United States District Court, W.D. Kentucky, Louisville Division
SONJA M. TYSON, Plaintiff,
REGENCY NURSING, LLC, Defendant
MEMORANDUM OPINION AND ORDER
J. HALE, JUDGE UNITED STATES DISTRICT COURT.
Sonja Tyson brings this action against Regency Nursing, LLC,
the owner and operator of Regency Center, a skilled nursing
facility located in Louisville, Kentucky. (Docket No. 17)
Tyson claims that while a resident at Regency, she received
substandard care and suffered personal injuries as a result
of Regency's negligence. Regency now moves for dismissal
pursuant to the statute of limitations. (D.N. 24) Because the
parties ask the Court to consider materials beyond the scope
of the complaint and answer, the Court will consider
Regency's motion for partial dismissal pursuant to the
summary judgment standard rather than the standard applicable
to motions to dismiss. And because there is a factual dispute
concerning when Tyson should have known of her injuries, the
Court will deny Regency's motion without prejudice.
2010 until 2016, Tyson was a resident at Regency in
Louisville, Kentucky. (D.N. 17, PageID # 83; D.N. 25, PageID
# 131) In January 2016, Tyson became ill, exhibiting
decreased appetite, fever, and vomiting. (D.N. 25, PageID #
133) On January 11, she was taken to the emergency room at
Baptist Health Louisville. (Id., PageID # 131)
Baptist Health diagnosed Tyson with a range of illnesses and
injuries. (Id.) Following her discharge
from Baptist Health, Tyson did not return to Regency.
originally filed this action in Kentucky state court against
Genesis Eldercare Rehabilitation Services, LLC and Defendant
Regency Nursing, LLC on January 11, 2017. (See D.N.
1-2) Tyson claims that Regency “carelessly and
negligently failed to provide appropriate care[, ]”
resulting in Tyson sustaining severe injuries in violation of
Kentucky common law and Ky. Rev. Stat. § 216.515(6).
(D.N. 17, PageID # 83, 84) She also alleges that Regency
breached its agreement to provide her with adequate living
assistance. (Id., PageID # 84)
February 14, 2017, Genesis removed the action to this Court.
(D.N. 1) Thereafter, both Genesis and Regency filed answers
to Tyson's amended complaint. (D.N. 18; D.N. 19) In light
of a stipulation between the parties, the Court dismissed
Tyson's claims against Genesis on September
(D.N. 20; D.N. 21) Regency now moves to dismiss some of
Tyson's claims pursuant to the statute of limitations.
(D.N. 24) Specifically, Regency argues that “[t]o the
extent that [Tyson's] claims for injuries arose prior to
one year before the Complaint was filed, they are barred by
the one year statute of limitations as set forth by [Ky. Rev.
Stat.] § 413.140(1).” (D.N. 24-1, PageID # 118)
initial matter, Tyson argues that Regency's motion should
be treated as a motion for summary judgment under Federal
Rule of Civil Procedure 56. (D.N. 25, PageID # 130) On a
motion for judgment on the pleadings, “a court may
accept matters outside the pleadings, but in doing so it
generally must treat the motion as one for summary judgment
under Rule 56.” Jones v. City of Cincinnati, 521
F.3d 555, 562 (6th Cir. 2008) (quoting Fed.R.Civ.P. 12(d)
(internal quotations omitted)); see also Tucker v.
Heaton, No. 5:14-CV-00183-TBR, 2015 WL 3935883, at *2
(W.D. Ky. June 26, 2015) (“Because this document is
neither contained nor referenced in the pleadings, the Court
must either reject the evidence or treat the motion as one
for summary judgment.”). “Where one party is
likely to be surprised by the proceedings, notice is
required, but generally, whether notice of conversion of a
motion [for judgment on the pleadings] to one for summary
judgment by the court to the opposing party is necessary
depends upon the facts and circumstances of each case.”
Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d
1102, 1105 (6th Cir. 2010) (alteration and internal
quotations omitted). Thus, where a party has implicit notice
that a motion for judgment on the pleadings might be
converted into a motion for summary judgment and has had a
reasonable opportunity to present materials outside the
pleadings, explicit notice is not required. See id.
Regency received implicit notice that its motion might be
converted to one for summary judgment and has had a
reasonable opportunity to present materials outside the
pleadings. Regency's own attachment to its motion
precipitated this issue. (See D.N. 24-2) Converting
a motion to one for summary judgment without giving explicit
notice is appropriate where the movant is the first to attach
material outside the pleadings. See S. Rehab. Grp.,
P.L.L.C. v. Burwell, 683 F. App'x 354, 361 (6th Cir.
