United States District Court, W.D. Kentucky, Bowling Green Division
NATHAN MATSON, as the Ancillary Administrator of the ESTATE OF JORDON ALEXA MAYS, deceased; and M.A.M., an infant, by and through his father and next friend, NATHAN MATSON PLAINTIFFS
BIR TRUCK & TRAILER REPAIR, LLC, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, Chief Judge.
matter is before the Court on Defendant's Partial Motion
to Dismiss (DN 28). The motion has been fully briefed and is
ripe for adjudication. For the reasons outlined below, the
motion is GRANTED.
STATEMENT OF FACTS AND CLAIMS
a tort action brought under diversity jurisdiction in which
Plaintiffs make claims for negligence resulting in wrongful
death and loss of parental consortium against Defendants,
including BIR Truck & Trailer Repair, LLC
(“Defendant”), following the death of Jordan
Alexa Mays (“Mays” or “decedent”).
(Compl. ¶¶ 1, 13-17, DN 1). Mays, a citizen of
Alabama, was killed on October 20, 2015, in a motor vehicle
accident in Alabama allegedly caused by a tractor-trailer
whose braking system had been serviced by Defendant at its
repair shop in Franklin, Kentucky. (Compl. ¶¶
8-10). Plaintiff was appointed administrator of the
decedent's estate in Alabama on November 6, 2015, and was
later appointed ancillary administrator in Kentucky on
October 20, 2017. (Compl. ¶¶ 11-12; Compl. Ex. A,
DN 1-1; Compl. Ex. B, DN 1-2). Plaintiff filed this action on
October 20, 2017, but the Summons was not issued by the clerk
until October 25, 2017, due to a redaction issue. (Order, DN
3; Mot. Leave File Redacted Docs., DN 5; Summons, DN 7).
Court has subject matter jurisdiction under 28 U.S.C.
§§ 2201 and 1332(a) because there is diversity of
citizenship between the parties and the amount in controversy
exceeds $75, 000, exclusive of interest and costs.
STANDARD OF REVIEW
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), 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) (citation omitted).
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 complaint
will be dismissed pursuant to Rule 12(b)(6) if no law
supports the claims made, if the facts alleged are
insufficient to state a claim, or if the face of the
complaint presents an insurmountable bar to relief.”
Southfield Educ. Ass'n v. Southfield Bd. of
Educ., 570 Fed.Appx. 485, 487 (6th Cir. 2014) (citing
Twombly, 550 U.S. at 561-64).
seeks dismissal of Plaintiff's wrongful death claim
contending that the lawsuit was not filed within the
applicable statute of limitations. (Def.'s Partial Mot.
Dismiss 1, 4-10, DN 28 [hereinafter Def.'s Mot.];
Def.'s Reply Partial Mot. Dismiss 5-11, DN 32
[hereinafter Def.'s Reply]). Plaintiff maintains the
action was timely filed, arguing that the limitations period
did not begin to run until his appointment in Kentucky as
ancillary administrator of Mays' estate. (Pl.'s Resp.
Def.'s Partial Mot. Dismiss 6-10, DN 31 [hereinafter
courts sitting in diversity must apply the procedural law of
the forum, here Kentucky, including its statutes of
limitations.” Combs v. Int'l Ins. Co., 163
F.Supp.2d 686, 690 (E.D. Ky. 2001) (citing Elec. Power
Bd. of Chattanooga v. Monsanto Co., 879 F.2d 1368, 1375
(6th Cir. 1989)). “In deciding what law applies to a
particular case, one must first look to the forum state's
choice of law statute.” Elec. Power Bd. of
Chattanooga, 879 F.2d at 1375 (citing Erie R.R. Co.
v. Tompkins, 304 U.S. 64 (1938); Day &
Zimmermann, Inc. v. Challoner, 423 U.S. 3 (1975)).
sister court has explained, “Kentucky has a
‘borrowing statute' that, when applicable,
‘borrows' the limitations period of another state
where a cause of action accrues, when that period is shorter
than Kentucky's limitations period. The borrowing statute
is triggered only when the cause of action accrued in another
jurisdiction.” Combs, 163 F.Supp.2d at 691
(internal citation omitted). The statute provides:
When a cause of action has arisen in another state or
country, and by the laws of this state or country where the
cause of action accrued the time for the commencement of an
action thereon is limited to a shorter period of time than
the period of limitation prescribed by the laws of this state
for a like cause of action, then ...