Bush v. O'Reilly Auto. Enters.

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RICKY A. BUSH, SR., Plaintiff, v. O'REILLY AUTO ENTERPRISES, LLC, et al., Defendants.

No. 3:21-cv-189

United States District Court, S.D. Ohio, Western Division, Dayton

December 9, 2022

Peter B. Silvain, Jr. Magistrate Judge.

ENTRY AND ORDER DENYING MOTION OF DEFENDANT O'REILLY AUTO ENTERPRISES, LLC FOR SUMMARY JUDGMENT (DOC. NO. 25)

THOMAS M. ROSE UNITED STATES DISTRICT JUDGE.

This case involves a personal injury claim brought by Plaintiff Ricky A. Bush, Sr. (“Bush”). Pending before the Court is a motion for summary judgment (Doc. No. 25) (the “Motion”), which was filed by Defendant O'Reilly Auto Enterprises, LLC (“O'Reilly Enterprises”). In the Motion, O'Reilly Enterprises asks the Court “to enter summary judgment in its favor based on the failure of [Bush] to file the Ohio tort claim he has asserted in this court within Ohio's two-year statute of limitations for bodily injury.” (Doc. No. 25 at PageID 83.) The Court DENIES the Motion.

I. BACKGROUND^[1]

On or about April 3, 2019, Bush slipped and fell at a store located at 121 South Heincke Road in Miamisburg, Ohio. (Doc. No. 1 at PageID 2; see also Doc. No. 15 and Doc. No. 16.) He alleges that the cause of the slip-and-fall was a slippery substance that he believes to be motor oil.

(Doc. No. 1.) Bush brings a state-law claim for negligence based on his allegations. (Id.)

On January 26, 2021, Bush originally filed his claim in the Montgomery County Court of Common Pleas (the “Original Lawsuit”). (S.D. Ohio Case No. 3:21-cv-65 at Doc. No 1-1.) In the Original Lawsuit, Bush named O'Reilly Automotive Stores, Inc. (“O'Reilly Stores”) as a defendant, not O'Reilly Enterprises. (Id.) On February 25, 2021, that case was removed from state court to this Court. (S.D. Ohio Case No. 3:21-cv-65 at Doc. No. 1.) The Notice of Removal in the Original Lawsuit stated that O'Reilly Stores was “not the proper entity” and explained that the proper defendant was O'Reilly Enterprises. (Id.) Later that same day, Bush filed a voluntary dismissal without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (S.D. Ohio Case No. 3:21-cv-65 at Doc. No. 2.)

Approximately four-and-a-half-months later (and, therefore, more than two years after Bush's alleged slip-and-fall), Bush filed this lawsuit on July 15, 2021 (the “Current Lawsuit”). (Doc. No. 1.) The attorney who filed the Current Lawsuit was not the attorney who filed the Original Lawsuit. (Compare Id. to S.D. Ohio Case No. 3:21-cv-65 at Doc. No. 1-1.) As with the Original Lawsuit, the Current Lawsuit named O'Reilly Stores, not O'Reilly Enterprises, as a defendant. (Doc. No. 1.) The allegations and substance of the negligence claim in both the Current Lawsuit and the Original Lawsuit are very similar. (Compare Doc. No. 1 at PageID 2-3 to S.D. Ohio Case No. 3:21-cv-65 at Doc. No. 1-1.)

On September 3, 2021, O'Reilly Enterprises filed an answer to Bush's complaint in the Current Lawsuit. (Doc. No. 10.) In its answer, O'Reilly Enterprises stated that it had been “misidentified in the plaintiff's complaint as O'Reilly Automotive Stores, Inc.” (Id. at PageID 32.) That same day, O'Reilly Enterprises served discovery requests on Bush. (Doc. No. 11.) On October 7, 2021, O'Reilly Enterprises filed a Corporate Disclosure Statement that indicated it had been misidentified as O'Reilly Stores and that it is a parent, subsidiary, or other affiliate corporation of O'Reilly Stores. (Doc. No. 13.)

