United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge United States District Court
matter comes before the Court on Defendants' Motion to
Dismiss (DN 6). For the following reasons, the motion is
Joseph Kellar (“Plaintiff”) was an employee of
Sun Products Corporation located in Warren County, Kentucky.
(Notice Removal Ex. 2, ¶ 1, DN 1-2 [hereinafter
Compl.]). Plaintiff alleges that he was injured while driving
a forklift at Sun Products Corporation on December 17, 2015.
(Compl ¶ 2). Plaintiff brought suit in Warren Circuit
Court on December 19, 2016, against the maintenance vendors
hired by Sun Products Corporation, Defendants MH Equipment
Corporation and MH Equipment Ohio, LLC, (collectively
“Defendants”). (Compl. ¶ 11). Defendants
subsequently removed the case to this Court. (Notice Removal,
DN 1). Defendants seek to dismiss the case arguing that it is
barred by the one-year statute of limitations contained in
KRS 413.140. (Defs.' Mot. Dismiss, DN 6). This matter is
ripe for adjudication.
Court has subject matter jurisdiction over this action under
28 U.S.C. § 1332 as there is complete diversity between
the parties and the amount in controversy exceeds the sum of
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,
” and is subject to dismissal if it “fail[s] to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 8(a)(2); Fed. R. Civ. P 12(b)(6). When
considering a motion to dismiss, courts must presume all
factual allegations in the complaint to be true and make all
reasonable inferences in favor of the non-moving party.
Total Benefits Planning Agency, Inc. v. Anthem Blue Cross
& Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008)
(citing Great Lakes Steel v. Deggendorf, 716 F.2d
1101, 1105 (6th Cir. 1983)). To survive a motion to dismiss
under Rule 12(b)(6), the plaintiff must allege “enough
facts to state a claim to relief that is plausible on its
face.” Traverse Bay Area Intermediate Sch. Dist. v.
Mich. Dep't of Educ., 615 F.3d 622, 627 (6th Cir.
2010) (internal quotation marks omitted) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim becomes plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556).
assert that this matter is time barred due to the one-year
statute of limitations for personal injury claims because
Plaintiff's forklift accident occurred on December 17,
2015, and the Complaint was not filed until December 19,
2016. (Defs.' Mot. Dismiss 1). Plaintiff agrees that the
one-year statute of limitations embodied in KRS 413.140
applies, yet argues that because December 17, 2016, fell on a
Saturday, the statute of limitations was tolled until the
following Monday, December 19, 2016. (Pl.'s Resp.
Defs.' Mot. Dismiss 1-3, DN 7).
computing any period of time prescribed or allowed . . . by
any applicable statute or regulation, the day of the act,
event or default after which the designated period of time
begins to run is not to be included.” KRS
446.030(1)(a). Plaintiff's forklift accident occurred on
December 17, 2015; therefore, it would appear that the
statute of limitations for Plaintiff's accident expired
on December 17, 2016. See Derossett v. Burgher, 555
S.W.2d 579, 579 (Ky. 1977). In analyzing this issue, the
Court must further consider that December 17, 2016, fell on a
Saturday. In this regard, KRS 446.030(1)(a) provides
“the last day of the period so computed is to be
included, unless it is a Saturday [or] a Sunday . . . in
which event the period runs until the end of the next day
which is not one (1) of the days just
mentioned.” KRS 446.030(1)(a) (emphasis added).
Accordingly, the Complaint was timely filed on Monday,
December 19, 2016.
their reply, Defendants argue that because 2016 was a leap
year, to be timely the Complaint should have been filed on or
before Friday, December 16, 2016, which is 365 days from the
date on which the statute of limitations clock began.
(Defs.' Reply Pl.'s Resp. 1-2, DN 8 [hereinafter
Defs.' Reply]). Under Kentucky law, however, a leap day
is inclusive in a calendar year for statute of limitations
purposes. KRS 446.010(49) defines a year as a calendar year,
and Kentucky's highest court has held that a calendar
year encompasses a leap year. Rice v. Blair, 166
S.W. 180, 180 (Ky. 1914) (“As the word ‘year'
means a calendar year, it is immaterial that the year 1912
was leap year.”). This is consistent with the law of
other states that define a year as a calendar year. See
Merriweather v. City of Memphis, 107 F.3d 396, 399 (6th
Cir. 1997) (noting that Tennessee law defines a year in terms
of a calendar year, rather than a number of days, and
“Tennessee's use of a calendar year reaches the
same result as a state law relying on a day count that allows
an additional day in a leap year.” (citing Tenn. Code
Ann. § 1-3-105)); LaRosa v. Cove Haven, Inc.,
840 F.Supp. 319, 321 (M.D. Pa. 1993) (holding that the use of
the words “calendar year” in a Pennsylvania
statute clearly demonstrates the legislature meant that
statutes of limitation run from anniversary date to
anniversary date without regard to leap years); Kowalski
v. Hereford L'Oasis, 79 P.3d 319, 321 (Or. Ct. App.
2003) (“[T]he word ‘year' as used in a
statute of limitations, refers to a calendar year, not a 365
day period” (citing Neff v. Jackson Cty.,
18767 P.3d 977 (Or. Ct. App. 2003))); see also Bailey v.
Faux, 704 F.Supp. 1051, 1053 (D. Utah 1989) (“The
calendar method is useful because it encompasses months of
different length and leap years and leaves little room for
confusion over when a period ends.”).
rely upon two Kentucky cases that they claim support their
position that a “year” only includes 365 days:
Erwin v. Benton, 87 S.W. 291 (Ky. 1905), and
Geneva Cooperage Company v. Brown, 98 S.W. 279 (Ky.
1906). However, these cases do not support Defendants'
argument. Erwin does note that a year means 365
calendar days, but does not include any discussion pertaining
to how a leap year affects this calculation. Erwin,
87 S.W. at 294. Moreover, Defendants reliance on
Geneva is misplaced. In Geneva, the
plaintiff commenced his action on September 19, 1904, for
injuries received September 19, 1903, which was held to be
outside the statute of limitations. Geneva Cooperage
Co., 98 S.W. at 279. The court counted the day of the
injury as the accrual date for the statute of limitations and
held that the plaintiff's action was time barred.
Id. “[T]he cause of action accrued immediately
upon the infliction of the injury, and the statute of
limitation commenced to run on September 19, 1903, and, in
computing the time within which the action must be commenced,
that day must be included.” Id. at 279. Under
present law, the date of occurrence is not to be included in
the calculation. See KRS 446.030(1)(a).
Geneva dealt with a former statute, which has since
been amended and therefore does not control.
also rely on Cuco v. Federal Medical
Center-Lexington, No. 05-CV-232-KSF, 2006 WL 1635668
(E.D. Ky. June 9, 2006). In Cuco, the district court
calculated the amount of time that the plaintiff's claim
would be equitably tolled by explaining that the one-year
statute of limitations “reaches back” 365 days
from the date the complaint was filed and then “reaches
back” another 115 days that the claim was tolled while
the plaintiff was seeking her administrative remedies.
Id. at *26. The Court added in a footnote that the
calculation of the additional days that were “tacked
on” to the statute of limitations included a leap day.
Id. at n.8. Defendants contends that Cuco
stands “for the proposition that the applicable statute
of limitation is calculated by counting backwards from the
actual date of filing and ...