Cornerstone Wrecker Sales Inc v. Bower Services Inc et al

Filing 26

ORDER granting 21 Motion to Amend Complaint to name an additional defendant; denying w/o prejudice 17 Parks Chevrolet, Inc.'s Motion to Dismiss for lack of personal jurisdiction. The Court will permit Plaintiff 45 days from date of entry of this Order in which to conduct discovery on the issue of personal jurisdiction. Signed by Judge Susan Webber Wright on 4/2/09. (jct)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION CORNERSTONE WRECKER SALES, INC., Plaintiff, vs. BOWER SERVICES, INC.; and PARKS CHEVROLET, INC., Defendants. * * * * * * * * * * * ORDER Without filed objection, and considering the liberal nature of Fed.R.Civ.P. 15, the motion [doc.#21] of plaintiff, Cornerstone Wrecker Sales, Inc., for leave to file an amended complaint in order to name an additional defendant is hereby granted. Also before the Court is a motion [doc.#17] of separate defendant, Parks Chevrolet, Inc., to dismiss for lack of personal jurisdiction. Plaintiff has responded in opposition to defendant's motion, stating inter alia that additional discovery is needed on the issue of personal jurisdiction. To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must state sufficient specific facts in the complaint to support a reasonable inference that the defendant can be subjected to jurisdiction within the state. Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir. 2004) (citation and internal quotation marks omitted). Once jurisdiction has been controverted or denied, the plaintiff has the burden of proving such facts. Id. The plaintiff's prima facie showing must be tested, not by the pleadings alone, but by the affidavits and exhibits presented with the motions and in opposition thereto. Id. Although defendant denies that further discovery is needed, this Court, having considered

No. 3:08cv00178 SWW

plaintiff's arguments and also considering that an additional defendant will be brought into this action, will permit plaintiff forty-five (45) days from the date of entry of this Order in which to conduct discovery on the issue of personal jurisdiction. In this respect, defendant's motion to dismiss for lack of personal jurisdiction is denied without prejudice. Defendant(s) may refile this motion in the same or revised manner following the expiration of the 45-day period for conducting discovery on personal jurisdiction.

IT IS SO ORDERED this 2nd day of April 2009. /s/Susan Webber Wright UNITED STATES DISTRICT JUDGE

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