United States District Court, E.D. Kentucky, Central Division, Lexington
GARY E. HUGHES, et al., Plaintiffs,
RED RIVER GORGE ZIPLINE, LLC, d/b/a Red River Gorge Zipline Tours, et al., Defendants.
OPINION AND ORDER
E. WIER UNITED STATES DISTRICT JUDGE.
moved to “file an amended complaint pursuant to Fed. R.
Civ. Pro. 15(a)(2).” DE #11 (Motion). Defendant Red
River Gorge Zipline, LLC (RRG), opposed. DE #13 (Response).
Plaintiffs did not reply. For the following reasons, the
Court DENIES Plaintiffs leave to amend.
31, 2017, Gary and Laura Hughes sued RRG and three
“Unknown Defendants” in Wolfe Circuit Court.
See DE #1-1 (Complaint). The claims arise from Mr.
Hughes's unhappy experience ziplining in Red River Gorge,
which allegedly ended with him “crash[ing] into the
structural beam which supported the zipline and
platform[.]” Id. at ¶ 16. After
answering, DE #1-4, RRG removed the case to this court. DE #1
(Notice of Removal). Judge Caldwell instituted a case
schedule, DE #7, and, under the Scheduling Order, Plaintiffs
timely moved to amend the complaint. The Chief Judge's
case transfer, DE #23, sent the matter to the undersigned.
grounds for th[e] motion, ” Plaintiffs state that they
“have discovered the identity of the individuals who
were negligent in attending to Gary Hughes while he
participated in the zipline course.” DE #11, at 1.
Specifically, Plaintiffs seek to add as party-defendants
Michael Ammerman, Peter Watson, and Andrew Sykut.
See DE #11-1. The Hugheses claim that these people
“were unknown” to them “until Defendant
responded to discovery requests.” DE #11, at 1. The
motion cites no law. RRG opposes amendment, contending, based
on particular analyses, that “the proposed amendment
would be futile” and “is a blatant attempt to
destroy this Court's subject matter jurisdiction.”
DE #13, at 2. Plaintiffs did not reply to either argument.
context, “a party may amend its pleading only with the
opposing party's written consent or the court's
leave. The court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). RRG opposes the
proposed amendment, so the question becomes whether the court
should give leave to amend. “A court need not grant
leave to amend . . . where amendment would be
‘futile.'” Miller v. Calhoun Cnty.,
408 F.3d 803, 817 (6th Cir. 2005) (quoting Foman v.
Davis, 83 S.Ct. 227, 230 (1962)).
proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.” Rose
v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420
(6th Cir. 2000). Evaluating a 12(b)(6) motion to dismiss
requires the Court to “accept as true all factual
allegations, but not legal conclusions or unwarranted factual
inferences.” Theile v. Michigan, 891 F.3d 240,
243 (6th Cir. 2018) (internal quotation marks removed).
“The plaintiff[s] must present a facially plausible
complaint asserting more than bare legal conclusions. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556
U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868
the statute of limitations is an affirmative defense, it
nevertheless may support a Rule 12(b) dismissal if there is
no question, given the complaint's facial allegations,
that the defense applies. Thus, where the proposed amended
complaint's allegations demonstrate on their face that
the applicable statute of limitations bars the claims that
the amendment asserts, the district court may properly deny
leave to amend as futile.” Clark v. Viacom
Int'l, Inc., 617 Fed.Appx. 495, 500 (6th Cir. 2015)
(citation removed); see also, e.g., Wilson v.
Morgan, 477 F.3d 326, 344 (6th Cir. 2007) (approving
reasoning that a “proposed amendment seek[ing] to add
new defendants” was “futile” because
“such claims would be barred by the statute of
limitations”); Flint v. Target Corp., 362
Fed.Appx. 446, 450 n.2 (6th Cir. 2010).
Kentucky, the statute of limitations for personal injury and
loss of consortium claims, which the Hugheses here bring, is
1 year “after the cause of action accrued, ”
i.e., here, 1 year after the injury. See
KRS 413.140(1)(a); Carroll v. Owens-Corning Fiberglas
Corp., 37 S.W.3d 699, 700 (Ky. 2000); Floyd v.
