IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60291

Summary Calendar

JONATHAN DAVIS TURNAGE, and wife; ANGELA TURNAGE, 

 Plaintiffs - Appellants

v.

MCCONNELL TECHNOLOGIES, INCORPORATED, AN ALABAMA 

CORPORATION, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:14-CV-124

Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

The district court held that the statute of limitations barred the 

Turnages’ products liability case. McConnell Technologies raised the statute 

of limitations challenge through a motion to dismiss for failure to state a claim. 

FED R. CIV. P. 12(b)(6). In this appeal, the Turnages argue that the district 

court took an improper look outside the pleadings in order to rule against them. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 12, 2016

Lyle W. Cayce

Clerk

 Case: 16-60291 Document: 00513793092 Page: 1 Date Filed: 12/12/2016
No. 16-60291

2

Because the district court did no more than consider the parties’ arguments 

filed in briefs accompanying the pleadings, we affirm.

I.

On March 23, 2011, Jonathan Turnage was working at a lumber 

company when an augur he was maintaining cut off several of his fingers. On 

March 24, 2014, the Turnages filed a lawsuit in Mississippi court against the 

manufacturer of the augur. They alleged that the augur was defectively 

designed or manufactured. The suit was timely filed but with no time to 

spare—their products liability claim was subject to a three-year statute of 

limitations. MISS. CODE § 15-1-49(1). In their original pleading, the Turnages 

did not identify the manufacturer of the augur but instead named fictitious 

John Does as placeholders. Mississippi allows plaintiffs to do this when they 

are ignorant of an opposing party’s name. MISS. R. CIV. P. 9(h).

Another defendant in the case, MesserSmith Manufacturing, removed 

the suit to federal district court.1 At the end of January 2015, the Turnages 

amended their complaint to add “McConnell Sales and Engineering 

Corporation, Inc.” as a defendant. After this, months passed as the case sat on 

the district court’s docket. This prompted the court to enter two orders to show 

cause why the case should not be dismissed for failure to prosecute it. In 

response, the Turnages amended their complaint again on August 27, 2015 to 

add the present appellee, McConnell Technologies, Inc., as a defendant. 

McConnell Technologies then filed a motion to dismiss under Rule 

12(b)(6). It asserted that the Turnages’ claims against it in their amended 

complaint were barred by the statute of limitations and did not relate back to 

their timely complaint of March 24, 2014. After receiving briefing from both 

sides, the district court granted the motion to dismiss. The Turnages 

 

1 MesserSmith was later dismissed for lack of personal jurisdiction. 

 Case: 16-60291 Document: 00513793092 Page: 2 Date Filed: 12/12/2016
No. 16-60291

3

responded by filing a motion for reconsideration or new trial arguing that the 

court had improperly considered matters outside of the pleadings to decide the 

motion to dismiss. See FED R. CIV. P. 12(d). The district court denied this 

motion as well, and the Turnages timely appealed.

II.

The Turnages raised only one issue in their opening brief to this court. 

They argue that the district court improperly considered matters outside of the 

pleadings when deciding McConnell Technologies’ motion to dismiss and 

otherwise improperly weighed the evidence rather than accepting the 

allegations in their pleadings as true. Specifically, the Turnages find fault 

with the court’s admitted reliance on representations contained in their own 

briefing in response to the motion to dismiss. According to the Turnages, the 

court had to rely on these materials in order to find that they had not exercised 

reasonable diligence in ascertaining the identity of McConnell Technologies, a 

key issue in whether their amended complaint related back to their initial, 

timely filing.

In order to qualify as timely under Mississippi’s three-year statute of 

limitations for products liability claims, the Turnages’ amended complaint 

naming McConnell Technologies had to be treated as relating back to the date 

of their original complaint in Mississippi state court. See MISS. CODE § 15-1-

49(1). Federal Rule of Civil Procedure 15(c)(1)(A) allows an amended pleading 

to relate back to the date of the original pleading when “the law that provides 

the applicable statute of limitations allows relation back.” In this case, the 

applicable statute of limitations comes from the law of Mississippi. Mississippi 

law allows relation back when a named defendant is substituted for a John 

Doe defendant but only if the plaintiff conducted a “reasonably diligent inquiry 

into the identity of the fictitious party.” Doe v. Miss. Blood Servs., Inc., 704 So. 

2d 1016, 1019 (Miss. 1997). The Mississippi Supreme Court also made a 

 Case: 16-60291 Document: 00513793092 Page: 3 Date Filed: 12/12/2016
No. 16-60291

4

distinction in Doe between parties who could only be identified with the help 

of judicial discovery and those whom a plaintiff could identify through his or 

her own investigation. Id.

In its order denying the Turnages’ motion for reconsideration or new 

trial, the district court explained the basis for its decision: 

According to Plaintiffs’ response to Defendant’s motion to 

dismiss, they discovered the identity of the proper Defendant after 

simply asking Plaintiff Jonathan Turnage’s employer who serviced 

the equipment after the accident. This route of investigation 

could—and should—have been pursued before filing suit, and 

Plaintiffs have offered no explanation for why they waited until 

over a year later to do so.

There is nothing improper about the district court considering the content of 

briefing that supports or opposes a motion under Rule 12(b)(6) when deciding 

such a motion. When matters outside the pleadings are presented to the court 

in connection with a motion under Rule 12(b)(6), the motion must be treated 

as a Rule 56 motion for summary judgment and appropriate notice given to the 

parties. FED R. CIV. P. 12(d). We have held though that “briefs and oral 

arguments in connection with the motion . . . are not considered matters 

outside the pleadings for purposes of conversion.” Gen. Retail Servs, Inc. v. 

Wireless Toyz Franchise, LLC, 255 F. App’x 775, 785 (5th Cir. 2007) (quoting 

5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND 

PROCEDURE § 1366 (3d ed. 2004)). The district court thus did not violate the 

Rules of Civil Procedure when it relied on the Turnages’ representations in 

their briefing in order to decide the motion briefed. Likewise, the court did not 

improperly weigh the evidence against the Turnages when it accepted as true 

their own statements to the court.

* * *

The judgment is AFFIRMED.

 Case: 16-60291 Document: 00513793092 Page: 4 Date Filed: 12/12/2016