United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants Winco Fireworks
International, LLC's and Winco Fireworks, Inc.'s
(collectively, âWinco Defendantsâ) motion to dismiss pursuant
to Fed.R.Civ.P. 12(b)(6). [ECF No. 45] Plaintiff opposes the
motion. [ECF No. 52] For the following reasons, the Court
grants Winco Defendants' motion to dismiss.
Factual and Procedural Background
case arises from an injury to Plaintiff's left hand
sustained when a firework exploded near her. The accident
occurred on September 8, 2014 in Illinois. Plaintiff
originally filed an action against Defendant Dave's
Wholesale Fireworks and Black Cat Marketing in Illinois state
court in September 2016. [ECF No. 45-1] Plaintiff voluntarily
dismissed the Illinois action in June 2017 and filed in this
Court a one-count complaint against Defendants Dave's
Wholesale and Black Cat in June 2018. [ECF No. 1 at ¶ 14]
March 12, 2019, Plaintiff amended her complaint, adding Winco
Defendants. [ECF No. 40] In the amended complaint, Plaintiff
alleged that Winco Defendants sold the allegedly defective
firework to Defendant Dave's Wholesale.
Defendants move to dismiss Plaintiff's case for failure
to state a claim upon which relief may be granted, arguing
that her claim is barred by Illinois' two-year statute of
limitations, as applied under Missouri's borrowing
statute, Mo. Rev. Stat. § 516.190. [ECF No. 45]
Plaintiff counters that the Illinois statute of limitations
does not bar her claims against Winco Defendants because: (1)
“it was impossible for [P]laintiff to know of, and
therefore to assert a claim against, the Winco
defendants” before Dave's Wholesale answered
Plaintiff's interrogatories in March 2019; and (2) Winco
Defendants' “potential exposure… arises from
the commercial transaction of the sale of the allegedly
defective product to Dave's [Wholesale] in
Missouri[.]” [ECF No. 52 at 2, 5]
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss part or all of a case for its failure to state a
claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). When considering a motion to dismiss
for failure to state a claim, a court must “accept the
allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.”
Cole v. Homier Distrib. Co., Inc., 599 F.3d 856, 861
(8th Cir. 2010) (quoting Coons v. Mineta, 410 F.3d
1036, 1039 (8th Cir. 2005)). “A court may dismiss a
claim under Rule 12(b)(6) as barred by the statute of
limitations if the complaint itself establishes that the
claim is time-barred.” Illig v. Union Elec.
Co., 652 F.3d 971, 976 (8th Cir. 2011) (citing
Jessie v. Potter, 516 F.3d 709, 713 n. 2 (8th Cir.
Defendants assert that, under Missouri's borrowing
statute, Plaintiff's claim is barred by Illinois'
two-year statute of limitations for personal injury claims.
Plaintiff counters that Missouri's five-year statute of
limitations applies and, as such, her claims against Winco
Defendants were timely filed.
federal court sitting in diversity applies the
statute-of-limitations rules of the forum.” Great
Plains Trust Co. v. Union Pac. R. Co., 492 F.3d 986, 992
(8th Cir. 2007). As noted, under Missouri law, the statute of
limitations in a personal injury action is five years. Mo.
Rev. Stat. § 516.120(4). However, Missouri recognizes a
statutory exception to the application of its own statute of
limitations in the form of a borrowing statute, which
provides: “Whenever a cause of action has been fully
barred by the laws of the state, territory or country in
which it originated, said bar shall be a complete defense to
any action thereon, brought in any of the courts of this
state.” Mo. Rev. Stat. § 516.190. As applied by
Missouri courts, the borrowing statute “provides for
application of a foreign statute of limitations when (1) the
alleged action originated in the foreign jurisdiction and (2)
the foreign statute of limitations would bar the
action.” Hollingsworth v. United Airlines,
Inc., No. 4:16-CV-2139 DDN, 2017 WL 564491, at * 2 (E.D.
Mo. Feb. 13, 2017) (quoting Harris-Laboy v. Blessing
Hosp., Inc., 972 S.W.2d 522, 524 (Mo. App. 1998)).
Supreme Court of Missouri has interpreted the term
“originated” to mean “accrued.”
Thompson by Thompson v. Crawford, 833 S.W.2d 868,
871 (Mo. banc 1992). Under Missouri law, a cause of action
does not accrue “when the wrong is done or the
technical breach of contract or duty occurs, but when the
damage resulting therefrom is sustained and is capable of
ascertainment.” Mo. Rev. Stat. § 516.100. See
also Building Erection Servs., Inc. v. JLG, Inc., 376
F.3d 800, 802 (Mo. App. 2004). Damages are capable of
ascertainment, and the statute of limitations begins to run,
when the “evidence was such to place a reasonably
prudent person on notice of a potentially actionable
injury.” Powel v. Chaminade Coll. Preparatory,
Inc., 197 S.W.3d 576, 583 (Mo. banc 2006) (quoting
Bus. Men's Assurance Co. of Am. v. Graham, 984
S.W.2d 501, 507 (Mo. banc 1999)). See also Burdess v.
Cottrell, Inc., 359 F.Supp.3d 704, 710 (E.D. Mo. 2019).
undisputed facts establish that Plaintiff was in Illinois on
September 8, 2014 when a firework exploded and injured her
left hand. Plaintiff knew she had been damaged by the
firework on September 8, 2014, the day of the injury. Because
Plaintiff's injuries were sustained and capable of
ascertainment at the time of her injury in Illinois, the
Court concludes that her cause of action originated in
Illinois in September 2014. See e.g., Benton v.
Cracker Barrel Old Country Stores, Inc., 436 S.W.3d 632,
634 (Mo. App. 2014). Accordingly, Missouri's borrowing
statute mandates the application of Illinois' two-year
statute of limitations, which began to run in September 2014,
when Plaintiff sustained her injuries.
acknowledges that her case “seems to fit the Missouri
decisions applying and interpreting the [borrowing
s]tatute.” [ECF No. 52 at 3] She contends, however,
that her case is unlike “most tort claims” where
the “determination of when and where the cause of
action originated or accrued…is straightforward, being
the place and time the physical injury occurred and was
plainly known by the injured plaintiff.” Id.
Plaintiff argues that her claim did not accrue at the time
and place of her injury because, in September 2014, she ...