# Bush v. O'Reilly Automotive Stores, Inc.

> District Court, S.D. Ohio · December 9, 2022

URL: https://www.frixlaw.com/law-library/cases/10381399

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** December 9, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

RICKY A. BUSH, SR., :
:
Plaintiff, : Case No. 3:21-cv-189
:
v. : Judge Thomas M. Rose
:
O’REILLY AUTO ENTERPRISES, LLC, et : Magistrate Judge Peter B. Silvain, Jr.
al., :
:
Defendants. :
______________________________________________________________________________

ENTRY AND ORDER DENYING MOTION OF DEFENDANT O’REILLY
AUTO ENTERPRISES, LLC FOR SUMMARY JUDGMENT (DOC. NO. 25)
______________________________________________________________________________

This case involves a personal injury claim brought by Plaintiff, Ricky A. Bush, Sr.
(“Bush”). Pending before the Court is a motion for summary judgment (Doc. No. 25) (the
“Motion”), which was filed by Defendant O’Reilly Auto Enterprises, LLC (“O’Reilly
Enterprises”). In the Motion, O’Reilly Enterprises asks the Court “to enter summary judgment in
its favor based on the failure of [Bush] to file the Ohio tort claim he has asserted in this court
within Ohio’s two-year statute of limitations for bodily injury.” (Doc. No. 25 at PageID 83.) The
Court DENIES the Motion.
I. BACKGROUND 1
On or about April 3, 2019, Bush slipped and fell at a store located at 121 South Heincke
Road in Miamisburg, Ohio. (Doc. No. 1 at PageID 2; see also Doc. No. 15 and Doc. No. 16.) He
alleges that the cause of the slip-and-fall was a slippery substance that he believes to be motor oil.

1 For purposes of resolving the Motion, the recitation in the “Background” section includes undisputed facts and
otherwise assumes the evidence of the non-moving party as true and draws all reasonable inferences in the nonmoving
party’s favor, as is appropriate at this stage. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Tolan v.
Cotton, 572 U.S. 650, 660 (2014).
(Doc. No. 1.) Bush brings a state-law claim for negligence based on his allegations. (Id.)
On January 26, 2021, Bush originally filed his claim in the Montgomery County Court of
Common Pleas (the “Original Lawsuit”). (S.D. Ohio Case No. 3:21-cv-65 at Doc. No. 1-1.) In
the Original Lawsuit, Bush named O’Reilly Automotive Stores, Inc. (“O’Reilly Stores”) as a
defendant, not O’Reilly Enterprises. (Id.) On February 25, 2021, that case was removed from

state court to this Court. (S.D. Ohio Case No. 3:21-cv-65 at Doc. No. 1.) The Notice of Removal
in the Original Lawsuit stated that O’Reilly Stores was “not the proper entity” and explained that
the proper defendant was O’Reilly Enterprises. (Id.) Later that same day, Bush filed a voluntary
dismissal without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (S.D.
Ohio Case No. 3:21-cv-65 at Doc. No. 2.)
Approximately four-and-a-half-months later (and, therefore, more than two years after
Bush’s alleged slip-and-fall), Bush filed this lawsuit on July 15, 2021 (the “Current Lawsuit”).
(Doc. No. 1.) The attorney who filed the Current Lawsuit was not the attorney who filed the
Original Lawsuit. (Compare id. to S.D. Ohio Case No. 3:21-cv-65 at Doc. No. 1-1.) As with the

Original Lawsuit, the Current Lawsuit named O’Reilly Stores, not O’Reilly Enterprises, as a
defendant. (Doc. No. 1.) The allegations and substance of the negligence claim in both the Current
Lawsuit and the Original Lawsuit are very similar. (Compare Doc. No. 1 at PageID 2-3 to S.D.
Ohio Case No. 3:21-cv-65 at Doc. No. 1-1.)
On September 3, 2021, O’Reilly Enterprises filed an answer to Bush’s complaint in the
Current Lawsuit. (Doc. No. 10.) In its answer, O’Reilly Enterprises stated that it had been
“misidentified in the plaintiff’s complaint as O’Reilly Automotive Stores, Inc.” (Id. at PageID
32.) That same day, O’Reilly Enterprises served discovery requests on Bush. (Doc. No. 11.) On
October 7, 2021, O’Reilly Enterprises filed a Corporate Disclosure Statement that indicated it had
been misidentified as O’Reilly Stores and that it is a parent, subsidiary, or other affiliate
corporation of O’Reilly Stores. (Doc. No. 13.)
On December 9, 2021, the parties filed a Joint Motion to Amend Named Defendants in
Plaintiff’s Complaint. (Doc. No. 15.) In that filing, the parties “stipulate[d] to the amendment of
the improperly named defendants” in the Complaint. (Id. at PageID 50.) Additionally, the parties

