UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYL VANIA

)

Scott Ruffing and Kimberly Ruffing, ) Civil Action No. 02-CV-4422

)

Plaintiffs, )

)

vs. ~ )

)

Kalmar Industries, USA; Inc. and KI-NJ, LLC )

et al. )

)

Defendants. )

)

ORDER

AND NOW, this day of 2003, upon consideration of Defendant TES,

Inc.'s Motion to Dismiss Pursuanto Federal Rule of Civil Procedure 12(b)(6) and any response thereto,

it is hereby ORDERED and DECREED that Plaintiffs' Second Amended Complaint against Defendant

TES, Inc. is dismissed with prejudice.

BY THE COURT:

J.

93259.1 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

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Case 2:02-cv-04422-TJS Document 16 Filed 05/16/2003 Page 1 of 11
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

)

Scott Ruffing and Kimberly Ruffing, ) Civil Action No. 02-CV-4422

)

Plaintiffs, )

, )

vs. )

)

Kalmar Industries, USA; Inc. and KI-NJ, LLC )

et al. )

)

Defendants. )

)

DEFENDANT TRANSPORTATION EQUIPMENT SERVICES, INC.'S

MOTION TO DISMISS PURSUANT TO F.R.C.P.12(b)(6)

Defendant Transportation Equipment Services, Inc. ("TES"), by and through its undersigned

counsel, hereby moves to dismiss plaintiffs' amended complaint for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6) and avers as follows:

1. This litigation was initiated on July 3, 2002 against Kalmar Industries U.S.A., Inc. and

fictitious parties identified as "John Does." An amended complaint was filed on August 23, 2002

against KI-NJ, LLC. On March 10, 2003, plaintiffs filed a motion for leave to amend the complaint to

name TES as a defendant. The motion was unopposed and an order was entered on March 24, 2003

allowing the amendment. The amended complaint was subsequently filed, and a copy served on to TES.

2. Plaintiffs' Second Amended Complaint alleges that on July 7, 2000, plaintiff Scott Ruffing

while employed by Novolog Bucks County, Inc. in Morrisville, Pennsylvania, was operating a Kalmar

forklift when the counterweight and back wheels broke off of the forklift, snapping the front of the

forklift and cab forward. A true and correct copy of the Second Amended Complaint is attached as

93491.1 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

THE CURTIS CENTER. SUITE 1130 EAST. INDEPENDENCE SQUARE WEST. PHIlADELPHIA, PA 19106

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Case 2:02-cv-04422-TJS Document 16 Filed 05/16/2003 Page 2 of 11
"} '"

Exhibit "A." Since plaintiffs accident allegedly occurred on July 7, 2000, the statute of limitations

expired on July 7, 2002.

3. The second amended complaint, which purports to change the name of a party from "John

Doe" to TES, was not filed until March 24, 2003, well past the expiration date for the statute of

limitations. Therefore, the claim is untimely as to TES unless it relates back to the original complaint.

Pursuanto F .R.C.P. 15( c), an amendment of a pleading relates back to the original complaint when:

(1) relation back is pennitted by the law that provides the statute of

limitations applicable to the action, or

(2) the claim or defense asserted in the amended pleading arose out of

the conduct, transaction, or occurrence set forth or attempted to be

set forth in the original pleading, or

(3) the amendment changes the party or the naming of the party

against whom a claim is asserted if the foregoing provision (2) is

satisfied and, within the period provided by Rule 4(m) for service

of the summons and complaint, the party to be brought in by

amendment

(A) has received such notice of the institution of the action that

the party will not be prejudiced in maintaining a defense on

the merits, and

(B) knew or should have known that, but for a mistake

concerning the identity of the proper party, the action

would have been brought againsthe party.

4. Rule 15(c)(3)(A) provides that a newly named defendant must have received notice of the

institution of the action within 120 days of the running of the statute of limitations, the period allowed

for service of the complaint by Rule 4(m) of the Federal Rules of Civil Procedure. Lockwood v. City of

Philadelphia, 205 F.R.D. 448 (E.D. Pa. 2002); Colbert v. City ofPhiladel~hia, 931 F.Supp. 389 (E.D.Pa.

1996). The notice required is that the lawsuit has been brought, not that the event giving rise to the

cause of action occurred. Lockwood, 205 F.R.D. at 451.

