                      NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 File Name: 18a0622n.06

                                                  Case No. 17-6437

                                  UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT

                                                                                                  FILED
                                                                                          Dec 17, 2018
DEANA BURKEEN, et al.,                                           )
                                                                                      DEBORAH S. HUNT, Clerk
                                                                 )
            Plaintiffs-Appellants,                               )
                                                                 )        ON APPEAL FROM THE UNITED
v.                                                               )        STATES DISTRICT COURT FOR
                                                                 )        THE WESTERN DISTRICT OF
A.R.E. ACCESSORIES, LLC, et al.,                                 )        KENTUCKY
                                                                 )
            Defendants-Appellees.                                )




            BEFORE: CLAY and GRIFFIN, Circuit Judges; ZOUHARY, District Judge.*

            CLAY, Circuit Judge. Plaintiffs Deana and Timothy Burkeen (separately, “Ms. Burkeen”

and “Mr. Burkeen;” together, “Plaintiffs”) appeal from two decisions entered by the district court,

granting Defendant General Motors LLC’s (“GM”) motion to dismiss on July 26, 2017, and

denying Plaintiffs’ motion to alter judgment and motion for leave to file a second amended

complaint on November 3, 2017. For the reasons set forth below, we VACATE the judgment

dismissing the complaint with prejudice and REMAND for the district court to reconsider whether

the dismissal should have been without prejudice and whether Plaintiffs should be permitted to

amend the complaint.




*
    The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation.
Case No. 17-6437, Deana Burkeen, et al. v. A.R.E. Accessories, LLC, et al.


                                         BACKGROUND

                                          Factual History

       In September of 2007, Mr. Burkeen purchased a 2007 GMC Sierra C1500 pickup truck.

He also purchased a new A.R.E. Accessories LSII Series tonneau cover, which was installed over

the bed of the pickup truck. On January 15, 2015, Ms. Burkeen lost control of the pickup truck

while driving it on a snow-covered bridge. In the ensuing collision with an oncoming vehicle, the

tonneau cover detached and entered the truck, and Ms. Burkeen’s head hit “a protruding,

uncovered D-ring in the cab of the pickup truck.” (R. 18, Amended Complaint, PageID # 75.) Ms.

Burkeen suffered serious injuries.

                                        Procedural History

       On January 7, 2016, Plaintiffs filed suit against A.R.E. Accessories, Ltd. (“A.R.E.”), in

Kentucky court. A.R.E. removed the case to federal court on the basis of diversity of citizenship,

under 28 U.S.C. § 1441. On October 19, 2016, Plaintiffs filed an amended complaint adding GM

as a defendant. Plaintiffs sought damages from GM for negligence, strict liability, and loss of

consortium. To support those claims, Plaintiffs alleged that during the collision, Ms. Burkeen’s

body “rotate[d] in such as a [sic] manner that her head contacted a protruding D-ring from the cab

of the pick up [sic] truck,” seriously injuring her. (R. 18, Amended Complaint, PageID # 75.) On

November 15, 2016, GM filed a motion to dismiss the claims against it pursuant to Fed. R. Civ. P.

12(b)(6).

       On July 26, 2017, eight months after GM’s motion to dismiss, the district court granted

dismissal of the complaint against GM with prejudice because Plaintiffs’ amended complaint did

not contain sufficient facts to state a claim for relief. On August 18, 2017, Plaintiffs filed a motion

to alter judgment pursuant to Fed. R. Civ. P. 59(e) and a motion for leave to file a second amended




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Case No. 17-6437, Deana Burkeen, et al. v. A.R.E. Accessories, LLC, et al.


complaint pursuant to Fed. R. Civ. P. 15(a). The district court denied the motions on November 3,

2017, finding that Plaintiffs had not met their burden of demonstrating under Fed. R. Civ. P. 59(e)

that amendment of the court’s July 26 order dismissing Plaintiffs’ claims with prejudice was

necessary to prevent manifest injustice, and that it thus could not grant Plaintiffs’ motion for leave

to file a second amended complaint. In its November 3 order, the district court certified the July

26 order as final and appealable under Fed. R. Civ. P. 54(b).

       On December 1, 2017, Plaintiffs filed a notice of appeal, challenging the July 26 order

granting GM’s motion to dismiss, the November 3 order denying both Plaintiffs’ motion to alter

judgment and Plaintiffs’ motion for leave to file a second amended complaint. Plaintiffs argue:

(1) that the district court erred in dismissing Plaintiffs’ claims against GM because “the complaint

plausibly alleged that GM’s design choices . . . were negligent and rendered the pickup truck

defective, substantially causing Deana’s significant head and other injuries,” and (2) that the

district court abused its discretion in denying Plaintiffs’ motion to amend on the grounds that

Plaintiffs had failed to demonstrate manifest injustice as required by the Sixth Circuit under Fed.

