*1 510 WILLIAMS,
GERRY
Appellant,
Plaintiff
MINING, INC.,
ZORTMAN
Respondent.
Defendant
No. 95-442.
February
Briefs
1996.
Submitted on
April 15,
Decided
St.Rep. 289.
53
For John F. Appellant: Lynch; Lynch Chisholm, & Great Falls. Respondent: Hattersley, For Thomas E. III, C. David Shanahan, Dalthorp; Gough, Waterman, Johnson & Helena. LEAPHART Opinion JUSTICE delivered the of the Court. Gerry appeals Williams from the order ofthe Seventeenth Judicial Court, County, District Phillips granting Mining, Zortman Inc.’s motion to dismiss for failure to state a upon which relief can granted, upon based running the statute of limitations. We affirm.
We consider the following dispositive issue on appeal: statute,” 27-2-407, MCA, Does the apply to save Wil- liams’ claim from being barred the statute of limitations? (Williams)
Gerry Williams employed by Mining, Inс. (Zortman), wholly-owned subsidiary Corporation, Gold 1991, from 1978 until 1991. In resigned Williams position his rather agree than to a transfer to a position which amounted a demotion. Thereafter, 8, January 1992, on charge Williams filed a of discrimi- (HRC) nation with the Rights Montana Human Commission alleging he unlawfully had been discriminated because of his Native origin American and in retaliation his over the lack of Native hiring by American participation and his brought by sexual discrimination suit a female co-worker. At the Zortman, request right the HRC issued a sue letter on March 23, right 1993. An amended sue letter was issued March 18,1993, complaint
On June filed his the United States Montana, Billings Division, against District Court for District “Pegasus Corporation, a Nevada 3,1993. Inc.” The court dismissed Williams’ complaint on November attempting The court noted that Williams was to manipulate diversity jurisdiction naming foreign parent federal court in
corporation, Pegasus, subsidiary, and not the Montana Zortman. Montana, incorporated naming in the State of Zortman was diversity jurisdiction would have defeated under Zortman as a respect party, Pegasus, 28 U.S.C. 1332. With had not his federal court determined that Williams exhausted admin- entity. Accordingly, granted remedies court istrative failure to his Pegasus’ motion to dismiss because ofWilliams’ exhaust remedies. administrative 90-day to file in pеriod
On November letter, sue Williams filed following the issuance naming district court Zortman as the state January 10, 1994 Zortman MCA. On defendant. See upon for failure state a claim to dismiss Williams’ moved or, alternatively, judgment granted can be which relief 1,1995, On September of limitations. based on pleadings, motion to dismiss. Williams granted Zortman’s this dеtermination. appeals from properly applied the district court
The issue of whether
12(b)(6),
of limitations
a Rule
M.R.Civ.P.motion
granted
Forsythe (1995), 271
question
law. Hollister v.
presents a
to dismiss
issues
law
91, 93, 889 P.2d
1206. This Court reviews
Mont.
*3
interpretation
or
application
whether the district court’s
to determine
(citing
v.
Hollister,
McGregor
The District Co.,’ Mining parent corporation, ‘d/b/a Pegasus, named a as distinct Defendant, did not name Zortman but as file did not Further, that Williams the District Court stated entity.” to sue days receiving within 90 cоmplaint his state court rather, complaint filed his HRC, from the letter 49-2- § this satisfied filing contends that court. Williams MCA, statute,” 27-2-407, gives “savings 509(2), MCA, and that the
513 year following one to refile his complaint him dismissal in federal statute,” MCA, “savings provides: The court.
If an is commenced within the action time limited therefor a judgment therein is reversed apрeal awarding without a new trial or action in any is terminated other manner than aby discontinuance, voluntary a dismissal of the complaint neglect or a prosecute judgment upon final or, survives, if he dies the cause of action his repre- sentative commence a new for the same cause аfter the expiration of the time so 1 year limited and within a such reversal or termination.
The District Court aptly noted “Plaintiff’s argument missed point is, one critical the action filed Plaintiff in federal —that district court is a party. different The sole defendant in the Pegasus, federal action was which is not a party to this action.” In a interpreting “savings Montana’s, statute” similar to the Tennessee Appeals Court of determined that: savings
The applies only when the new original substantially “are for the same cause of identity action.” ... There must be an in order for the original complaints new and substantially to be the same. ... [The court determined plaintiff’s] second complaint in state substantially court is original not similar to his state complaint because it involved different parties. savings The statute is not applicable to the claims a renewed complaint against party a named as a in the original complaint. [Citations omitted.] (Tenn. Nashville, Turner v. Aldor Co. Inc. 1991), Ct. App. added) S.W.2d 321 (emphasis (interpreting Tenn. Code Ann. 28-l-105(a)). We find the reasoning of the Tennessee Court of Appeals persuasive and agree statute” does apply or complaint against to save “renew” a in the original complaint. (Ga.