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93491.1 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

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Case 2:02-cv-04422-TJS Document 16 Filed 05/16/2003 Page 3 of 11
5. TES did not receive notice of the institution of this action within four months after the

original complaint was filed, the period allowed for service of the complaint by Rule 4(m) of the Federal

Rules of Civil Procedure. Since TES was not notified until after that time had expired, plaintiffs have

failed to comply with F.R.C.P. 15(c)(3). Accordingly, plaintiffs' second amended complaint against

"

defendant TES, Inc. should be dismissed for failure to state a claim pursuanto F.R.C.P. 12(b)(6).

Respectfully submitted,

WILSON, ELSER, MOSKOWITZ

EDELMAN & DICKER LLP

By:

Jonathan Dryer, Esquire

Michael S. Takacs, Esquire

Attorney ill. Nos. 34496/78409

The Curtis Center, Suite 1130E

Philadelphia, PA 19106

Attorneys for Defendant

TES, Inc.

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93491.1 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

THE CURTIS CENTER. SUITE 1130 EAST. INDEPENDENCE SQUARE WEST. PHILADELPHIA. PA 19106

PHONE: (215) 627-6900. FAX: (215) 627-2665

Case 2:02-cv-04422-TJS Document 16 Filed 05/16/2003 Page 4 of 11
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYL VANIA

)

Scott Ruffing and Kimberly Ruffing, ) Civil Action No. 02-CV-4422

)

Plaintiffs, )

, )

vs. )

)

Kalmar Industries, USA; Inc. and KI -NJ, LLC )

et al. )

)

Defendants. )

)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S

MOTION TO DISMISS PURSUANT TO F.R.C.P.12(b)(6)

Defendant Transportation Equipment Services, Inc. ("TES"), by and through its undersigned

counsel, submits this brief in support of its motion to dismiss plaintiffs' amended complaint for failure

to state a claim pursuanto Federal Rule of Civil Procedure 12(b)(6).

BACKGROUND

This litigation was initiated on July 3,2002 against Kalmar Industries U.S.A., Inc. and fictitious

parties identified as "John Does." An amended complaint was filed on August 23, 2002 against KI-NJ,

LLC. On March 10, 2003, plaintiffs filed a motion for leave to amend the complaint to name TES as a

defendant. The motion was unopposed by the parties of record (TES was neither served with a copy of

the motion nor otherwise advised of its pendency) and an order was entered on March 24, 2003 allowing

the amendment. The Second Amended Complaint was subsequently filed and served on TES.

The Second Amended Complaint alleges that on July 7, 2000, plaintiff Scott Ruffing was

employed by Novolog Bucks County, Inc. in Morrisville, Pennsylvania, and operating a Kalmar forklift

93247.1 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

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PHONE: (215) 627-6900. FAX: (215) 627-2665

Case 2:02-cv-04422-TJS Document 16 Filed 05/16/2003 Page 5 of 11
!

when the counterweight and back wheels broke off of the forklift, snapping the front of the lift and the

cab forward. A true and correct copy of the Second Amended Complaint is attached as Exhibit "A."

Since plaintiff's accident allegedly occurred on July 7, 2000, the statute of limitations expired on

July 7, 2002. The second amended co~plaint, which first specifically named TES as a defendant, was

not filed until March 24, 2003, well past the expiration date for the statute of limitations. Although

plaintiffs' original complaint, which was filed within the statute of limitations, named various "John

Doe" fictitious parties, plaintiffs did not timely or proper.ly amend the complaint to substitute TES for

the John Doe defendants so as to enable the amendment to relate back to the filing of the original

complaint. Accordingly, TES should be dismissed from this action.

LEGAL ARGUMENT

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move for dismissal of an action

for failure to state a claim upon which relief can be granted. A complaint may be dismissed on motion

for failure to state a claim when the complaint facially shows noncompliance with the applicable statute

of limitations period, Johnstone v. U.S., 980 F. Supp. 148 (E.D. Pa. 1997).

