The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER
Pending before the Court is the MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) (Document No. 7) filed by Defendant Mon River Towing, Inc. ("Mon River"). Mon River filed a brief in support of the motion. Plaintiff, Brendan D. Reichert ("Reichert") has filed a response, a brief in opposition, and a declaration from counsel (Document Nos. 10-12). Mon River filed a reply brief. The motion is ripe for disposition.
Reichert asserts a claim for negligence under the Jones Act, 46 U.S.C. § 30104 et seq. Reichert served as a crew member aboard a Mon River vessel. He alleges that on July 16, 2006 he suffered injuries during the course of his employment due to a faulty locking mechanism on a winch.
The Motion to Dismiss is premised upon a statute of limitations defense. In summary, Defendant argues that the three-year limitations period expired several months prior to the filing of this case, and that the limitations period should not be equitably tolled due to the prior filing of a case in an Ohio state court. Accordingly, the procedural history will be reviewed in some detail.
The initial Complaint, 2009 CV 743, was filed in the Court of Common Pleas of Columbiana County, Ohio on July 9, 2009 (the "Ohio Action").*fn1 The complaint alleged that jurisdiction and venue were proper because Mon River conducted business "within this forum's boundaries." The first attempt at service by certified mail apparently failed because it was not "deliverable as addressed." A First Amended Complaint was prepared and was served by certified mail on August 27, 2009. A certified return receipt was signed by Dena Trilli on behalf of Mon River on August 31, 2009. On September 24, 2009, counsel entered an appearance on behalf of Mon River and filed a motion to dismiss for lack of personal jurisdiction and, alternatively, due to forum non conveniens. In its brief, Mon River acknowledged that it occasionally dropped off barges for repair at a landing on the Ohio River in East Liverpool, Ohio. Mon River contended, however, that Reichert's accident had occurred in West Elizabeth, Pennsylvania, over fifty miles away from Columbiana, Ohio, and that the vessel and crew were maintained and primarily located in Pennsylvania. In sum, this case involves a Pennsylvania resident who is suing a Pennsylvania corporation for an incident that occurred in Pennsylvania.
After briefing by both parties, the Court of Common Pleas of Columbiana County, Ohio granted Mon River's motion to dismiss for lack of personal jurisdiction on October 26, 2009 and dismissed the suit without prejudice. Reichert filed a notice of appeal on November 17, 2009. The initial Complaint in this case (the "Federal Action") was filed on November 9, 2009. A First Amended Complaint was filed in the Federal Action on December 8, 2009, to correct a typographical error regarding the date of Reichert's injury.
State and federal courts have concurrent jurisdiction to enforce seamen's rights under the Jones Act. Engel v. Davenport, 271 U.S. 33 (1926). The parties agree that the statute of limitations for filing a personal injury claim under the Jones Act is three years, as provided in 46 U.S.C. § 30106, which states: "Except as otherwise provided by law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose." The parties further agree that the limitations period expired on July 16, 2009, approximately four months prior to the filing of the Federal Action. However, the parties disagree as to whether the limitations period should be tolled due to the filing of the Ohio Action.
The leading authority is Burnett v. New York Cent. R. Co., 380 U.S. 424 (1965) (FELA case involving an injury suffered by a railway employee).*fn2 The Jones Act explicitly provides that laws regulating recovery for personal injuries to railway employees shall apply to actions under the Jones Act. 46 U.S.C. § 30104. Thus, the discussion in Burnett is directly applicable to this case. The Supreme Court outlined the general principles that govern this analysis in Burnett:
[T]he basic inquiry is whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances. In order to determine congressional intent, we must examine the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the enforcement of the rights given by the Act. 380 U.S. at 427. The Supreme Court explained that "it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." Id. at 428. Moreover, courts have an interest in being "relieved of the burden of trying stale claims when a plaintiff has slept on his rights."
Id. The Court noted, however, that these considerations may be frequently overcome "where the interests of justice require vindication of the plaintiff's rights." Id. For example, the limitations period would be tolled if the defendant misled the plaintiff as to the filing deadline or if war prevented the plaintiff from timely filing the action. The Supreme Court noted the "humanitarian purposes" of FELA, and observed that "Congress would not wish a plaintiff [to be] deprived of his rights when no policy underlying a statute of limitations is served in doing so." Id. at 434. Thus, the Court concluded that the FELA limitations period may be extended beyond three years under appropriate circumstances. Id. at 427. Specifically, the Supreme Court held:
[W]hen a plaintiff begins a timely FELA action in a state court having jurisdiction, and serves the defendant with process and plaintiff's case is dismissed for improper venue, the FELA limitation is tolled during the pendency of the state suit. 380 U.S. at 434-435.
The parties disagree as to the application of Burnett to the undisputed facts of this case. Mon River argues that the plain language of Burnett stands for the proposition that the limitations period is tolled only when a plaintiff's case is dismissed for improper venue. Mon River reasons that because the Ohio Court determined that it did not have personal jurisdiction, the limitations period is not tolled. Reichert argues that Burnett merely requires the state court to have subject-matter jurisdiction, such that his timely ...