Gray, 657 S.W.2d 936, 938 (Ky. 1983) (“An action
for loss of consortium is required to be brought within one
year after the injury.”). Here, the injury allegedly
occurred on August 7, 2016. DE #1-1, at ¶ 9. Plaintiffs
filed the motion to amend on March 27, 2018, well more than 1
year after the injury. See DE #11. Accordingly, the
1-year statute of limitations facially bars the claims
against the newly-identified putative defendants. Plaintiffs
do not contest this.
possible tolling (although the Hugheses, too, make no
argument on this front), RRG points out that Kentucky
plaintiffs have a duty “to exercise reasonable
diligence to discover . . . the identity of the tortfeasor[s]
within the time prescribed by the statute of
limitations.” Fluke Corp. v. LeMaster, 306
S.W.3d 55, 56, 60-61 (Ky. 2010). The Hugheses'
“awareness of an injury and of the instrumentality
causing the injury is enough to trigger the limitations clock
and to impose on [them] the duty to discover the responsible
parties.” Id. at 64. Plaintiffs do not dispute
that they were aware of the injury to Mr. Hughes, and the
instrumentality causing it, on August 7, 2016, when he openly
and obviously “crashed into the structural beam which
supported the zipline and platform which resulted in physical
injury and damages[.]” DE #1-1, at ¶ 16; see
also DE #11-1, at ¶ 16 (essentially same, adding
that the structural beam was “unpadded” and
“metal”). The cause of action, if any, was
evident that day.
argues, and Plaintiffs do not dispute, the record does not
reveal “reasonable diligence” on behalf of the
Hugheses to discover the identity of the “unknown
defendants” within the 1-year limitation period.
See DE #13, at 4. Indeed, Plaintiffs base their
motion on the discovery of the alleged individual
tortfeasors' identities only after “Defendant
responded to discovery requests.” DE #11, at 1.
Critically, though, the Hugheses did not even serve
these discovery requests until after the statute of
limitations already expired. See DE #13-2, at 17
(indicating service on 11/17/17). Such dilatory action does
not evidence “reasonable diligence to discover . . .
the identity of the tortfeasor[s.]” Again, faced with
RRG's response, the Hugheses made no reply and no effort
to establish their diligence. This is not a “truly
exceptional circumstance” justifying “delaying .
. . the running of the statute of limitations[.]”
Fluke Corp., 306 S.W.3d at 67.
Court likewise agrees with RRG (though, again, Plaintiffs
make no counterargument) that the proposed amendment, in
these circumstances, would not relate back, under
Fed.R.Civ.P. 15(c), to the original complaint. “[A]n
amendment which adds a new party creates a new cause of
action and there is no relation back to the original filing
for purposes of limitations.” Asher v. Unarco Mat.
Handling, Inc., 596 F.3d 313, 318-19 (6th Cir. 2010);
Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996)
(“Sixth Circuit precedent clearly holds that new
parties may not be added after the statute of limitations has
run, and that such amendments do not satisfy the
‘mistaken identity' requirement of Rule
15(c)(3)(B). . . . Substituting a named defendant for a
‘John Doe' defendant is considered a change in
parties, not a mere substitution of parties. Therefore, the
requirements of Fed.R.Civ.P. 15(c) must be met in order for
the amendment adding the named defendant to relate back to
the filing of the original complaint.”); Brown v.
Cuyahoga Cnty., 517 Fed.Appx. 431, 433-35 (6th Cir.
2013); Beverly v. MEVA Formwork Sys., Inc., 500
Fed.Appx. 391, 395 (6th Cir. 2012); Smith v. City of
Akron, 476 Fed.Appx. 67, 69-70 (6th Cir. 2012).
this analysis, Plaintiffs' proposed amendment is futile
because the proposed claims against Ammerman, Watson, and
Sykut would be barred as outside the applicable statute of
limitations. The amendment would not relate back to the
original complaint under Rule 15(c). Accordingly, the Court
DENIES DE #11.