                                      NOT RECOMMENDED FOR PUBLICATION

                                                   File Name: 15a0272n.06

                                                           No. 14-1957

                                        UNITED STATES COURT OF APPEALS
                                             FOR THE SIXTH CIRCUIT

                                                                                                         FILED
SCOTT CZEWSKI,                                              )                                    Apr 14, 2015
                                                            )                               DEBORAH S. HUNT, Clerk
                     Plaintiff-Appellant,                   )
                                                            )
v.                                                          )                  ON APPEAL FROM THE UNITED
                                                            )                  STATES DISTRICT COURT FOR
KVH INDUSTRIES, INC.,                                       )                  THE WESTERN DISTRICT OF
                                                            )                  MICHIGAN
                     Defendant-Appellee.                    )
                                                                )              OPINION
___________________________________

BEFORE: BATCHELDER and WHITE, Circuit Judges; and COX, District Judge.*
              SEAN F. COX, District Judge. Plaintiff-Appellant Scott Czewski filed this breach of contract

     action against Defendant-Appellee KVH Industries, Inc. in state court, and KVH Industries removed

     the action to federal court based upon diversity jurisdiction. The district court granted a Motion to

     Dismiss filed by KVH Industries, ruling that Michigan's six-year statute of limitations applied and that

     Czewski's complaint was untimely. Czewski now appeals that ruling, arguing that Rhode Island's

     ten-year statute of limitations applies to this action. Czewski also argues, in the alternative, that if we

     agree with the district court's statute-of-limitations ruling, we should nevertheless vacate the district

     court's order and either directly transfer this action to the United States District Court for Rhode Island

     or remand the action to the district court so that Czewski can file a motion asking the district court to

     transfer the case. For the reasons below, we AFFIRM the district court's statute-of-limitations ruling



               *
               The Honorable Sean F. Cox, United States District Judge for the Eastern District of Michigan, sitting by
     designation.
No. 14-1957, Czewski v. KVH Indus., Inc.



 and, although we have the authority to grant the alternative relief Czewski requests, we conclude that

 there are no unusual circumstances here that warrant such relief.

                                                 I.

        Czewski filed this breach of contract action against KVH Industries in state court on March 14,

2014. Czewski's complaint asserted a single count, "Breach of Contract." The contract at issue, a

manufacturer representative agreement, was attached to Czewski's Complaint as Exhibit 1. The contract

provides, in pertinent part, that the "validity, interpretation, and performance of this Agreement shall be

controlled by and construed under the laws of the State of Rhode Island." (R. 2 at PID 23) (holding and

underlining in original). Czewski alleges that he began working as a commissioned representative in 2002

and that he worked in that capacity until March 15, 2004, at which time he took a position with KVH

Industries as an account manager. Czewski alleges that in August of 2004 he realized that KVH

Industries had not paid him all the commissions that should have been paid to him. (R. 2 at PID 14).

        After removing the case to federal court, KVH Industries filed a Motion to Dismiss, pursuant to

Fed. R. Civ. P. 12(b)(6), asserting that Michigan's six-year statute of limitations applies and that

Czewski's complaint was filed outside of that limitations period.

        In response to that motion, Czewski took the position that statutes of limitation are substantive

in nature, that Rhode Island's ten-year statute of limitations applies, and that his Complaint was

therefore timely filed.

        Czewski did not file a motion asking the district court to transfer the action to Rhode

Island. Czewski's response brief did not argue, in the alternative, that the district court should transfer

the action to Rhode Island if the court were to agree with KVH Industries that Michigan's statute of

limitations applies.




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No. 14-1957, Czewski v. KVH Indus., Inc.



        On June 26, 2014, the district court issued an Opinion granting KVH Industries' Motion to

Dismiss. In its Opinion, the district court explained that "Michigan's six-year statute of limitations,

rather than Rhode Island's longer statute of limitations, is applicable to Plaintiffs claim. Because

Plaintiff did not file his complaint within six years of the time his claim accrued, it is time-barred in

Michigan." (R. 10 at PID 128). In a footnote to the Opinion, the district court stated "[although

Plaintiff has not indicated an intention to file an action in Rhode Island, the Court will dismiss the action

without prejudice to allow Plaintiff to re-file in Rhode Island if he chooses to do so." (R. 10 at PID 128

n.l). The district court then issued an order dismissing Czewski's complaint without prejudice.

