[B]Case Name:* [/B]Brendan Reichert v. Mon River Towing, Inc.
[B]Date Decided: [/B]January 29, 2010
[B]Court: [/B]U.S.D.C. Western District of Pennsylvania
[B]Judge:* [/B]Judge McVerry
[B]Citation: [/B]2010 WL 419435 [B]Background:
[/B]Plaintiff, Brendan Reichert, brought this claim for negligence under the Jones Act against vessel owner, Mon River Towing Inc.
Reichart alleged he suffered injuries during the course of his employment due to a faulty locking mechanism on a winch.
Reichart initially filed his complaint alleging jurisdiction and venue were proper, in Ohio because Mon River conducted business within the forum’s boundaries.
The first attempt at service by certified mail failed because it was not “deliverable as addressed”.* Reichart then sent a first amended complaint and sent by certified mail. A certified return receipt was signed by Dena Trilli on behalf of Mon River.
Mon River then filed a motion to dismiss for lack of personal jurisdiction and forum non conveniens. While it acknowledge it dropped off barges for repair at a landing on the Ohio River, Reichart’s accident occurred in Pennsylvania, over 50 miles away from the Ohio drop point.
Ohio granted Mon River’s motion to dismiss for lack of personal jurisdiction and dismissed the suit without prejudice. Reichart filed a notice of appeal.
The first complaint was filed on November 9, 2009, the first amended complaint was filed in the federal action on December 8, 2009, to correct a typographical error regarding the date of Reichart’s injury.
Mon River filed a motion for dismiss claiming that the time period should not have been polled due to the prior filing of a case in an Ohio state court.
[/B]Did this Court grant Mon River’s motion to dismiss?
[/B]This Court examined whether the tolling principles would be controlled by a federal statute of limitations or Ohio State principles.
Mon River argued that the plain language of [I]Burnett, [/I]stands for the proposition that the limitation period is tolled only when a plaintiff’s case is dismissed for improper venue.* Therefore,* because the Ohio Court determined it did not have personal jurisdiction, the limitations period was not tolled.
Reichart countered, arguing that [I]Burnett [/I]merely requires the state court to have subject-matter jurisdiction, and such that his timely commencement of the Ohio Action was sufficient to toll the limitations period.
This Court found that tolling the statute of limitations, under these facts, was not warranted. The general federal rule concerning the issue of tolling is that the commencement of one action did not toll the statute of limitations applicable to another.
It was [I]not [/I]reasonable, according to this Court for Reichart to initate this lawsuit in an Ohio state court.
Accordingly, this Court granted Mon River’s motion to dismiss.
In [I]Burnett v. New York Central Railroad (380 U.S. 424) [/I]the Court held that laws regulating recovery for personal injuries to railway employees shall apply to actions under the Jones Act.[/B]
[B]Therefore, [I]Burnett [/I]is applicable to this action. The Court in [I]Burnett [/I]examined whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances. [/B]
[B]Steve Gordon [/B]