12(b)(6) presents matters outside the pleadings
and the court does not exclude the materials, the court must
treat the Rule 12(b)(6) motion as a motion for summary
judgment under Rule 56. Fed.R.Civ.P. 12(d). Before converting
a motion to dismiss, the Court must give the parties “a
reasonable opportunity to present all the material that is
pertinent to the motion.” Id. But notice is
required only to the extent that “one party is likely
to be surprised by the proceedings.” Wysocki v.
Int'l Bus. Mach. Corp., 607 F.3d 1102, 1105 (6th
Cir. 2010) (quoting Shelby Cty. Health Care Corp. v. S.
Council of Indus. Workers Health & Welfare Tr. Fund,
203 F.3d 926, 931 (6th Cir. 2000); Salehpour v. Univ. of
Tenn., 159 F.3d 199, 204 (6th Cir. 1998)). The necessity
of prior notice “depends upon the facts and
circumstances of each case.” Id. (quoting
Salehpour, 159 F.3d at 204).
Court finds it appropriate to convert Defendant's Motion
to Dismiss to a Motion for Summary Judgment without
additional notice to the parties. Here, both parties have not
only presented Statements of Facts (ECF Nos. 31-2, 35-1,
35-2, & 37-1) that rely on affidavits and other documents
but also utilized these Statements of Facts in their
respective arguments. Further, Plaintiff had not just notice
of this possibility but in fact asks the Court to consider
the instant Motion as a motion for summary judgment.
Pl.'s Resp. in Opp'n to Def.'s Mot. to Dismiss
and/or for Summ. J. Based upon the Statute of Limitations, at
8, June 15, 2017, ECF No. 35 [hereinafter “Pl.'s
Resp.”] (“As such, the Court should treat
Defendant's Motion under the Rule 56 summary judgment
standard.”). Accordingly, the Court will proceed as if
Defendant has moved for summary judgment against Plaintiff.
following facts are not disputed by the Parties unless
otherwise noted. See Statement of Undisputed
Material Facts in Supp. of Def.'s Mot. for Summ. J., May
18, 2017, ECF No. 31-2 [hereinafter “Def.'s
Statement of Facts”]; Pl.'s Resps. to Def.'s
Statement of Undisputed Material Facts in Supp. of Def.'s
Mot. for Summ. J., June 15, 2017, ECF No. 35-1 [hereinafter
“Pl.'s Resp. to Def.'s Statement of
Facts”]; Pl.'s Statement of Undisputed Material
Facts, June 15, 2017, ECF No. 35-2 [hereinafter
“Pl.'s Statement of Facts”]; Def s Resp. to
Pl.'s Statement of Undisputed Material Facts, June 29,
2017, ECF No. 37-1 [hereinafter “Def.'s Resp. to
Pl.'s Statement of Facts”]. Defendant is a Nevada
Corporation that operates a business in Whiteville, TN,
building torque converters for the automotive industry.
Defendant employed Plaintiff from January 5, 2011, to
September 7, 2012. Defendant provided the Tennessee
Department of Labor and Workforce Development with a C20 form
dated May 21, 2012, regarding Plaintiffs workplace injury
from a few days prior. That form listed Defendant's name
as “Precision Industries.” Defendant also issued
Plaintiff a Separation Notice, dated September 7, 2012, that
listed its name as “Precision Industries.” The
2012 Property Tax Receipt for 120 Independence Drive,
Whiteville, TN, which is the principal place of business for
Defendant and where Plaintiff worked, was paid by
“Hedrick Terry Etux Vicki DBA Precision
Industries.” Defendant's Articles of Incorporation
list its Board of Directors as three persons including
President, Secretary, and sole-shareholder, Terry Hedrick and
his spouse, Vicki Hedrick, as Treasurer.
filed a lawsuit in Hardeman County Circuit Court for
retaliatory discharge on October 19, 2012, against
“Precision Industries, ” Terry Hedrick, and Vicki
Hedrick. Defendant was served with process and filed an
Answer as “PI., Inc., d/b/a Precision
Industries.” Defendant has consistently stated that
“Precision Industries” is the name under which it
does business and “P.I., Inc., ” is the name of
Plaintiff s employer, i.e., Defendant, rather than Terry and
Vicki Hedrick. Defendant regularly listed its name as
“P.I., Inc., ” in its Hardeman County filings but
would designate itself as “Precision” within each
document. At the time the Hardeman County lawsuit began,
neither “Precision Industries” nor “P.I.,
Inc., ” was registered with the Tennessee Secretary of
State. And Defendant did not register itself with the
Tennessee Secretary of State, pursuant to section
48-15-101(a) of the Tennessee Code Annotated, until
April 30, 2013, and it did so as “PITC, INC.”
Through an Order entered May 10, 2013, the Circuit Court of
Hardeman County granted Plaintiffs Motion for Leave to Amend
Complaint to add “P.I., Inc., ” as a defendant.