Czewski now appeals.

                                                    II.

        As both parties recognize, the Panel reviews de novo the district court's dismissal of a case

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Bright v. Gallia Cnty., Ohio, 753

F.3d 639, 648 (6th Cir. 2014). A district court's choice-of-law determination is also reviewed de

novo. Performance Contracting, Inc. v. DynaSteel Corp., 750 F.3d 608, 611 (6th Cir. 2014).

                                                  III.

        It is undisputed that Michigan has a six-year statute of limitations for breach of contract actions

(see Mich. Comp. Laws § 600.5807(8)) and Rhode Island has a ten-year statute of limitations that

applies to breach of contract actions (see R.I. Gen. Laws § 9-1-13(a)). Czewski does not dispute that

his action was untimely filed if Michigan's statute of limitations applies. Rather, Czewski contends

that the district court erred in applying Michigan's statute of limitations, rather than Rhode Island's

longer statute of limitations.

        Czewski filed this breach of contract action in the forum state of Michigan. The contract at issue

in this case, however, has a choice-of-law provision that provides that the "validity, interpretation, and


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No. 14-1957, Czewski v. KVH Indus., Inc.



performance of the contract "shall be controlled by and construed under" Rhode Island law. (R. 2 at

PID 23).

        The district court exercised jurisdiction over this case based upon diversity jurisdiction under

28 U.S.C. § 1332. "A federal court sitting in diversity must apply the substantive law, including choice

of law rules, of the state in which it sits." Phelps v. McClellan, 30 F.3d 658, 661 (6th Cir. 1994).

        "Under Michigan's common law choice of law rule, statutes of limitation are considered

procedural and are governed by the law of the forum." Johnson v. Ventra Group, Inc., 191 F.3d 732,

746 (6th Cir. 1999) (citing Isley v. Capuchin Province, 878 F.Supp. 1021, 1025 (E.D. Mich. 1995)).

Moreover, as Czewski acknowledges, the Sixth Circuit has held that "contractual choice-of-law

clauses incorporate only substantive law, not procedural provisions such as statutes of limitations."

Cole v. MiletU 133 F.3d 433, 437 (6th Cir. 1998).1 "Absent an express

statement that the parties intended another state's limitations statute to apply, the procedural law of the

forum governs time restrictions on an action for breach, while the law chosen by the parties governs

the terms of their contract." Id.

        In the case at bar, the parties agreed that the "validity, interpretation, and performance of the

contract "shall be controlled by and construed under" Rhode Island law. (R. 2 at PID 23). The contract

did not, however, expressly provide that Rhode Island's statute of limitations would apply to an action to

        1
         Although Czewski is correct to note that this case was applying Ohio, and not Michigan, law,
we have cited favorably to Cole in cases applying Michigan law. See Oswald v. BAE Indus., Inc., 483
F. App'x 30, 35 (6th Cir. 2012); Imaging Fin. Servs., Inc. v. Lettergraphics/Detroit, Inc., No.
97-1930,1999 WL 115473, at *4 (6th Cir. Feb. 9, 1999) (table decision) (citing to Cole for the
proposition that "statutes of limitations are generally procedural for choice of law purposes and thus, the
forum state's statute of limitations applies even if the parties have chosen the substantive law of another
state"). We have cited to Cole in a case applying Kentucky law as well. See Wallace Hardware Co.,
Inc. v. Abrams, 223 F.3d 382, 396 (6th Cir. 2000) (citing to Cole for the proposition that "[Contractual
choice-of-law clauses incorporate only substantive law, not procedural provisions such as statutes of
limitations"). Nothing about this principle limits itself to Ohio law.


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No. 14-1957, Czewski v. KVH Indus., Inc.



enforce the contract. Given the absence of such an express provision, the parties' choice-of-law

provision incorporated only the substantive law of Rhode Island - not that state's procedural law,

including its statute of limitations. Phelps, supra; Frisch, supra.