Similarly, McCoyEnterprises v. Vaughn Georgia S.E.2d Appeals discussed situation where, here, knowingly the plaintiff as named the wrong McCoy complaint. though court stated even *4 likely suit, had notice actual because of the first second suit should have been dismissed because the had not been named as a in the first suit. The court concluded appellant corporation that “since never a the original suit, cannot maintain ‘renewal’action [respondent] McCoy, 765. intervening limitation.” 268 S.E.2d. at of the case, the District Court noted that Zortman and In the instant separate legal entities and stated that: Pegasus were way in his is to prevail argument for Plaintiff show is, ego Pegasus; is the alter that shоw as the same. Plaintiff does make two entities should treated any other allegations has made such otherwise, evidence, by affidavit or to this Court. showing of such “Pegasus Gold a Nevada Williams named Although suit, Inc.” the federal does Corporation, “savings for statute.” Zortman purposes not suffice Rather, merely separate legal entity. for Zortman a Pegasus. a d/b/a worlds; ignoring cannot have the best of both Zortman as diversity then, entity jurisdiction separate legal purposes court, the Montana state courts expecting in federal after dismissal designation proper as sufficient ofthe acknowledge the “d/b/a”lаbel entity “savings statute.” purposes applied statute” is to be This held that the Court has and, has commenced without cases where an action been the merits fault, has a failure to reach a determination of there during pendency of such of limitations has run 486, 488, 171 P.928, Tietjen v.Heberlein action. every oppоrtu noted that “Plaintiff had Here, the District Court proper Zortman in the nity a discrimination claim bring statutory filing within to Williams’ period.” respect With forum attempted court, “it that Plaintiff appears the court stated by only suing jurisdiction of the federal manipulate fault in now be said to be without and Plaintiff cannot Pegasus ... with agree federal claim.”We a defendant Zortman as omitting 49-2-509(5),1MCA, that: conclusion, citing Court’s entity] separate legal [a not to include Zortman As chose Plaintiff trigger the that action does not federal statute, “savings” the Montana statute. Without “savings” 49-[2]-509(5), clearly M.C.A. under Section statute of limitations applies. mistakenly 49-2-509(5), MCA, as order cites District Court’s 1. We note appears by the District Court 49-5-509(5), relied on statute of limitations MCA. The Chapter 5. 49-2-509(5), not include MCA Title 49 does
§in *5 49-2-509(5), concluded that Accordingly, MCA, Court § to Williams’ state court operated bar because had not 90-day period. filed within the We determine the District correctly by concluded that Williams’ was not savеd MCA, 27-2-407, because Zortman was anot to the first suit. 49-2-509(5), the statute oflimitations set forth in Accordingly, MCA, to bar Williams’ claim. operated
Affirmed. TURNAGE, GRAY,
CHIEF JUSTICE JUSTICES NELSON and ERDMANN concur. dissenting.
JUSTICE TRIEWEILER opinion.
I the majority dissent from majority’s accomplished result can judi- grafting cially-created saving elements onto Montana’s statute which are not process, itself. present stаtute result is accomplished in total disregard purpose of the plaintiff’s and the merits claim. saving statute,
Montana’s found at MCA, provides part relevant that:
If an action commenced within is the time limited therefor and ... any the action is terminated other manner than a voluntary discontinuance, a dismissal neglect prose- cute the or a judgment upon final ... commence new action for the same cause after the expiration year time so limited and within 1 after such a ... termination. added.)
(Emphasis Contrary to the discussion the ancient case of Tietjen Heber- lein 171 P. there provision is no in the “saving statute” which renders the statute inapplicable if the original fedеral action is dismissed based some subjective notion any “fault.” language Neither there in the saving inapplicable statute which make it are would where subsequent identical. The will save a state court action (1) three, only three, voluntary where circumstances exist: dis- (2) plaintiff, prosecute by missal dismissal for failurе to (3) final plaintiff, judgment the merits. None of those circum- stances exists in this case.