R. Civ. P. 59(e). (Plaintiffs’ Br. at 11–12.)

                                           DISCUSSION

I.     Motion to Dismiss

                                        Standard of Review

        This Court reviews a district court’s grant of a motion to dismiss de novo. Majestic Bldg.

Maint., Inc. v. Huntington Bancshares, Inc., 864 F.3d 455, 458 (6th Cir. 2017).

                                                Analysis

       A motion to dismiss is properly granted if the plaintiff has “fail[ed] to state a claim upon

which relief can be granted.” Fed R. Civ. P. 12(b)(6). The reviewing court must accept the factual



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Case No. 17-6437, Deana Burkeen, et al. v. A.R.E. Accessories, LLC, et al.


allegations in the complaint as true and construe the complaint in the light most favorable to the

plaintiff. Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). To survive

a motion to dismiss, a plaintiff must allege facts that, if accepted as true, are sufficient to state a

claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id.

   A.      State Law Claims

        In assessing whether Plaintiffs have pleaded sufficient facts to survive a motion to dismiss,

the court must look to Kentucky law. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). Plaintiffs’

first amended complaint describes the presence of a feature in the pickup truck that Ms. Burkeen’s

head struck, but it does not explain in any way why that feature was dangerous or defective. The

complaint therefore did not allege facts “sufficient to raise a right for relief above the speculative

level” for each state law claim. Cates v. Crystal Clear Techs., LLC, 874 F.3d 530, 534 (6th Cir.

2017) (quotations and citation omitted). We address each cause of action pleaded by Plaintiffs

against GM in turn.

           1. Negligence

        Under Kentucky law, Plaintiffs must establish three elements to proceed with a negligence

claim: (1) GM owed a duty of care to Plaintiffs; (2) GM breached that duty; and (3) the breach

proximately caused Plaintiffs’ injuries. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky.

2003). In their first amended complaint, Plaintiffs state only that Mr. Burkeen purchased a pickup

truck manufactured by GM and that during the accident, Ms. Burkeen was seriously injured when




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Case No. 17-6437, Deana Burkeen, et al. v. A.R.E. Accessories, LLC, et al.


“her head contacted a protruding D-ring from the cab of the pick up [sic] truck.” (R. 18, Amended

Complaint, PageID # 75.) Plaintiffs’ complaint contains no facts explaining how GM negligently

designed, assembled, manufactured, marketed, or sold the truck. As the district court recognized,

“[i]t is not enough for Plaintiffs to simply rely on their basic injury allegations and argue that the

product was somehow defective because it was dangerous”—Plaintiffs needed to provide facts

supporting those claims. Burkeen v. A.R.E. Accessories, LLC, No. 5:16-CV-00017-GNS-LLK,

2017 U.S. Dist. LEXIS 116617, at *10 (W.D. Ky. July 25, 2017) (internal quotations and citation

omitted).

            2. Strict Products Liability

       Kentucky law requires plaintiffs claiming strict products liability to establish “(1) that there

is a ‘product,’ which is (2) in a defective condition unreasonably dangerous to the user or consumer

or his property, and (3) which reaches the user or consumer without substantial change in the

condition in which it is sold; (4) that the product is sold by one who is engaged in the business of

selling such a product which (5) results in physical harm to the ultimate user or consumer or his

property.” Radcliff Homes, Inc. v. Jackson, 766 S.W.2d 63, 68 (Ky. Ct. App. 1989) (citing

Restatement of Torts, Second § 402A (1965)).

       Plaintiffs’ strict liability claim again contains legal conclusions mirroring the elements of

the cause of action but provides insufficient facts to support those conclusions. Plaintiffs fail to

allege facts demonstrating how the truck’s design was defective and unreasonably dangerous, as

required by element (2) of a strict products liability claim under Kentucky law. Id. at 68. The

allegation that Ms. Burkeen’s “head contacted a protruding D-ring from the cab of the pickup

truck” does not provide sufficient factual support to create a plausible inference that GM is liable




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Case No. 17-6437, Deana Burkeen, et al. v. A.R.E. Accessories, LLC, et al.


under a strict products liability theory. Therefore, the district court did not err in granting GM’s

motion to dismiss.

   B.       Dismissal with Prejudice

        This Court reviews a district court’s decision to dismiss with prejudice for abuse of

discretion. Craighead v. E.F. Hutton & Co., 899 F.2d 485, 495 (6th Cir. 1990).

        This Court has stated that “a district court does not abuse its discretion in failing to grant a

party leave to amend where such leave is not sought.” Total Benefits Planning Agency, Inc. v.

Anthem Blue Cross & Blue Shield, 552 F.3d 430, 438 (6th Cir. 2008). However, dismissal with

prejudice in this case goes against the well-established preference for allowing claims to be decided

on their merits where possible. See Foman v. Davis, 371 U.S. 178, 182 (1962). This Court has

recognized that “dismissal with prejudice and without leave to amend is not appropriate unless it

is clear on de novo review that the complaint could not have been saved by an amendment.”

