Garrett v. Prime Transport Inc et al

Filing 13

ORDER denying 4 Plaintiff's Motion to Transfer Case; granting 6 Defendants' Motion to Dismiss. Pursuant to the Judgment entered together with this Order, this action is DISMISSED WITHOUT PREJUDICE. Signed by Judge Susan Webber Wright on 4/29/2011. (jct)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
JULIE E. GARRETT
Plaintiff
V.
PRIME TRANSPORT, INC.; DALBO
HOLDINGS, INC.; DALBO, INC., and
KYLE STORY

Defendants

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NO: 3:10CV00165 SWW

ORDER
Plaintiff Julie E. Garrett (“Garrett”) brings this personal injury action against Defendants
Prime Transport, Inc. (“Prime”), Dalbo Holdings, Inc. and Dalbo, Inc. (collectively “Dalbo”),1
and Kyle Story (“Story”). Before the Court are Garrett’s motion to transfer (docket entry #4)
and Defendants’ response in opposition (docket entry #8). Also before the Court is Defendants’
motion to dismiss, seeking dismissal of claims against Prime, Dalbo Holdings, Inc., and Dalbo,
Inc. for lack of personal jurisdiction and dismissal of claims against all defendants for
insufficient process and service of process. The time for responding has passed, and Garrett has
not responded. After careful consideration, and for reasons that follow, Garrett’s motion seeking
transfer to the United States District Court for the Northern District of Indiana will be denied,

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Garrett alleges that Dalbo, Inc. is a wholly owned subsidiary of Dalbo Holdings, Inc.,
and she refers to the separate entities collectively as “Dalbo,” making no distinction between the
two. See Complaint, docket entry #1.
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Defendants’ motion to dismiss will be granted, and this case will be dismissed without prejudice.
I. Background
The following facts are taken from the complaint. On January 15, 2007, Garrett, an
Oklahoma resident, was involved in an automobile accident in Fort Worth, Texas in which she
sustained physical injuries, including the traumatic amputation of her left arm. The accident
involved Garrett’s vehicle and Prime’s road tractor. At the time of the accident, Story was
driving the road tractor and transporting a trailer for Dalbo.
Garrett reports the following history regarding litigation arising from the January 15,
2007 collision:

1.

On October 24, 2008, Garrett filed suit against Defendants and others in the
United States District Court of the Western District of Oklahoma, and on July 23,
2009, the district court dismissed all claims against Story and Prime, without
prejudice, for lack of personal jurisdiction. Subsequently, Garrett voluntarily
dismissed the remaining pending claims and the Oklahoma action was dismissed
in its entirety.

2.

On February 22, 2010, Garrett filed suit against Defendants in the United States
District Court for the Northern District of Texas. On May 11, 2010, the district
court dismissed Garrett’s claims against Prime and Dalbo as time barred. On July
6, 2010, the district court dismissed Garrett’s remaining claim against Story for
failure to comply with an order to show proof of service as to Story. See Garrett
v. Prime Transport, No. 4:10CV122-A (N.D. Tex, Order entered July 6, 2010).

3.

On July 22, 2010, Garrett filed suit against Defendants in the United States
District Court for the Northern District of Indiana. The same day, Garrett
commenced this action against Defendants, which duplicates her lawsuit filed in
the Northern District of Indiana.

