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Hadley v. Koerner

United States District Court, D. Kansas

June 12, 2018

MELISSA HADLEY, Plaintiff,
v.
KENNETH J. KOERNER, D.C., Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         This case arises from a previous case in this District, No. 14-cv-01055-KHV, which was dismissed for lack of subject-matter jurisdiction on November 21, 2016. Plaintiff Melissa Hadley claims this action was appropriately refiled according to the provisions of the Kansas saving statute, K.S.A. § 60-518. Defendant Kenneth Koerner now moves the Court to dismiss this action for failing to state a claim. For the reasons stated below, Koerner's motion to dismiss (Doc. 3) is denied.

         I. Factual and Procedural Background

         Hadley filed the original action against seven defendants on February 20, 2014, alleging medical malpractice arising from events occurring two years earlier on February 20, 2012. All defendants except Koerner were voluntarily dismissed by October 19, 2016. On November 21, 2016, Judge Vratil declined to exercise supplemental jurisdiction over the remaining claims against Koerner, thus dismissing the case for lack of subject matter jurisdiction.

         Hadley then filed a motion for alteration or amendment of judgment under Federal Rules of Civil Procedure 59(e) and 60(b), asking the Court to reconsider its dismissal, on December 19, 2016. On February 27, 2017, the Court entered a memorandum and order on Hadley's motion. Construing Hadley's motion under Rule 59(e), the Court concluded that Hadley pointed to no reason for the Court to exercise supplemental jurisdiction, and declined to reconsider its ruling.[1]

         Hadley filed this present action on August 26, 2017. In the Complaint, Hadley alleges, in relevant part:

6. On February 20, 2014, the Plaintiff timely commenced this action against Defendant Kenneth Koerner, D.C., by filing a Complaint with the Clerk of the United States District Court for the District of Kansas at Wichita.
7. Case number 14-CV-1055-KHV-KGS was pending, and continued to be pending to and including the date of February 27, 2017, which was a date three years and seven days after the original statute of limitations applicable to the Plaintiff's claims would have expired, at which time the claims still active and pending therein against Kenneth Koerner, D.C. were Dismissed Without Prejudice.
8. This Complaint is being refiled within six months from the date of February 27, 2017, pursuant to the provisions of the Kansas State Saving Statue, K.S.A. 60-518. The claims set forth herein arise out of the same core of operative facts and are the same as or substantially similar to those claims previously asserted against Defendant Kenneth J. Koerner, D.C. in Case Number 14-CV-1055-KHV-KGS.

         Normally, medical malpractice claims are limited by a two-year statute of limitations.[2] The Kansas saving statute does not change the period of limitation, but it grants a plaintiff who timely filed an action, but it “failed” otherwise than upon the merits, a six-month grace period to file a new action.[3] Hadley asserts that the original action did not fail until the Court denied the motion to reconsider on February 27, 2017. Thus, because of the saving statute, Hadley argues that her present action was timely filed within the six-month grace period on August 26, 2017.

         Koerner asserts that the original action failed when it was dismissed for lack of subject-matter jurisdiction on November 21, 2016. Koerner argues that the saving statute's six-month grace period for refiling began to run on that date, and expired on May 21, 2017. According to Koerner, because this action was not filed until August 26, 2017, Hadley's claims are barred by the statute of limitations.

         II. Legal Standard

         Koerner moves this Court dismiss the action under Federal Rule of Civil Procedure 12(b)(6), arguing that this action is barred by the applicable statute of limitations. To survive a motion to dismiss, a complaint must present factual allegations, assumed to be true, to “raise a right to relief above the speculative level” and must contain “enough facts to state a claim to relief that is plausible on its face.”[4] The statute of limitations is generally considered an affirmative defense, but there are times it may be appropriate to resolve a statute of limitations issue at the motion to dismiss stage, especially “when the dates given in the complaint make clear that the right sued upon has been extinguished” and there is no basis for tolling the statute.[5] If the statute of limitations has indeed expired, then Hadley has no claim upon which relief can be granted.[6]

         III. Analysis

         The Court begins by considering the provision of the Kansas saving statute, K.S.A. § 60-518, which is critical to the viability of Hadley's case. The statute provides that,

[i]f any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.

         As explained by the Kansas Supreme Court,

[t]he general periods of limitation are not changed by [the saving] provision, but it is intended to give a party who brought an action in time, which was disposed of otherwise than upon the merits after the statute of limitations had run, a [period] of grace in which to reinstate his [or her] case and obtain a determination upon the merits.[7]

         In order for the saving statute to apply: (1) the first action must have been filed before the limitations period expired; (2) the plaintiff's first action failed for reasons other than the merits of the claim; (3) the second action must have been filed within six months of “such failure”; and (4) but for the saving statute, the limitations period must have expired before the second action was filed.[8]

         Koerner does not dispute that three of the elements are satisfied. However, the parties dispute whether this action was filed within six months of the first action's “failure.” Koerner argues that failure of the original action occurred upon dismissal of the case for lack of subject matter jurisdiction on November 21, 2016. But Hadley asserts that it did not fail, and remained pending, until her motion to reconsider was denied on February 27, 2017. Thus, the Court must determine which event triggered the Kansas saving statute's six-month grace period.

         A. Failure Does Not Occur Until a Judgment Becomes Final

         As the outcome of this motion ultimately hinges on the Court's interpretation of the Kansas saving statute, it is appropriate to turn to the interpretation given by Kansas courts.[9] The saving statute “is remedial, and should be liberally construed, with a view of carrying into effect the purpose of the legislature.”[10]

         In Seaboard, the Kansas Supreme Court analyzed the issue of when a prior class action had “failed, ” thus triggering the saving statute's six-month grace period. Specifically, the issue was whether the action “failed” when the federal district court entered the order of dismissal, or when the plaintiffs' timely appeal had concluded.[11] The Court began its analysis by recognizing “that it is the pendency of the first action that preserves a plaintiff's claim.”[12] The Court then noted that the saving statute “does not use ‘dismissal' as the triggering point, ” but rather “the grace period of [the saving statute] is triggered when a plaintiff ‘fails' in the first action otherwise than on the merits.”[13] Additionally, “having options”-such as the option to appeal an order that would otherwise be binding-“does not mean a plaintiff's action has failed as [the saving statute] requires.”[14] Thus, the trial court's ruling is not determinative of “when an action ‘fails.' ”[15]Rather, “there can be events other than a trial court's dismissal that trigger the beginning of the grace period of [the saving statute] . . . .”[16]

         Applying these principles, the Court held that “a plaintiff cannot ‘fail' while an appeal is pending because the trial court's ruling is subject to review and could be reversed.”[17] The Court added that “it does not matter whether a plaintiff's reliance on an appeal is reasonable” or whether plaintiff was likely to file an appeal.[18] Thus, the Seaboard Court concluded that the plaintiffs' first action had not failed at the point of dismissal because that judgment was not final, and there was not a “completed failure of the action until the appeal ended.”[19]

         In a recent case, Lozano v. Alvarez, [20] the Kansas Supreme Court held that the saving statute applies “only to an action that was commenced during the statute of limitations period and that was dismissed for a reason other than on the merits after the expiration of the statute of limitations period.”[21] Similarly, in Neighbor v. Westar Energy, Inc., [22] the Court held that the plaintiff was “entitled to file his eminent domain appeal under this saving statute within 6 months of the initial dismissal without prejudice.”[23] At first blush, these more-recent cases appear to hold that an action “fails” when it is ...


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