“stipulate[d] that Southern Graphic Systems, LLC and O’Reilly Auto Enterprises, LLC are the true
and accurate parties in this case and there is no need for further pleadings in order to amend the
parties of the case.” (Id. at PageID 52.) Attached to the filing was a proposed entry. (Doc. No.
15-1.) The next day, Magistrate Judge Peter B. Silvain, Jr. filed an entry granting that joint motion.
(Doc. No. 16.) The entry matched the language in the body of the proposed entry, and it states:
By agreement of the parties, by and through Counsel, Defendant O’Reilly
Automotive Stores, Inc. and Southern Graphics System, LLC, who were
improperly named in Plaintiff’s Complaint, are hereafter stipulated to their proper
names, O’Reilly Auto Enterprises, LLC and Southern Graphic Systems, LLC,
respectively. There is no need for further pleadings to amend the parties identified
in the Plaintiff’s Complaint.2
(Id.)
On June 28, 2022, O’Reilly Enterprises filed the Motion. (Doc. No. 25.) Bush responded
to the Motion (Doc. No. 29), and O’Reilly Enterprises filed a reply to Bush’s response (Doc. No.
33). The Motion is fully briefed and ripe for review and decision.
II. LEGAL STANDARDS FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides that “[a] party may move for
summary judgment, identifying each claim or defense--or the part of each claim or defense--on
which summary judgment is sought” and that “[t]he court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

2 The case caption has been amended to reflect the effect of this entry.
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Alternatively, summary judgment is denied
“[i]f there are ‘any genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.’” Hancock v. Dodson, 958 F.2d
1367, 1374 (6th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
The party seeking summary judgment has the initial burden of informing the court of the

basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, that it believes demonstrate
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
see also Fed. R. Civ. P. 56(a), (c). In opposing summary judgment, the nonmoving party cannot
rest on its pleadings or merely reassert its previous allegations. Anderson, 477 U.S. at 248-49. It
also is not sufficient to “simply show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
nonmoving party must “go beyond the [unverified] pleadings” and present some type of
evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324.

A party’s failure “to properly address another party’s assertion of fact as required by Rule
56(c)” can result in the court “consider[ing] the fact undisputed for purposes of the motion.” Fed.
R. Civ. P. 56(e). Additionally, “[a] district court is not ... obligated to wade through and search
the entire record for some specific facts that might support the nonmoving party’s claim.”
InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). “The court need consider only
the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
In ruling on a motion for summary judgment, it is not the judge’s function to make
credibility determinations, “weigh the evidence[,] and determine the truth of the matter, but to
determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 255. In
determining whether a genuine issue of material fact exists, the court must assume as true the
evidence of the nonmoving party and draw all reasonable inferences in that party’s favor. Id. at
255; Matsushita, 475 U.S. at 587; Tolan v. Cotton, 572 U.S. 650, 660 (2014). However, the “mere
existence of a scintilla of evidence in support of the” nonmoving party is not sufficient to avoid
summary judgment. Anderson, 477 U.S. at 252. “There must be evidence on which the jury could

reasonably find for the plaintiff.” Id. The inquiry, then, is “whether reasonable jurors could find
by a preponderance of the evidence that the” nonmoving party is entitled to a verdict. Id.
III. ANALYSIS
In the Motion, O’Reilly Enterprises argues that it is entitled to summary judgment based
on the applicable statute of limitations. (Doc. No. 25.) O’Reilly Enterprises seeks “summary
judgment on this state law tort claim based on Ohio’s two-year statute of limitations for bodily
injury” because Bush “alleges he suffered bodily injury on April 3, 2019 as a result of the
negligence of this defendant,” but Bush “filed this lawsuit on July 15, 2021.” (Id. at PageID 75.)
O’Reilly Enterprises also argues that “Ohio’s savings statute does not apply because O’Reilly
[Enterprises] was not a party to the original lawsuit.” (Id.) Bush responds that “Ohio’s savings

statute applies and the statute of limitations does not bar the action.” (Doc. No. 29 at PageID 102.)
Bush does not dispute that the applicable law provides a two-year statute of limitations for
his negligence action (see generally Doc. No. 29).3 See also Ohio Rev. Code § 2305.10(A) (“[a]n
action for bodily injury … shall be brought within two years after the cause of action accrues”);

3 In their briefing, the parties assume that Ohio law applies to the statute of limitations issue in the Motion. So will
the Court. See Kovats v. Hi-Lex Corp., No. 1:00-cv-433, 2001 U.S. Dist. LEXIS 23068, at *19 (W.D. Mich. Oct. 9,
2001), report and recommendation approved by 2002 U.S. Dist. LEXIS 2432 (W.D. Mich. Feb. 7, 2002) (“[w]hen
exercising jurisdiction over state-law claims, the federal court must apply the state statute of limitations, including the
state rules for accrual and tolling, in deciding a limitations defense”) (citing Garden City Osteopathic Hosp. v. HBE
Corp., 55 F.3d 1126, 1130 (6th Cir. 1995)); cf. Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th
Cir. 2012) (“[w]hen reviewing a Rule 12(b)(6) dismissal of state law claims based on a statute of limitations, we apply
state law regarding the statute of limitations and any rules that are an integral part of the statute of limitations, such as
tolling and equitable estoppel”) (internal quotation marks omitted).
Schmitz v. NCAA, 2018-Ohio-4391, 122 N.E.3d 80, 90 (Ohio 2018) (negligence claim subject to
two-year statute of limitations). The Court agrees with O’Reilly Enterprises that, on its face, the
complaint would be barred by applying that statute of limitations because Bush’s alleged injury
occurred on April 3, 2019 and Bush filed his claims in the Current Lawsuit on July 15, 2021. (Doc.
No. 1.)

However, Ohio has what is sometimes referred to as a “savings statute,” Ohio Rev. Code
§ 2305.19. See Wasyk v. Trent, 174 Ohio St. 525, 191 N.E.2d 58, 61 (Ohio 1963); Kinney v. Ohio
Dep’t of Adm’r Servs., 30 Ohio App. 3d 123, 507 N.E.2d 402, 404 (Ohio Ct. App. 1986). That
statute states, in part: “In any action that is commenced or attempted to be commenced, … if the
plaintiff fails otherwise than upon the merits, the plaintiff … may commence a new action within
one year after the date of … the plaintiff’s failure otherwise than upon the merits or within the
period of the original applicable statute of limitations, whichever occurs later.” Ohio Rev. Code
§ 2305.19(A). “The laudable purpose of the statute of limitations is to promote justice by
preventing surprise through the revival of claims that have been allowed to slumber until evidence

has been lost, memories have faded and witnesses have disappeared.” Kinney, 507 N.E.2d at 405.
“Since the savings statute is available only to plaintiffs whose actions were timely commenced,
such statutes are perfectly consistent with the goals statutes of limitations are designed to serve.”
Id.
“The savings statute applies when the original suit and the new action are substantially the
same.” Children’s Hosp. v. Ohio Dept. of Public Welfare, 69 Ohio St. 2d 523, 433 N.E.2d 187,
189 (Ohio 1982). “[T]he ultimate legal consideration is whether a party to a re-filed action was
put on notice of the claims against them in the original action.” Rutherland Enter., Inc. v. Zettler
Hardward, 700 F. App’x 398, 402 (6th Cir. 2017).
O’Reilly Enterprises acknowledges that the refiled complaint in the Current Lawsuit
“appears to fall within the scope of [the savings statute],” but relies on the following language
from the Ohio Supreme Court to argue that the savings statute does not apply to the circumstances
presented here:
[Ohio Rev. Code §] 2305.19, the one-year saving statute, does not apply when the
parties and relief sought in the new action are different from those in the original
action.
Children’s Hosp., 433 N.E.2d 187 at syllabus ¶ 1. O’Reilly Enterprises argues: “O’Reilly Auto
Enterprises, LLC [i.e., O’Reilly Enterprises], the defendant in this case, was never a party to the
original lawsuit” and that “prevents the use of Ohio’s savings statute.” (Doc. No. 25 at PageID 82
(citing Rutherland Enter., 700 F. App’x at 402 and Eaves v. Strayhorn, No. 1:09-cv-394, 2010
U.S. Dist. LEXIS 59125 (S.D. Ohio June 15, 2010)).) The Court disagrees that use of Ohio’s
savings statute is prohibited here.
There is no argument that the relief sought in the new action is different from that in the
original action. Additionally, the named defendant in the new action and the named defendant in
the original action were not different. (Compare S.D. Ohio Case No. 3:21-cv-65 at Doc. No. 1-1

to Doc. No. 1 (both naming “O’Reilly Automotive Stores, Inc.” as the defendant); see also Doc.
No. 25 at PageID 79 (O’Reilly Enterprises stating in its Motion that Bush “filed the instant case in
this court against the same defendants who had been parties to the original action”).) This case
involves an apparent mistake in the naming of a defendant, where the proper defendant was put on
notice of the claims against it in both the Original Lawsuit and the Current Lawsuit. Both the
complaint in the Original Action and the complaint in the Current Action indicate that the incident
at issue took place at 121 South Heincke Road in Miamisburg. (Doc. No. 1 at PageID 2; S.D. Ohio
Case No. 3:21-cv-65 at Doc. No. 1-1.) O’Reilly Enterprises acknowledged that it operated that
store at the time of the incident at issue and that O’Reilly Stores “has not operated the Miamisburg
store since at least 2011.” (Doc. No. 25-1.) O’Reilly Enterprises indicated that it is a parent,
subsidiary, or other affiliate corporation of O’Reilly Stores. (Doc. No. 13.) And, the Notice of
Removal—filed by O’Reilly Enterprises’s attorney, who is also the attorney for O’Reilly Stores—
stated that O’Reilly Stores was not the proper entity to be the defendant and O’Reilly Enterprises
was the proper entity. (S.D. Ohio Case No. 3:21-cv-65 at Doc. No. 1; Doc. No. 10.) Furthermore,

O’Reilly Enterprises has neither argued nor shown that it has been prejudiced in defending the
case on its merits.
In the circumstance presented here, use of Ohio’s savings statute is appropriate. See Milos
v. Doe, 2011-Ohio-849, 950 N.E.2d 592, 593-94 (Ohio Ct. App. 2011) (reversing judgment for
party on statute of limitations grounds; the case had been refiled within the one-year time frame
set forth in the savings statute, it was apparent from the complaint who the intended defendant
was, and the intended defendant “was on notice of the claim and was not prejudiced in defending
the case on the merits”); McGraw v. Jarvis, 2021-Ohio-522, 168 N.E.3d 163, 174 (Ohio Ct. App.
2021) (finding that “the error in appellants name as originally styled in the dismissed case and as

originally styled in the current case was akin to a clerical error,” “[t]here was never any genuine
confusion among the parties,” “the correction of the clerical error does not render the savings
statute inapplicable, and the trial court did not err in denying appellees motion to dismiss”);
Kinney, 507 N.E.2d at 405-06 (allowing application of the savings statute where “[e]very party
named in plaintiffs’ new action had been put on notice in the initial action” and the party seeking
judgment “was not prejudiced in any manner by having to defend against a ‘new theory’ or ‘cause
of action’ that had not been presented in the initial case”).
Furthermore, the Ohio Supreme Court has explained that the savings statute “is, of course,
a remedial statute designed to provide a litigant a hearing on his case on its merits” and “is to be
given a liberal construction to permit the decision of cases upon their merits rather than upon mere
technicalities of procedure.” Wasyk, 191 N.E.2d at 61 (internal quotation marks omitted). The
Ohio Supreme Court has also instructed that, given its “remedial purpose,” operation of the savings
statute should not be “unduly restrict[ed]” unless the restriction is clear, and “[i]ts broad and liberal
purpose is not to be frittered away by any narrow construction.” Id. (internal quotation marks

omitted); see also Kinney, 507 N.E.2d at 405-06 (agreeing that the savings “statute is broad and
unambiguous and should be liberally construed in order that controversies be decided upon
important and substantive questions rather than upon technicalities of procedure”) (internal
quotation marks omitted and alterations adopted).
Finally, the cases relied on by O’Reilly Enterprises are distinguishable and do not convince
the Court to grant the Motion. In Children’s Hospital, both the relief sought and the parties in the
new action were different from the original action. Children’s Hosp., 433 N.E.2d at 189. The
original action did not seek money damages and named the following parties as defendants: the
Governor of Ohio, the Director of the Ohio Department of Public Welfare, and the Secretary of

the United States Department of Health, Education and Welfare. Id. However, the new action
sought money damages and named one defendant: the Ohio Department of Public Welfare. Id. In
Rutherland, the original lawsuit had named a single corporate defendant, but the refiled complaint
added several individuals as defendants; the Sixth Circuit explained that the individual defendants
“had no notice that there were any claims against them until [plaintiff’s] refiled action” that was
initiated the year after voluntary dismissal of the original action. Rutherland, 700 F. App’x at 400,
402. Similarly, in Eaves, Ohio’s savings statute did not apply where “Plaintiff’s state complaint
named the ‘Brown County Commissioners;’ ‘Brown County Clerk of Courts;’ and ‘Brown County
Sheriff’s Office,’” but did “not name Hamilton County Sheriff Simon L. Leis, Jr. or Hamilton
County Deputy Mitchell Bruser” or “any office or officeholder in Hamilton County.” Eaves, 2010
U.S. Dist. LEXIS 59125, at *17 (emphasis in original) (granting judgment on the pleadings to Leis
and Bruser in subsequently-filed federal action).
IV. CONCLUSION
For the reasons stated above, the Court DENIES the Motion of Defendant O’Reilly Auto

Enterprises, LLC for Summary Judgment (Doc. No. 25). This case shall proceed in accordance
with the Court’s scheduling order.
DONE and ORDERED in Dayton, Ohio, this Friday, December 9, 2022.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10381399. Public record. Not legal advice.