II. Motion to Transfer
Garrett asks the Court to transfer this case to the Northern District of Indiana pursuant to

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28 U.S.C. § 1404(a) “so that all claims may be litigated as to all parties involved in this
lawsuit.” Docket entry #4, at 3. Garrett states that Indiana is “the home jurisdiction” of Prime
and is the most convenient forum for litigating this case. She further states that she “filed this
current action out of an abundance of procedural caution, yet still wishes to exercise her right to
choose her forum.” Docket entry #4, at 3.
Title 28 U.S.C. § 1404(a) provides: “For the convenience of the parties and witnesses,
in the interest of justice, a district court may transfer any civil action to any other district or
division where it might have been brought.” Because Garrett filed suit in the Northern District
of Indiana before she instituted this duplicate case, transfer to the Northern District of Indiana
would serve none of the remedial purposes set forth under § 1404(a). Section § 1404(a)
addresses “problems arising where, despite the propriety of the plaintiff’s venue selection, the
chosen forum was an inconvenient one.” See Van Dusen v. Barrack, 376 U.S. 612, 634, 84
S.Ct. 805, 818 (1964) (discussing the choice of law issues inherent with transfers under 28
U.S.C. §§ 1404(a) and 1406(a)). Given Garrett’s concession that she filed this duplicate action
“out of an abundance of procedural caution,” the issue here is not one of inconvenience but one
of Garrett’s attempt to avoid a “procedural” problem.
III. Motion to Dismiss
Personal Jurisdiction
Separate Defendants Prime Transport, Inc., Dalbo Holdings, Inc. and Dalbo, Inc. move to
dismiss claims against them for lack of personal jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2).
A federal court sitting in a diversity action may assume jurisdiction over a nonresident defendant
to the extent permitted by the long arm statute of the forum state. Arkansas’s long-arm statute

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permits the assertion of jurisdiction to the fullest extent allowed by the Fourteenth Amendment’s
Due Process Clause, which permits the exercise of personal jurisdiction over a nonresident
defendant that has “certain minimum contacts with [the forum state] such that the maintenance of
the suit does not offend ‘traditional notions of fair play and substantial justice.’” International
Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154 (1945)(quoting Milliken v. Meyer, 311
U.S. 457, 463 (1940)).
The Supreme Court has held that in order to exercise personal jurisdiction, "it is essential in
each case that there be some act by which the defendant purposefully avails itself of the privilege
of conducting activities within the forum State, thus invoking the benefits and protections of its
laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228 (1958). Five factors should be
considered when resolving a personal jurisdiction inquiry: (1) the nature and quality of the
defendant’s contacts with the forum state; (2) the quantity of those contacts; (3) the relation of the
cause of action to the contacts; (4) the interest in the forum state in providing a forum for its
residents; and (5) the convenience of the parties. Digi-Tel Holdings, Inc. v. Proteq
Telecommunications (PTE), Ltd., 89 F.3d. 519, 522-23 (8th Cir. 1996). The first three factors are
closely related and are of primary importance, while the last two factors are secondary. Id. at 523.
The Supreme Court has identified two types or theories of personal jurisdiction: general
and specific. General personal jurisdiction exists when the defendant has “continuous and
systematic” contacts with the forum state, even if the injuries at issue in the lawsuit did not arise
out those contacts. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16,
104 S.Ct. 1868 (1984). Specific personal jurisdiction, in contrast, exists only if the injury giving
rise to the lawsuit occurred within or had some connection to the forum state. Id. at 414, 104 S.Ct.

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1868.
Prime and Dalbo2 assert that neither has conducted activity in forum state that would
support the exercise of personal jurisdiction. However, the separate defendants proffer no
affidavits or other evidence on the issue, and Garrett has not filed a response in opposition to the
motion to dismiss. Accordingly, dismissal for lack of personal jurisdiction is proper at this stage
only if, resolving all facts in Garrett’s favor, the complaint is void of allegations sufficient to
establish personal jurisdiction. See Dakota Industries, Inc. v. Dakota Sportswear, Inc. 946 F.2d
1384, 1387 (8th Cir. 1991)(citations omitted)(“If the district court does not hold a hearing and
instead relies on pleadings and affidavits, as it did here, the court must look at the facts in the light
most favorable to the nonmoving party, and resolve all factual conflicts in favor of that party.”).
In her complaint, Garrett alleges that Prime “is incorporated or has its principal place of
business in the State of Indiana” and that Dalbo is “incorporated or has its principal place of
business in the State of Utah.” Compl., ¶ 3-4. Garrett further alleges that Prime and Dalbo have
“conducted business in the state of Arkansas . . . at relevant times thus giving this Court
jurisdiction over the Defendant.” See id.
Garrett does not allege that Prime or Dalbo are physically present in Arkansas or that they
have designated agent for service of process here, and it is undisputed that the accident giving rise