        Although Michigan courts have long held that statutes of limitation are procedural in nature,

Czewski asserts that the Michigan Supreme Court dramatically changed the landscape in Gladych v. New

Family Homes, Inc., 468 Mich. 594, 664 N.W.2d 705 (2003). Czewski contends that, in Gladych, the

Michigan Supreme Court ruled that statutes of limitations are substantive for all purposes, including

choice-of-law determinations.

        We conclude that the district court properly rejected Czewski's position. The district court

properly found that ''''Gladych's holding was limited to conflict between court rules and statutes, and

does not extend to choice-of-law determinations," followed "Michigan's traditional rule that statutes of

limitations are procedural in nature,"2 and applied Michigan's statute of limitations where "Rhode

Island's statute of limitations was not incorporated into the choice-of-law clause at issue in this case."

(R. 10 at PID 126-128).

                                                       IV.

        Although it is not included in his "Statement Of The Issue" presented for review (see

Appellant's Br. at 1),3 the body of Czewski's brief seeks to raise a second issue. If the Panel agrees

with the district court's statute-of-limitations ruling, then Czewski asks the Panel to nevertheless "vacate


        2
        Notably, although Gladych was issued more than a decade ago, Czewski has not directed us to a
single decision wherein a court has interpreted the case as ruling that statutes of limitations are
substantive for all purposes under Michigan law. To the contrary, following Gladych, Michigan courts
continue to follow the general rule that limitations periods are procedural in nature. See, e.g. Hatcher v.
State Farm Mut. Auto. Ins. Co., 269 Mich. App. 596, 605-606, 712 N.W.2d 744, 750 (2005);
Waisanen v. Superior Twp., 305 Mich. App. 719, 730, 854 N.W.2d 213, 219 (2014).
        3
            This issue is therefore arguably waived.


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No. 14-1957, Czewski v. KVH Indus., Inc.



the district court's Order and either transfer the case to the District of Rhode Island or remand to the district

court to allow [him] to move to transfer to the District of Rhode Island." (Appellant's Br. at 16).

        In support of this request, Czewski asserts that the Panel "has the authority pursuant to 28 U.S.C.

§ 1404(a) and the All Writs Act to transfer this matter to the District of Rhode Island." (Appellant's Br.

at 14). Czewski relies on Koehring Co. v. Hyde Const. Co., 382 U.S. 362 (1966) and Hunt v.

Bankers Trust Co., 799 F.2d 1060, 1070 (5th Cir. 1986). He also asserts that the Panel has the authority

to remand with instructions for the district court to consider a motion to transfer, relying on Ross v.

Mebane, 536 F.2d 1199 (7th Cir. 1976).

        The change-of-venue statute provides, in pertinent part, that "a district court" may transfer a

civil action to another district "where it might have been brought." 28 U.S.C. § 1404(a) (emphasis

added). Thus, as the Supreme Court observed in Koehring, "a federal appellate panel does not

ordinarily itself transfer a case to another district." Koehring, 382 U.S. at 364. Nevertheless, the Court

concluded that the statute does not preclude "an appellate court, where unusual circumstances indicate

the necessity thereof, from effecting a transfer by direct order." Id at 365 (emphasis added). The Court

concluded that the "extraordinary circumstances" presented there warranted such action. Those

extraordinary circumstances "included the fact that the Federal District Court in Mississippi had granted

a motion to dismiss despite instructions from the Fifth Circuit to transfer the cause to Oklahoma, and the

further fact that trial of a duplicative action in the Mississippi state courts brought by respondent Hyde

Construction Company was to commence, and did in fact commence, on March 11 - one day after the

Fifth Circuit's instanter transfer and the very day on which the Federal District Court in Oklahoma entered

its order." Id. at 364.




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No. 14-1957, Czewski v. KVH Indus., Inc.



         Extraordinary circumstances were also found to exist in Hunt, such that a federal appellate

court directed a United States bankruptcy court to transfer two related actions to another bankruptcy

court. Hunt, 799 F.2d at 1070-71.

