### 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 Tu rnages’ products liability case . McConnell Technologies raised the statute of limitations challenge through a motion to dismiss for failure to state a claim

. F ED R. C IV

. P. 12(b)(6). In this appeal, the Turna ges argue that the district
court took an improper look outside the pleadi ngs in order to rule against them.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . 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: 12/12/2016No. 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, th e Turnages filed a lawsu it in Mississippi court against the manufacturer of the augur. They alleged that the augur was defectively designed o r manufactured

. The suit was timely filed but with no time to

spare

— t heir products liability claim was subject to a thre e
- year statute of limitations. M ISS

. C ODE § 15

- 1

- 49(1). In their original pleading, the Turnages did not identify the manufacturer o f the augur but instead named fictitious John Doe s a s placeholder s
. Mississippi allows plaintiffs to do this when they are ignorant of an opposing party’s name. M ISS

. R

. C IV

. 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 defend ant. 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 complain t 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 Turnage s’ claims against it in their amended complain t w ere 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 Turnage s

1 MesserSmith wa s later dismissed for lack of personal jurisdiction. Case: 16-60291 Document: 00513793092 Page: 2 Date Filed: 12/12/2016No. 16

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3 responded by filing a motion for recons ideration or new trial arguing that the court had improperly considered matters outside of the pleadings to decide the motion to dismiss. See F ED R. C IV

. P. 12(d). The district court denied this motion as well, and the Turnage s timely appealed. II. The Turnage s raise d 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 evi dence rather than accepting the allegations in their pleadings as true. Specifically, the Turnage s 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 Tur nage s, 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 f iling. In order to qualify as timely under Mississippi’s three

- year statute of limitations for products liability claims, the Turnage s’ amended complaint naming McConnell Technologies had to be treated as relating back to the date of their original compla int in Mississippi state court. S ee M ISS

. C ODE § 15

- 1

- 49(1). Federal Rule of Civil Procedure 1 5 (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 allo ws 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 “reasonabl y 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: 12/12/2016No. 16

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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 T urnages’ motion for reconsideration or new trial, the district court explained the basis for its decision: According to Pla intiffs’ 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

. W hen 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 mo tion for summary judgment and appropriate n otice given to the parties. F ED R. C IV

. 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 T oyz Franchise, LLC , 255 F. App’x 775, 785 (5th Cir. 2007) (quoting 5C C HARLES A LAN W RIGHT & A RTHUR R. M ILLER , F EDERAL P RACTICE AND P ROCEDURE § 1366 (3d ed. 2004)). The district court thus did not violate the Rules of Civil Pr ocedure when it relied on the T urnages’ 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