Plaintiff neither filed an amended complaint adding
“P.I., Inc., ” as a defendant in the Hardeman
County case nor served Defendant with such a
December 23, 2013, Hardeman County Circuit Court granted
Defendant's Motion for Summary Judgment based on
Plaintiff's lack of standing as an undocumented worker.
Plaintiff appealed the Order to the Tennessee Court of
Appeals, which reversed. Defendant then unsuccessfully
appealed to the Tennessee Supreme Court. The case was
remanded back to the Hardeman County Circuit Court, where the
court eventually granted Plaintiff's Motion for Voluntary
Dismissal on November 10, 2016. Plaintiff filed this action
on December 19, 2016.
STANDARD OF LAW
judgment is proper where the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law. Fed.R.Civ.P. 56. When deciding a
motion for summary judgment, the Court must review all the
evidence and draw all reasonable inferences in favor of the
nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). In reviewing a motion
for summary judgment, the Court views the evidence in the
light most favorable to the nonmoving party. Roell v.
Hamilton Cty., 870 F.3d 471, 479 (6th Cir. 2017) (citing
Watson v. Cartee, 817 F.3d 299, 302 (6th Cir.
2016)). It “may not make credibility determinations
or weigh the evidence.” Laster v. City of
Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014). “The
burden is generally on the moving party to show that no
genuine issue of material fact exists, but that burden may be
discharged by ‘showing . . . that there is an absence
of evidence to support the nonmoving party's
case.'” Bennett v. City of Eastpointe, 410
F.3d 810, 817 (6th Cir. 2005) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986)). When the motion is
supported by documentary proof such as depositions and
affidavits, the nonmoving party may not rest on his pleadings
but, rather, must present some “specific facts showing
that there is a genuine issue for trial.” Celotex
Corp., 477 U.S. at 324; Eastham v. Chesapeake
Appalachia, L.L.C, 754 F.3d 356, 360 (6th Cir. 2014).
These facts must be more than a scintilla of evidence and
must meet the standard of whether a reasonable juror could
find by a preponderance of the evidence that the nonmoving
party is entitled to a verdict in his favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
The Court must enter summary judgment “against a party
who fails to . . . [meet the burden] that party will bear . .
. at trial.” Celotex Corp, 477 U.S. at 322.
moves for summary judgment on the basis that Plaintiffs claim
is barred by the statute of limitations. Defendant states
that “[t]he statute of limitations for Tennessee
actions for retaliatory discharge based on a plaintiffs
filing of a claim for workers' compensation is one year
from the date of the termination of the
employee.” Def.'s Mem. in Supp. of Mot. to
Dismiss and/or for Summ. J. Based Upon the Statute of
Limitations, at 5, May 18, 2017, ECF No. 31-1 [hereinafter
“Def.'s Mem.”] (citing Headrick v. Union
Carbide Corp., 825 S.W.2d 424, 425-26 (Tenn. Ct. App.
1991)). Plaintiff was terminated on September 7, 2012, and
filed this lawsuit against Defendant on December 19, 2016.
Therefore, goes Defendant's argument, this action is
barred by the statute of limitations. Defendant accurately
states the statute of limitations. The Tennessee Supreme
Court's decision in Weber v. Moses says as much,
relying on the Tennessee Court of Appeals's
Headrick decision in addition to the provision of
the Tennessee Code Annotated setting forth the statute of
limitations for personal injury actions. 938 S.W.2d 387
(Tenn. 1996) (citing Tenn. Code Ann. § 28-3-104;
Headrick, 825 S.W.2d 424; Van Cleave v. McKee
Baking Co., 712 S.W.2d 94 (Tenn. 1986)) (“A claim
for retaliatory discharge is a tort action which is governed
by the general tort statute of limitations which requires
that a lawsuit be ‘commenced within one (1) year after
the cause of action accrued . . . .'”).
has a savings statute, however, that permits, “[i]f the
action is commenced within the time limited by a rule or
statute of limitation, but the judgment or decree is rendered
against the plaintiff upon any ground not concluding the
plaintiff's right of action . . . the plaintiff . . . may
. . . commence a new action within one (1) year . . .
.” Tenn. Code Ann. § 28-1-105(a). Based upon the
undisputed facts before the Court, Plaintiff's Hardeman
County action was timely filed in October 2012 and dismissed
in November 2016 without an adjudication on the merits.
Plaintiff then filed this action in December 2016. Thus, the
savings statute seems facially applicable. But Defendant
argues that it is not. Defendant asserts that the Tennessee
savings statute does not apply because Plaintiff never
brought a timely action against Defendant by naming
“P.I., Inc., ” in the action. The Hardeman County
Circuit Court granted Plaintiff's Motion to Amend his
Complaint to that effect, but Plaintiff never did so.
Defendant alternatively argues that the Court should apply
the doctrine of laches because Plaintiff sat on his rights by
having notice that Defendant was not properly named in the
Hardeman County suit but not formally adding Defendant to the
same. For his part, Plaintiff first argues that Defendant
waived its argument on this point entirely by failing to
raise this issue before participating in the ...