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Marty v. Dave's Wholesale Fireworks, Inc.

United States District Court, E.D. Missouri, Northern Division

August 14, 2019

ANDREA MARTY, Plaintiff,



         This matter is before the Court on Defendants Winco Fireworks International, LLC's and Winco Fireworks, Inc.'s (collectively, “Winco Defendants”) 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.

         I. Factual and Procedural Background

         This 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.[1] 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[2] in June 2018. [ECF No. 1 at ¶ 14]

         On 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.

         Winco 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]

         II. Legal Standard

         Under 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. 2008)).

         III. Discussion

         Winco 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.

         “A 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)).

         The 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).

         The 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.[3]

         Plaintiff 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 ...

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