     Case: 16-60291      Document: 00513793092         Page: 1    Date Filed: 12/12/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                    No. 16-60291                                    FILED
                                  Summary Calendar                          December 12, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
JONATHAN DAVIS TURNAGE, and wife; ANGELA TURNAGE,

              Plaintiffs - Appellants

v.

MCCONNELL TECHNOLOGIES, INCORPORATED, AN ALABAMA
CORPORATION,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:14-CV-124


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       The district court held that the statute of limitations barred the
Turnages’ products liability case. McConnell Technologies raised the statute
of limitations challenge through a motion to dismiss for failure to state a claim.
FED R. CIV. P. 12(b)(6). In this appeal, the Turnages argue that the district
court took an improper look outside the pleadings in order to rule against them.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 16-60291
Because the district court did no more than consider the parties’ arguments
filed in briefs accompanying the pleadings, we affirm.
                                              I.
      On March 23, 2011, Jonathan Turnage was working at a lumber
company when an augur he was maintaining cut off several of his fingers. On
March 24, 2014, the Turnages filed a lawsuit in Mississippi court against the
manufacturer of the augur.            They alleged that the augur was defectively
designed or manufactured. The suit was timely filed but with no time to
spare—their products liability claim was subject to a three-year statute of
limitations. MISS. CODE § 15-1-49(1). In their original pleading, the Turnages
did not identify the manufacturer of the augur but instead named fictitious
John Does as placeholders. Mississippi allows plaintiffs to do this when they
are ignorant of an opposing party’s name. MISS. R. CIV. P. 9(h).
      Another defendant in the case, MesserSmith Manufacturing, removed
the suit to federal district court. 1 At the end of January 2015, the Turnages
amended their complaint to add “McConnell Sales and Engineering
Corporation, Inc.” as a defendant. After this, months passed as the case sat on
the district court’s docket. This prompted the court to enter two orders to show
cause why the case should not be dismissed for failure to prosecute it. In
response, the Turnages amended their complaint again on August 27, 2015 to
add the present appellee, McConnell Technologies, Inc., as a defendant.
      McConnell Technologies then filed a motion to dismiss under Rule
12(b)(6). It asserted that the Turnages’ claims against it in their amended
complaint were barred by the statute of limitations and did not relate back to
their timely complaint of March 24, 2014. After receiving briefing from both
sides, the district court granted the motion to dismiss.                       The Turnages


      1   MesserSmith was later dismissed for lack of personal jurisdiction.
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                                  No. 16-60291
responded by filing a motion for reconsideration or new trial arguing that the
court had improperly considered matters outside of the pleadings to decide the
motion to dismiss. See FED R. CIV. P. 12(d). The district court denied this
motion as well, and the Turnages timely appealed.
                                        II.
      The Turnages raised only one issue in their opening brief to this court.
They argue that the district court improperly considered matters outside of the
pleadings when deciding McConnell Technologies’ motion to dismiss and
otherwise improperly weighed the evidence rather than accepting the
allegations in their pleadings as true. Specifically, the Turnages find fault
with the court’s admitted reliance on representations contained in their own
briefing in response to the motion to dismiss. According to the Turnages, the
court had to rely on these materials in order to find that they had not exercised
reasonable diligence in ascertaining the identity of McConnell Technologies, a
key issue in whether their amended complaint related back to their initial,
timely filing.
      In order to qualify as timely under Mississippi’s three-year statute of
limitations for products liability claims, the Turnages’ amended complaint
naming McConnell Technologies had to be treated as relating back to the date
of their original complaint in Mississippi state court. See MISS. CODE § 15-1-
49(1). Federal Rule of Civil Procedure 15(c)(1)(A) allows an amended pleading
to relate back to the date of the original pleading when “the law that provides
the applicable statute of limitations allows relation back.” In this case, the
applicable statute of limitations comes from the law of Mississippi. Mississippi
law allows relation back when a named defendant is substituted for a John
Doe defendant but only if the plaintiff conducted a “reasonably diligent inquiry
into the identity of the fictitious party.” Doe v. Miss. Blood Servs., Inc., 704 So.
2d 1016, 1019 (Miss. 1997). The Mississippi Supreme Court also made a
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                                   No. 16-60291
distinction in Doe between parties who could only be identified with the help
of judicial discovery and those whom a plaintiff could identify through his or
her own investigation. Id.
      In its order denying the Turnages’ motion for reconsideration or new
trial, the district court explained the basis for its decision:
            According to Plaintiffs’ response to Defendant’s motion to
      dismiss, they discovered the identity of the proper Defendant after
      simply asking Plaintiff Jonathan Turnage’s employer who serviced
      the equipment after the accident. This route of investigation
      could—and should—have been pursued before filing suit, and
      Plaintiffs have offered no explanation for why they waited until
      over a year later to do so.
There is nothing improper about the district court considering the content of
briefing that supports or opposes a motion under Rule 12(b)(6) when deciding
such a motion. When matters outside the pleadings are presented to the court
in connection with a motion under Rule 12(b)(6), the motion must be treated
as a Rule 56 motion for summary judgment and appropriate notice given to the
parties. FED R. CIV. P. 12(d). We have held though that “briefs and oral
arguments in connection with the motion . . . are not considered matters
outside the pleadings for purposes of conversion.” Gen. Retail Servs, Inc. v.
Wireless Toyz Franchise, LLC, 255 F. App’x 775, 785 (5th Cir. 2007) (quoting
5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1366 (3d ed. 2004)). The district court thus did not violate the
Rules of Civil Procedure when it relied on the Turnages’ representations in
their briefing in order to decide the motion briefed. Likewise, the court did not
improperly weigh the evidence against the Turnages when it accepted as true
their own statements to the court.
                                       ***
      The judgment is AFFIRMED.


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