                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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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