         Unusual circumstances also existed in Ross, such that the Seventh Circuit remanded a habeas

corpus / prisoner civil rights case to the district court so that the district court could determine whether

it should transfer the case to another federal district court - where the petitioner and his immediate

custodian were located. Ross, 536 F.2d at 1202.

         As KVH Industries notes, "[i]t is a well-established rule" that a federal appellate panel will not

consider "arguments that are not properly raised below." Zhao v. Holder, 569 F.3d 238, 247 (6th Cir.

2009).

         Moreover, unlike any of the cases Czewski relies on, this case does not involve any

extraordinary circumstances that would warrant the unusual relief that Czewski seeks. This is a simple

breach of contract action with two parties and no related actions.      Czewski could have initially filed

suit in Rhode Island, but chose not to do so. In addition, after KVH Industries filed its motion to dismiss,

Czewski could have either filed a motion to transfer or asked the district court to transfer the case rather

than dismiss it. Czewski chose not to do either of those things. Finally, the district court dismissed the

action without prejudice, so that Czewski could file suit in Rhode Island if he chose to do so.

                                                    V.

         For these reasons, we AFFIRM.




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No. 14-1957, Czewski v. KVH Indus., Inc.


        HELENE N. WHITE, Circuit Judge, concurring in result. The question as framed by

the parties is whether “Michigan law considers statutes of limitations to be procedural or

substantive.” From the outset, the parties have assumed that Michigan courts would adjudicate a

contractual choice-of-law dispute by distinguishing between procedural laws and substantive laws,

with only the latter being governed by the choice-of-law provision.            Czewski’s argument

acknowledges Michigan’s long-standing practice of considering statutes of limitations to be

procedural, see, e.g., Stephens v. Dixon, 449 Mich. 531, 534, 536 N.W.2d 755, 756 (Mich. 1995)

(“Statutes of limitation are procedural devices intended to promote judicial economy and the rights

of defendants.”); People v. Russo, 439 Mich. 584, 595, 487 N.W.2d 698, 702 (Mich. 1992) (“In

Michigan, statutes of limitations are generally regarded as procedural and not substantive in

nature.”), and asserts that the Michigan Supreme Court’s decision in Gladych v. New Family

Homes, Inc., 468 Mich. 594, 664 N.W.2d 705 (2003), altered that long-standing approach and

“clearly provides that statutes of limitations are substantive rather than procedural.”

        In Gladych, the Michigan Supreme Court considered whether the mere filing of the

complaint in an action tolls the statute of limitations under the applicable Michigan statutes,

notwithstanding language in MCLA 600.5856 that indicates more is required. In doing so, the

Court overruled Buscaino v. Rhodes, 385 Mich. 474, 189 N.W.2d 202 (1971), overruled in part on

other grounds by McDougall v. Schanz, 461 Mich. 15, 597 N.W.2d 148 (1999), which had held that

tolling begins with the mere filing of the complaint, by limiting § 5856’s applicability, in part to

avoid a conflict between § 5856 and GCR 101, a court rule enacted pursuant to the Michigan

Supreme Court’s constitutional authority to enact rules regarding practice and procedure in the

courts. Gladych, 468 Mich. at 605. The Gladych court rejected the Buscaino court’s reasoning,

citing its earlier decision in McDougall:



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No. 14-1957, Czewski v. KVH Indus., Inc.


                 If the statute concerns a matter that is purely procedural and pertains
                 only to the administration of the courts, the court rule would control.
                 [McDougall, 461 Mich.] at 26–27, 597 N.W.2d 148. If, however,
                 the statute concerns a “‘principle of public policy, having as its basis
                 something other than court administration . . . the [court] rule should
                 yield.’” Id. at 31, 597 N.W.2d 148 (quoting Joiner & Miller, Rules
                 of practice and procedure: A study of judicial rule making, 55 Mich.
                 L. R. 623, 635 (1957). Statutes regarding periods of limitations are
                 substantive in nature.

Gladych, 468 Mich. at 600.