Even assuming the propriety of the designation of "John Doe" defendants,1 in order to change

the name of a party from "John Doe" to TES after the expiration of the statute of limitations, plaintiffs

must satisfy Federal Rule of Civil Procedure 15(c), which provides that an amendment of a pleading

relates back to the original complaint when:

1 Pennsylvania law does not recognize the practice of naming fictitious individuals as parties to a lawsuit. ~

Grandelli v. Methodist HosRital, 777 A.2d 1138 (Pa. Super. 2001); Fischer v. Kassab, 306 A.2d 809 (Pa. Cmwlth. 1976);

Moletta v. Richards, 9 D.&C.3d 470 (Allegheny CCP 1978).

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PHONE: (215) 627-6900. FAX: (215) 627-2665

~ -

Case 2:02-cv-04422-TJS Document 16 Filed 05/16/2003 Page 6 of 11
~-

(1) relation back is perntitted by the law that provides the statute of

limitations applicable to the action, or

(2) the claim or defense asserted in the amended pleading arose out of

the conduct, transaction, or occurrence set forth or attempted to be

set forth in the original pleading, or

(3) the amendment changes the party or the naming of the party

against whom a claim is asserted if the foregoing provision (2)

is satisfied and, within the period provided by Rule 4(m) for

service of the summons and complaint, the party to be brought

in by amendment

(A) has received such notice of the institution of the action

that the party will not be- prejudiced in maintaining a

defense on the merits, an.d

(B) knew or should have known that, but for a mistake

concerning the identity of the proper party, the action

would have been brought against the party.

Rule 15( c) requires that a newly named defendant must have received notice of the institution of

the action within 120 days of the running of the statute of limitations, the period allowed for service of

the complaint by Rule 4(m) of the Federal Rules of Civil Procedure. Lockwood v. City of Philadel}2hia,

205 F.R.D. 448 (E.D. Pa. 2002). Significantly, the notice required is that the lawsuit has been brought,

not that the event giving rise to the cause of action occurred. 14. at 451. Therefore, since the statute of

limitations expired on July 7, 2002, plaintiffs had 120 days from that date in which to notify TES of the

lawsuit. This was not done.

In Colbert v. City of Philadelphia, 931 F. Supp. 389 (E.D. Pa. 1996), plaintiff sued the City of

Philadelphia, the Philadelphia Police Commissioner and three police officers alleging civil rights

violations under 42 V.S.C. §1983 as well as various state law torts. The complaint initially named as

defendants only the Philadelphia Police Commissioner and three unnamed police officers denominated

as John Doe police officer, Jane Doe police officer no. 1 and Jane Doe police officer no. 2. In April

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Case 2:02-cv-04422-TJS Document 16 Filed 05/16/2003 Page 7 of 11
1996, ten months after the action had been started, plaintiffs filed an amended complaint which named

the City of Philadelphia as a defendant and substituted as defendants police officers Marvin King, Janice

Little and Karen Lee for the previously unidentified John and Jane Does. The case was removed to

federal court and the defendants filed a motion to dismiss pursuant to Rule 12(b)(6). IQ. at 391.

,

The basis for the motion to dismiss by the police officers was that the §1983 claims were subject

to a two-year statute of limitations. The incident giving rise to the lawsuit allegedly occurred on June 3,

1993 and the police officers were not joined by name irntil April 3, 1996, well beyond the two-year

statute of limitations. In determining whether the claims "related back" to the original complaint in

accordance with the provisions of Rule 15(c) of the Federal Rules of Civil Procedure, the court stated:

Where, as here, the amendment to the complaint changes the name of the

party, both Rule 15(c)(2) and (c)(3) must be satisfied. Plaintiffs'

complaint was amended in two ways as to the individual defendants.

First, identified police officers replaced the anonymous John Doe and Jane

Doe defendants. Second, the amended complaint added allegations that

these defendants violated the plaintiffs' federal constitutional rights. The

amended complaint clearly meets the requirement of Rule 15(c)(2). The

new federal claims against the individual officers alleging excessive force

'arose out of the conduct, transaction, or occurrence set forth... in the

original pleading,' namely, the incident in which Mr. Colbert was arrested.

However, plaintiffs must also satisfy Rule 15(c)(3). In this regard they

fail. Under Rule 15(c)(3), the party to be brought in by amendment must

have received notice of the institution of the action within the period given

for service of the complaint by Rule 4(m) of the Federal Rules of Civil

Procedure. A party has four months under Rule 4(m) in which to serve a

complaint after it is filed. Since the events giving rise to this lawsuit

occurred on June 3, 1993, the statute of limitations expired on June 3,

1995. Under Rule 15(c), plaintiffs had four additional months in which to

satisfy the requirement of notice. Plaintiffs therefore had until October 3,

1995 in which to notify the officers of the lawsuit pending against them.