On December 9, 2021, the parties filed a Joint Motion to Amend Named Defendants in Plaintiff's Complaint. (Doc. No. 15.) In that filing, the parties “stipulate[d] to the amendment of the improperly named defendants” in the Complaint. (Id. at PageID 50.) Additionally, the parties “stipulate[d] that Southern Graphic Systems, LLC and O'Reilly Auto Enterprises, LLC are the true and accurate parties in this case and there is no need for further pleadings in order to amend the parties of the case.” (Id. at PageID 52.) Attached to the filing was a proposed entry. (Doc. No. 15-1.) The next day, Magistrate Judge Peter B. Silvain, Jr. filed an entry granting that joint motion. (Doc. No. 16.) The entry matched the language in the body of the proposed entry, and it states:

By agreement of the parties, by and through Counsel, Defendant O'Reilly Automotive Stores, Inc. and Southern Graphics System, LLC, who were improperly named in Plaintiff's Complaint, are hereafter stipulated to their proper names, O'Reilly Auto Enterprises, LLC and Southern Graphic Systems, LLC, respectively. There is no need for further pleadings to amend the parties identified in the Plaintiff's Complaint.^[2]

(Id.)

On June 28, 2022, O'Reilly Enterprises filed the Motion. (Doc. No. 25.) Bush responded to the Motion (Doc. No. 29), and O'Reilly Enterprises filed a reply to Bush's response (Doc. No. 33). The Motion is fully briefed and ripe for review and decision.

II. LEGAL STANDARDS FOR SUMMARY JUDGMENT

Rule 56 of the Federal Rules of Civil Procedure provides that “[a] party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought” and that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Alternatively, summary judgment is denied “[i]f there are ‘any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).

The party seeking summary judgment has the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Fed.R.Civ.P. 56(a), (c). In opposing summary judgment, the nonmoving party cannot rest on its pleadings or merely reassert its previous allegations. Anderson, 477 U.S. at 248-49. It also is not sufficient to “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party must “go beyond the [unverified] pleadings” and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324.

A party's failure “to properly address another party's assertion of fact as required by Rule 56(c)” can result in the court “consider[ing] the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e). Additionally, “[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).

In ruling on a motion for summary judgment, it is not the judge's function to make credibility determinations, “weigh the evidence[,] and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 255. In determining whether a genuine issue of material fact exists, the court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in that party's favor. Id. at 255; Matsushita, 475 U.S. at 587; Tolan v. Cotton, 572 U.S. 650, 660 (2014). However, the “mere existence of a scintilla of evidence in support of the” nonmoving party is not sufficient to avoid summary judgment. Anderson, 477 U.S. at 252. “There must be evidence on which the jury could reasonably find for the plaintiff.” Id. The inquiry, then, is “whether reasonable jurors could find by a preponderance of the evidence that the” nonmoving party is entitled to a verdict. Id.

III. ANALYSIS

In the Motion, O'Reilly Enterprises argues that it is entitled to summary judgment based on the applicable statute of limitations. (Doc. No. 25.) O'Reilly Enterprises seeks “summary judgment on this state law tort claim based on Ohio's two-year statute of limitations for bodily injury” because Bush “alleges he suffered bodily injury on April 3, 2019 as a result of the negligence of this defendant,” but Bush “filed this lawsuit on July 15, 2021.” (Id. at PageID 75.) O'Reilly Enterprises also argues that “Ohio's savings statute does not apply because O'Reilly [Enterprises] was not a party to the original lawsuit.” (Id.) Bush responds that “Ohio's savings statute applies and the statute of limitations does not bar the action.” (Doc. No. 29 at PageID 102.)

Bush does not dispute that the applicable law provides a two-year statute of limitations for his negligence action (see generally Doc. No. 29).^[3] See also Ohio Rev. Code § 2305.10(A) (“[a]n action for bodily injury ... shall be brought within two years after the cause of action accrues”); Schmitz v. NCAA, 2018-Ohio-4391, 122 N.E.3d 80, 90 (Ohio 2018) (negligence claim subject to two-year statute of limitations). The Court agrees with O'Reilly Enterprises that, on its face, the complaint would be barred by applying that statute of limitations because Bush's alleged injury occurred on April 3, 2019 and Bush filed his claims in the Current Lawsuit on July 15, 2021. (Doc. No. 1.)

However Ohio has what is sometimes referred to as a “savings statute,” Ohio Rev. Code § 2305.19. See Wasyk v. Trent, 174 Ohio St. 525, 191 N.E.2d 58, 61 (Ohio 1963); Kinney v. Ohio Dep't of...