        The Gladych Court made this statement in the context of comparing “statutes regarding

matters of ‘practice and procedure’ and those regarding substantive law,” and found that statutes of

limitations fall in the latter category. Id. Specifically, the Court determined that court rules

trump statutes in regard to “purely procedural” matters, but when the statute concerns “a principle

of public policy, having as its basis something other than court administration,” the statute governs.

Id. Thus, Gladych’s statement that statutes of limitations are “substantive in nature” merely

distinguishes statutes of limitation from statutes “regarding matters of ‘practice and procedure.’”

See id. This statement does not evince a wholesale change of Michigan law; rather, it “addressed

. . . the requirement that tolling of the relevant statute of limitations can only be accomplished by

complying with [Michigan statutory law].” Collins v. Comerica Bank, 688 N.W.2d 357 (Mich.

2003) (expressly limiting the holding of Gladych to the narrow question stated above).1 Thus, I

reject Czewski’s argument based on Gladych.

        1
        Indeed, Czewski’s argument is expressly contemplated and disavowed by the
Restatement:

        The courts have traditionally [analyzed statute of limitations issues] by determining
        whether the particular issue was “procedural” and therefore to be decided in
        accordance with the forum’s local law rule, or “substantive” and therefore to be
        decided by reference to the otherwise applicable law. These characterizations,
        while harmless in themselves, have led some courts into unthinking adherence to
        precedents that have classified a given issue as “procedural” or “substantive,”
        regardless of what purposes were involved in the earlier classifications. Thus, for
        example, a decision classifying burden of proof as “procedural” for local law
                                                    9
No. 14-1957, Czewski v. KVH Indus., Inc.


        I also note that this case has progressed entirely on the premise that Michigan

conflict-of-laws rules in contractual disputes are materially identical to those discussed in Cole v.

Mileti, 133 F.3d 433 (6th Cir. 1997) (interpreting Ohio law), Phelps v. McClellan, 30 F.3d 658 (6th

Cir. 1994) (same), and Frisch v. Nationwide Mutual Ins. Co., 553 F. App’x 477 (6th Cir. 2014)

(same). I am not convinced that this is the case, and believe that Michigan courts would follow

the Restatement (Second) of Conflicts of Laws when deciding this issue. See Chrysler Corp. v.

Skyline Indus. Servs., Inc., 448 Mich. 113, 126–27 (Mich. 1995) (adopting the approach set forth in

Restatement (Second) of Conflict of Laws §§ 187, 188). Under this approach, it is possible that a

Michigan court honoring a general, all-encompassing choice-of-law provision would also apply

the chosen state’s statute of limitations.   See Restatement (Second) of Choice of Laws § 187

(“The law of the state chosen by the parties to govern their contractual rights and duties will be

applied if the particular issue is one which the parties could have resolved by an explicit provision

in their agreement directed to that issue.”). Still, given the limited scope of the choice-of-law

provision at-issue here—Rhode Island law governs the contract’s “validity, interpretation, and

performance”—it is not clear to me that a Michigan court would apply Rhode Island’s statute of

limitations when adjudicating Czewski’s claim. I thus concur in the affirmance of the district

court’s application of the Michigan statute of limitation.




        purposes, such as in determining the constitutionality of a statute that retroactively
        shifted the burden, might mistakenly be held controlling on the question whether
        burden of proof is “procedural” for choice-of-law purposes.

Restatement (Second) of Conflict of Laws, § 122, cmt. b. Gladych is such a case; it pertained to
purely local matters, but now Czewski is citing it for contractual choice-of-law purposes. To be
sure, Michigan courts have indicated that this section of the Restatement applies to Michigan
contractual choice-of-law disputes. See GM Sign, Inc. v. Auto-Owners Ins. Co., 2012 WL
4840592, at *22 (Gleicher, J. concurring) (unpublished).


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No. 14-1957, Czewski v. KVH Indus., Inc.


        Finally, because Czewski did not seek the alternative remedy of transfer below, he forfeited

any claim to that relief. Thus, I concur in the affirmance district court.




                                                 11
