Monday, July 30, 2007

Eighth Circuit Court of Appeals finds Plaintiff's railroad ballast machine product liability lawsuit was out of time after Virginia court transferred case to Nebraska. 062641P.pdf 07/25/2007 David Eggleton v. Plasser & Theurer U.S. Court of Appeals Case No: 06-2641 District of Nebraska - Omaha Track maintenance worker from Virginia was working the Defendants' Plasser RM-802 ballast cleaning machine . on Burlington Northern railroad tracks in Nebraska and suffered severe injuries while using the machine here in 1998. Within two years he sued Plasser, a German manufacturer in Virginia state court but did not pursue the case. He dismissed the state court action but refiled it within six months in Virginia federal court, taking advantage of the Virginia savings statute, § 8.01-229(E)(3). The district court ruled Virginia did not have personal jurisdiction over the defendants but transferred the case to Nebraska federal court, per 28 USC 1406. The Nebraska federal judge allowed the case to proceed and the defendants appealed. Nebraska law does not extend a plaintiff's limitations period after a voluntary dismissal. If the Nebraska limitations period applies, the Plaintiff's complaint is too late. Eighth Circuit reverses, Nebraska limitation period applies. "After filing his claims against Plasser in a timely fashion, Eggleton neglected the case for more than three years. He took a voluntary nonsuit and then re-filed the case six months later. He waited more than one year after re-filing the case to serve Plasser, thus finally giving the defendant formal notice of the pending lawsuit. While all of these actions were apparently permissible under Virginia law, Eggleton’s inertia in pursuing his case against Plasser militates against his claim of injustice in the application of Nebraska law."

No comments: