Elizabeth Powell v. Wal-Mart Stores, Inc. , 303 F. App'x 284 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0756n.06
Filed: December 12, 2008
Nos. 07-3847/07-4097
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ELIZABETH POWELL, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) NORTHERN DISTRICT OF
) OHIO
WAL-MART STORES, INC., LEROY SCHUETZ, )
STEVEN BERTSCHY, CHRISTOPHER WALTERS, ) MEMORANDUM
JONATHAN FORTMAN, CURTIS FOWLER, ) OPINION
DANIEL McLAUGHLIN, WALTER )
TRUSZKOWSKI, STANISLAW KOSTEK, )
PINNACLE MANAGEMENT, INC., BARRY )
CLIFTON, PAUL MUDD, JOHN KENDALL, MIKE )
RANDAZZO, SCOTT BAILEY, and VINCENT )
ROMANO, )
)
Defendants-Appellees. )
BEFORE: MARTIN and McKEAGUE, Circuit Judges; and COLLIER, Chief District
Judge.*
PER CURIAM. Elizabeth Powell sued Wal-Mart Stores, Inc., Pinnacle Management, Inc.,
and a number of individuals over an injury she suffered while working at Wal-Mart Stores. She
alleged violations of the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), the
Ohio Pattern of Corrupt Activity Act (“Ohio PCA”), and negligence and reckless disregard for the
safety of others under Ohio common law. The district court dismissed Powell’s RICO and Ohio
*
The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
Nos. 07-3847/07-4097
Powell v. Wal-Mart Stores, Inc.
PCA claims for failing to allege a viable claim for relief. The district court dismissed her common-
law claim as time-barred. The district court subsequently denied Powell’s motion under Federal
Rule of Civil Procedure 60 for relief from judgment. Powell appealed both the district court’s
original judgment dismissing her claims and the court’s denial of her Rule 60 motion.
Having carefully considered the parties’ briefs on appeal and the record of the proceedings
below, we are not persuaded that a lengthy opinion is necessary. As to Powell’s RICO and Ohio
PCA claims, we AFFIRM for the reasons set forth by the district court. Powell v. Wal-Mart Stores,
Inc., No. 1:06-CV-603, slip op. at 2-4 (N.D. Ohio Aug. 14, 2007) (“Powell II”) (on Powell’s Rule
60 motion); Powell v. Wal-Mart Stores, Inc., No. 1:06-CV-603, 2007 WL 987321, at *2 (N.D. Ohio
Mar. 30, 2007) (“Powell I”) (on defendants’ motions to dismiss).
As to Powell’s state common-law claim, a fair reading of the complaint confirms that Powell
asserted this claim against Pinnacle Management under a theory of respondeat superior and not
against Wal-Mart Stores or any of the individual defendants. See Complaint ¶¶ 85-86. Pinnacle
Management argued in its motion to dismiss that the claim was time-barred. Powell failed to
respond to the argument, and the district court dismissed the claim. Powell I, 2007 WL 987321, at
*2. In a subsequent motion to alter or amend, she argued for the first time that her state common-law
claim was not time-barred under Ohio’s savings statute, O.R.C. § 2305.19; she reiterated the
argument in her Rule 60 motion. We agree with the district court that Powell failed to address the
defense in a timely manner, and, therefore, we likewise AFFIRM for the reasons stated by the
district court. Powell II, slip op. at 4-6.
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