Jan. 18, 2017) (“Not only did plaintiffs have the
opportunity to respond to the relevant issue prior to the
conversion, they effectively caused it.”). Moreover,
Regency has had a reasonable opportunity to present
additional materials. Tyson raised the issue of conversion in
her response brief. (See D.N. 25, PageID # 130-31)
In reply, Regency did not request time to procure additional
materials. (See D.N. 27) Cf. Sanders v.
Bottom, No. 5: 14-417-DCR, 2016 WL 740429, at *2 (E.D.
Ky. Feb. 24, 2016) (declining to convert a motion to dismiss
to one for summary judgment where “[t]he plaintiffs
requested additional time to take discovery before
adjudication of the motion”). In fact, Regency attached
additional material outside the pleadings to its reply,
signaling acquiescence to Tyson's request that the motion
be treated as one for summary judgment. (See D.N.
27-1) In short, Regency cannot claim to be surprised by the
Court's conversion of its motion.
notice required as to Tyson. Tyson cannot claim surprise
given that it was Tyson who argued that the motion should be
treated as one for summary judgment. (D.N. 25, PageID # 130)
Moreover, Tyson had a reasonable opportunity to present
materials outside the pleadings, evidenced by the fact that
she attached five exhibits to her response. (See
D.N. 25-1; D.N. 25-2; D.N. 25-3; D.N. 25-4; D.N. 25-5) In her
response, Tyson does not request time to procure additional
materials. She merely argues that she “should be given
a reasonable opportunity to present all material pertinent to
the motion.” (D.N. 25, PageID # 130) In considering the
attached exhibits, the Court is granting Tyson such an
opportunity. The Court will therefore treat Regency's
motion as one for summary judgment. The standard applied to a
motion for summary judgment is different from the standard
applied to a motion to dismiss.
order to avoid dismissal under Rule 12 for failure to state a
claim, “a complaint must [merely] 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)). In contrast, summary judgment will be
granted “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). On a
motion for summary judgment, the movant “bears the
initial responsibility of informing the district court of the
basis for its motion and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The movant may do so
by merely showing that the nonmoving party lacks evidence to
support an essential element of its case for which it has the
burden of proof. See id.
moving party satisfies this burden, the nonmoving party must
point to specific facts in the record demonstrating a genuine
issue of fact for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). To survive a motion
for summary judgment, the nonmoving party must establish a
genuine issue of material fact with respect to each element
of each of its claims. Celotex Corp., 477 U.S. at
323 (1986) (noting that “a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial”).
The mere existence of a scintilla of evidence in support of
the nonmoving party's position will be insufficient;
instead, the nonmoving party must present evidence upon which
the jury could reasonably find for it. Hartsel v.
Keys, 87 F.3d 795, 799 (6th Cir. 1996) (citing
Anderson, 477 U.S. at 252). Still, the Court must
view the evidence in the light most favorable to the
nonmoving party. Loyd v. Saint Joseph Mercy Oakland,
766 F.3d 580, 588 (6th Cir. 2014) (citing Anderson,
477 U.S. at 255).
Kentucky, personal-injury and medical-negligence claims must
be commenced within one year after the cause of action
accrued. Ky. Rev. Stat. § 413.140(1)(a), (e).
Such claims are deemed to accrue “at the time the
injury is first discovered or in the exercise of reasonable
care should have been discovered.” § 413.140(2);
see also Harrison v. Valentini, 184 S.W.3d 521, 524
(Ky. 2005) (“[A]ctual or constructive knowledge of the
medical negligence triggers the commencement of the statute
of limitations.”); Dixon v. Clem, 404
F.Supp.2d 961, 965 (E.D. Ky. 2005) (finding that
personal-injury claims accrue when the plaintiff discovers or
in the exercise of reasonable diligence should have
discovered her injury (citing Louisville Tr. Co. v.
Johns-Manville Prods. Corp., 580 S.W.2d 497, 501 (Ky.
1979))). Additionally, “[t]he knowledge necessary to
trigger the statute is two-pronged; one must know: (1) he has
been wronged; and, (2) by whom the wrong has been
committed.” Wiseman v. Alliant Hosps., Inc.,
37 S.W.3d 709, 712 (Ky. 2000); see also Dixon, 404
F.Supp.2d at 965 (“[Personal injury claims] begin[ ] to
run from the date the plaintiff discovers or in the exercise
of reasonable diligence should have discovered not only that
he has been injured but also that his injury may have been
caused by the defendant's conduct.” (quoting
Louisville Tr. Co., 580 S.W.2d at 501 (internal
quotations omitted))). Finally, “it is the date of the
actual or constructive knowledge of the injury” (i.e.,
“the invasion of any legally protected interest of
another”), rather than harm and symptoms, “which