Furthermore, it is incorrect that in sense the substantive that Williams sued in federal court was different than the subsequently suing sued in state court. The difference between Corp., Mining, Inc., Pegasus suing Gold d/b/a subsidiary of Mining, Inc., wholly-owned Pegasus Corpora- Gold only. a difference that exists on The nature tion, paper corporations correctly relationship alleged between two effectively substance, to one notice notice other, subsequent the effect of state action to allowing the defendant was named amending form which allowing different than amendments state court to have been no 15(c), to the date of the action under relate back M.R.Civ.P. had sued
If Williams *6 ninety days after the Montana Human Inc., in state within right notice of and had amended Rights Commission issued its sue correctly identify as simply the defendant Zortman ninety days sue, the notice of Inc., more than Mining, the оriginal would have related back to the date of his amendment subject to not have been dismissal based cause of action would 15(c) part in relevant that: provides on the statute oflimitations. pleading asserted in the amended the claim or defense Whenever conduct, transaction, the or oсcurrence set forth or out of arose pleading, the the amendment attempted original to be set forth in An original pleading. date of the amendment relates back the a claim is asserted relates back changing party against the whom and, period pro- the provision if is satisfied within foregoing the party the by commencing against law for action vided (1) such notice by amendment, has received brought in prejudiced that the will not be ofthe institution of (2) knew or should maintaining a defense that, identity mistake concerning known but have party. brought the action would have been proper party, 887 P.2d we v. Boedecker In Bеrlin defendant, corporate even against a proceed an action to allowed name the defen- corporate not amended to was though complained of. years after the actions and one-half dant until seven in the had been principal We held that because prior еxpiration filed had been suit which had notice of the limitations, by timely prejudiced fashion and was allegations in a by amendment. later being named 15(c) case, In this all the requirements of Rule were satisfied. Inc., had notice of the action Pegasus court; it knew the proper party; and no can prejudice hаving be shown Zortman now to defend the case on its merits. an changing identity
Because amendment have been allowed in state court had originally the action been filed against Pegasus court, Gold in state no different result should occur in this situation in The purpose statute. of the saving statute is to allow actions whiсh are filed on time in federal court to court, court after dismissal in federal except for limited are present circumstances which in this case. The fact that the form which the defendant was identified in federal court was not identical to the form which the defendant is identified in the state court action is one of those circumstances precludes application Any reading statute. of the two requires they conclusion that are the same cause of action. I
Furthermore, conclude reliance decisions from intermediate courts of appeal in Tennessee and Georgia is (Tenn. misplaced. In Turner v.Aldor Co. Nashville injured by 827 S.W.2d an garage overhead door and originally sued the distributor door. That action was voluntarily later, dismissed and after the statute of had limitations run, a brought against second action was the manufacturer door. There is indication no in that decision that the distributor and any way manufacturer were in related, or that the manufacturer had *7 plaintiff’s been mentioned as a in in Furthermore, although form. the exact text saving of Tennessee’s not set forth in the opinion, is we can conclude that it is Montana’s, identical to or the that plaintiff’s original mere fact voluntarily complaint had been dismissed prеcluded have its case, application. In this caption Zortman was identified in the of complaint. subsequent Williams’ federal court The claim in the state identical, court action was and Williams’ federal court claim was not voluntarily dismissed. (Ga.
In McCoy Enterprises Vaughn 268 S.E.2d plaintiff’s original voluntarily cause of was dismissed after years more than two after had been filed and the trial of nearly claim had commenced. A second cause of action was filed four years the negligent complained and one-half act ofhad occurred The of limita- applicable a new defendant was named. and were filed in state years. Significantly, tions two both actions of that could Georgia Appeals court and the held opportunity of rename the defen- himself have availed of do so. pleading, his but had chosen dant amendment voluntarily dismissed his first cause of action. Most Instead, he statute, saving interpreted which is Georgia’s significantly, suit, saved, be “against second order decision, requires prayed McCoy, in the first suit.” from whom relief was person saving is requirement similar found Montana’s S.E.2d at No inapplicable Therefore, Georgia completely decision statute. interpret in this case. rule we have been asked to the facts аnd the unjustified application being an incorrect addition to statute, reasoning saving found Montana’s plain language this Court, adopted has been affirmed Court, approach trial court completely inappropriate. attorney tried majority plaintiff’s to be that since the and the seems the mаnner for federal satisfy jurisdictional requirements did complaint, federal he identified the defendants in which he therefore, plain cannot avail himself something wrong saving statute. Montana’s provisions us, impossible it is conclude the record before First, based on have wrong. did There attorney anything plaintiff’s simply alter-еgo to believe good reason assuming one set offacts can Lawyers often file Zortman. Second, appli- otherwise. subsequently learn be established and nothing to do with “fault” and statute has Montana’s cation of has no propriety place its interjection of notions of that statute. application its reasons, I of the District Court would reverse order
For these its to a resolution based on allow merits. opinion. joins foregoing dissenting ih the HUNT
JUSTICE