Newberry v. Silverman, 789 F.3d 636, 645–46 (6th Cir. 2015) (quotations and citation omitted);

see also Brown v. Matauszak, 415 F. App’x 608, 614–16 (6th Cir. 2011) (“When a motion to

dismiss a complaint is granted, courts typically permit the losing party leave to amend.”) (quoting

PR Diamonds, Inc., v. Chandler, 364 F.3d 671, 698 (6th Cir. 2004)).

        The district court in this case did not provide any explanation for dismissing the complaint

with prejudice, as opposed to without prejudice. Instead, the district court foreclosed any future

possibility of amendment without indicating any reason to believe that amendment would have

been futile and without providing any other justifications for granting dismissal with prejudice.

When the district court granted the motion to dismiss, it did not cite any “undue delay, bad faith

. . . repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to




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Case No. 17-6437, Deana Burkeen, et al. v. A.R.E. Accessories, LLC, et al.


the opposing party . . . [or] futility of amendment.” Foman, 371 U.S. at 182.1 Because there was

no indication that amendment would have been futile and no other apparent justification was

provided for the dismissal with prejudice, the district court arguably “should . . . have dismissed

the claim[s] . . . without prejudice and with leave to amend.” Newberry, 789 F.3d at 646.

         Because we are remanding for the district court to reconsider its ruling that the dismissal

should have been with prejudice and without leave to amend, we need not further address the

question of whether the district court erred in its treatment of Plaintiffs’ Rule 59(e) and 15(a)

motions.

                                                CONCLUSION

         Because Plaintiffs’ first amended complaint does not contain sufficient facts to state a

plausible claim for relief against GM, the district court was justified in entering an order of

dismissal. However, because it is unclear whether the dismissal should have been with prejudice,

we VACATE the judgment and REMAND for the district court to reconsider whether the

dismissal should have been without prejudice and whether Plaintiffs should be permitted to amend

the complaint.




1
  Defendant GM argues that the district court’s dismissal with prejudice was not in error because plaintiffs had eight
months between the filing of GM’s motion to dismiss and the district court’s dismissal during which they could have
moved to file a second amended complaint. To be sure, moving for leave to file a second amended complaint after the
filing of GM’s motion to dismiss would have been the appropriate course of action for Plaintiffs to have taken.
However, the eight-month hiatus was as much a consequence of the district court’s unexplained delay in ruling on the
motion to dismiss as Plaintiffs’ shortcomings.


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Case No. 17-6437, Deana Burkeen, et al. v. A.R.E. Accessories, LLC, et al.



         ZOUHARY, District Judge, concurring. I concur in the result, but write separately to

highlight how this appeal could have been avoided. The time line of this case is as follows:


        2016


 January          Plaintiffs file Complaint for negligence and strict liability


 February         Removal to federal court


 March            Scheduling Order with December deadline for filing amended pleadings


 September        Plaintiffs move to amend Complaint and add GM as Defendant; Court grants
                  leave to amend, and Plaintiffs file First Amended Complaint
 November         GM files Rule 12(b)(6) Motion to Dismiss the First Amended Complaint
 December         GM, in its Reply brief for the Motion to Dismiss, indicates it would have “no
                  objection” to the court granting Plaintiffs leave to amend the Complaint a
                  second time
        2017
 January          Court suspends all Scheduling Order deadlines until the Motion to Dismiss is
                  decided
 July             Court dismisses GM with prejudice, finding insufficient facts pled
 August           Plaintiffs file Motion for Leave to File Second Amended Complaint
 November         Court denies Motion for Leave; this appeal follows

         The above time line reflects a missed opportunity to meet the goal of Federal Civil Rule 1

-- “the just, speedy, and inexpensive determination of every action and proceeding.” The 2015

advisory committee note to that Rule encourages courts and counsel to cooperatively “share the

responsibility” of active case management, and discourages the “abuse of procedural tools.” In

this case, shortly after the Motion to Dismiss was filed, GM voiced no objection to an amendment.

Yet, this sensible solution apparently was never discussed in the many months during which the



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Case No. 17-6437, Deana Burkeen, et al. v. A.R.E. Accessories, LLC, et al.


Motion sat pending. A simple phone call, initiated by either court or counsel, would likely have

resulted in the filing of a Second Amended Complaint. Such a cooperative effort would have

avoided this appeal and thereby saved the parties, and the court, considerable time and expense.

       Every case, including this one with a serious personal injury, deserves not only to be heard,

but to be heard in a timely manner. All parties to this appeal have suffered prejudice with an

avoidable delay that fails the aspirational goal of Federal Civil Rule 1. To avoid two years of

delay, sometimes all that is needed is some common sense and a conversation.




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