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Bishop v. Goodyear Tire and Rubber Co.

United States District Court, D. South Dakota, Western Division

April 6, 2016



DANETA WOLLMANN United States Magistrate Judge.


Otto Bishop and his wife were driving on their motorcycle from their home in Wisconsin through South Dakota. On their way through South Dakota, the tire became disabled and Mr. and Mrs. Bishop were injured. State Farm Mutual Automobile Insurance Company (hereinafter “State Farm”) paid the property damage on the motorcycle and seeks repayment from Goodyear Tire and Rubber Company and Goodyear Dunlop Tires North America, LTD (hereinafter “Defendants”). Plaintiffs filed suit alleging product liability, failure to warn, and negligence.[1] The Defendants allege, amongst other things, that Mr. Bishop failed to properly maintain the tire and misused and abused the tire by failing to maintain proper air pressure and repeatedly operating the motorcycle in excess of the maximum load for the motorcycle and the tire. (Doc. 74 at p. 3).

The defendants filed this motion to determine the applicable substantive law. Defendants believe that Wisconsin law should apply to substantive questions in this case. The plaintiffs disagree. For the following reasons, the court finds the applicable substantive law is South Dakota law.


I. Whether the Motion is Untimely

First, plaintiffs assert that the motion to determine substantive law should be denied as untimely because it should have been filed and served on or before January 12, 2015. (Doc. 75 at p. 1). In support of this argument, plaintiffs cite to the District Court’s scheduling order that states “[a]ll motions, other than motions in limine, together with supporting briefs, shall be filed and served on or before January 12, 2015.” (Doc. 38) (order extending previously set deadlines). Defendants respond that their motion is timely because it was filed more than three months before trial and choice of law had not been presented by either party. (Doc. 80 at p. 1). Defendants argue that it is beneficial for all parties to know which substantive law governs in order to prepare jury instructions. Moreover, Defendants argue motions to determine applicable substantive law of the case may be brought at any time before or during trial as long as the opposing party does not suffer prejudice. In support of this, Defendants cite to a case from the Court of Appeals for the First Circuit, Levin v. Dalva Brothers, Inc, 459 F.3d 68 (1st Cir. 2006).

The court will not dismiss the motion on this ground. The plaintiff submitted no evidence to show that it was somehow prejudiced by this motion. Defendants filed this motion before trial and, while it could have been filed earlier, Plaintiff did not contend that Defendants intentionally waited to raise this issue to gain some sort of unfair advantage. The Plaintiff has not suffered any prejudice. Furthermore, such a motion would eventually arise during the course of trial and the court believes it an efficient use of time to resolve the issue at this juncture.

II. Whether the Defendants Waived Statutory Defenses

Plaintiffs argue the Defendants waived the ability to raise statutory defenses because Federal Rule of Civil Procedure 8(c) required Defendants to raise such defenses in their answers. (Doc. 75 at p. 7). Defendants argue they did not waive the right to a choice of law determination because their answers sufficiently identified all affirmative defenses they now seek to assert. (Doc. 80 at p. 3-4).

Federal Rule of Civil Procedure 8(b)(1)(A) requires a “short and plain” statement of the party’s “defenses to each claim asserted against it.” Federal Rule of Civil Procedure 8(c) requires that a party affirmatively state any affirmative defense. Both Defendants stated in their respective answers that they were asserting all available defenses pursuant to any statute governing plaintiff’s claims. (Doc. 33 at p. 6; Doc. 34 at p. 6). Thus, Defendants have not waived statutory defenses.

III. The Defendants Have Shown a Meaningful Conflict of Law Exists

Plaintiffs argue the defendants failed to show a conflict in the laws that is meaningful and would change the outcome of the case. (Doc. 75 at p. 2). Defendant argues that it has shown a conflict of law exists, but it does not argue such a difference in the law would change the outcome of the case at bar. (Doc. 80 at p. 2-3).

“A district court sitting in diversity applies the law including the choice-of-law rules, of the state in which it sits.” Prudential Ins. Co. of America v. Kamrath, 475 F.3d 920, 924 (8th Cir. 2007) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). “Before applying the forum state’s choice-of-law rules, however, a trial court must first determine whether a conflict exists. Kamrath, 475 F.3d at 924 (other citations omitted).

“In determining whether a conflict exists, the court must ascertain which state’s law may apply.” General Cas. Co. of Wisconsin v. Nelson Engineering Consulting, LLC, 91 F.Supp.3d 1168 (D.S.D. 2015) (determined the states in which the parties were located in and acts took place). If the outcome would be the same regardless of the law applied, then the court should use the law of the state in which it sits. See Id. at 1172-73 (none of the potential state laws would change the outcome of the case, thus the court applied South Dakota ...

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