IQ. at 392.

'-'

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93247.1 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

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Case 2:02-cv-04422-TJS Document 16 Filed 05/16/2003 Page 8 of 11
Since plaintiffs have the burden of proof on this issue and the court found that they presented no

evidence that the individual defendants had any notice of the institution of the suit prior to April 4, 1996

when the amended complaint was served, the court held that the amendment as to the individual

defendants did not relate back to the original complaint. IQ.

In Frasier v. City of Philadelphia, 927 F. Supp. 881 (E.D. Pa. 1996), the court addressed the issue

of the effect of naming a John Doe defendant on the statute of limitations. Anthony Frasier was shot by

police on October 20, 1992 and died a few days later. On. October 18, 1994, plaintiff filed a praecipe for

writ of summons in the Philadelphia Court of Common Pleas and named as defendants the City, the

police department, Officer John Doe No.1 and Officer John Doe No.2. Plaintiff filed a complaint in

the Court of Common Pleas on February 22, 1995 and the City and police department removed the case

to the Eastern District on March 9, 1995. Thereafter, the parties agreed to stipulate to the amendment of

the complaint to name the two officers referred to as John Does Nos. 1 and 2. Service of the summons

and complaint was made on the officers on October 6, 1995.

After reviewing the scant Pennsylvania case law, the court concluded that the John Doe

designations in plaintiffs praecipe for a writ of summons did not effectively commence an action

against the detectives and therefore all claims against them were time barred. IQ. at 883. However, the

court's inquiry did not end there. The court applied Federal Rule of Civil Procedure 15(c) to the facts of

the case and determined that relation back was not proper because there was no way that the officers

could have known within the relevant time period that being brought into the suit was a distinct

possibility since the summons failed to name the police officers, give any of the underlying facts or even

give the date of shooting. Accordingly, the court granted defendant's motion to dismiss. ~,~,

Lockwood, §Ynrn.

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Case 2:02-cv-04422-TJS Document 16 Filed 05/16/2003 Page 9 of 11
In this case, TES did not receive notice of the institution of this action within four months after

the original complaint was filed, the period allowed for service of the complaint by Rule 4(m) of the

Federal Rules of Civil Procedure. Since the statute of limitations expired on July 7, 2002, plaintiffs had

four additional months from that date in which to satisfy the requirements of Rule 15( c), notify TES of .

the lawsuit. Since TES was not notified until after that time had expired, plaintiffs have failed to comply

with F.R.C.P. 15(c)(3), the Second Amended Complaint against defendant TES, Inc. does not relate

back to the original complaint and the action should be d~smissed for failure to state a claim pursuant to

FoR.C.P.12(b)(6). .

Respectfully submitted,

WILSON, ELSER, MOSKOWITZ

EDELMAN & DICKER LLP

By:

Jonathan Dryer, Esquire

Michael S. Takacs, Esquire

Attorney !.D. Nos. 34496/78409

The Curtis Center, Suite 1130E

Philadelphia, PA 19106

Attorneys for Defendant

TES, Inc.

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93247.1 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

THE CURTIS CENTER. SUITE 1130 EAST .INDEPENDENCE SQUARE WEST. PHILADELPHIA, PA 19106

PHONE: (215) 627-6900. FAX: (215) 627-2665

Case 2:02-cv-04422-TJS Document 16 Filed 05/16/2003 Page 10 of 11
CERTIFICATE OF SERVICE

Michael S. Takacs, Esquire, attorney for Defendant TES, Inc., certifies that on May -' 2003,

he sent by United States mail, first class, postage prepaid, a true and correct copy of Defendant's Motion

to Dismiss Pursuant to F.R.C.P. 12(b)(6) to: "

Richard A. Stoloff, Esquire

605 New Road

Linwood,NJ 08221

Jason Banonis, Esquire

Marshall, Dennehey, Warner, Coleman 8;; Goggin

10 N. Main Street, 2nd Floor

Doylestown, P A 18901-4318

Michael S. Takacs, Esquire

93261.1 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

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Case 2:02-cv-04422-TJS Document 16 Filed 05/16/2003 Page 11 of 11