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Garrett refers to Dalbo Holdings, Inc. and Dalbo, Inc. collectively as “Dalbo” but alleges
no facts that would warrant disregarding the separate corporate entities or exercising personal
jurisdiction over one based on the activities of the other. Cf. Anderson v. Dassault Aviation, 361
F.3d 449 (8th Cir. 2004)(where parent company’s contacts with forum state went well beyond
mere ownership of a subsidiary residing in the forum state, the district court had personal
jurisdiction over the parent company). Because Garrett refers to the separate entities collectively
as “Dalbo,” the Court will do the same.
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to Garrett’s claims occurred in Fort Worth, Texas. Accordingly, the Court finds that the only
possible basis for exercising personal jurisdiction over Prime and Dalbo is that the entities have
conducted business activities in Arkansas that are sufficiently continuous and systematic to subject
them to the Court’s general jurisdiction.
The complaint contains no allegations regarding the nature, quantity, or quality of the
separate defendants’ alleged business activities in Arkansas; Garrett merely alleges that Prime and
Dalbo have conducted business in Arkansas. Viewing the complaint in a light most favorable to
Garrett, the Court finds that pleading is void of allegations sufficient to establish personal
jurisdiction over Prime and Dalbo. See Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1074 (8th
Cir. 2004)(affirming dismissal for lack of personal jurisdiction over separate defendants where
plaintiff rested on conclusory allegations in complaint to establish minimum contacts).
Process and Service of Process
Approximately six months after Garrett commenced this lawsuit, Defendants moved for
dismissal for insufficient process under Fed. R. Civ. P. 12(b)(4) and insufficient service of process
under Fed. R. Civ. P. 12(b)(5).3 Motions for dismissal under Rule 12(b)(5) concern the proper
procedure for serving the summons and complaint and challenge the mode or lack of delivery of
the summons and complaint, and motions for dismissal under Rule 12(b)(4) challenge the content
of the summons. Defendants provide no specific objections regarding mode of service of the
summons and complaint or the content of the summons and assert only that Garrett has “failed to
serve any of the Defendants.” Docket entry #7, at 5. Accordingly, the Court construes

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Defendants assert insufficient process and service of process in an answer filed October
2, 2010. Docket entry #2, ¶ 24.
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Defendants’ motion as one to dismiss for insufficient service of process based on lack of delivery
of the summons and complaint.
Garrett has failed to respond to Defendants’ motion and has failed to file proof of service as
required under Fed. R. Civ. P. 4(l). Rule 4(m) of the Federal Rules of Civil Procedure provides:
If service of the summons and complaint is not made upon a defendant within 120 days
after the filing of the complaint, the court, upon motion or on its own initiative after
notice to the plaintiff, shall dismiss the action without prejudice as to that defendant
or direct that service be effected within a specified time; provided that if the plaintiff
shows good cause for the failure, the court shall extend the time for service for an
appropriate period.
Fed. R. Civ. P. 4(m).
A district court has discretion to deny a motion to dismiss for lack of timely service if it
concludes there is good cause for a plaintiff’s failure to serve within 120 days. Here, however,
time for responding to motion to dismiss has passed, and Garrett has failed to come forward with
any reason for her failure to serve Defendants. Accordingly, the Court finds that this action should
be dismissed without prejudice for failure to comply with Rule 4(m).
IV. Conclusion
For the reasons stated, the Court finds that Plaintiff’s motion to transfer (docket entry #4)
should be and is hereby DENIED and that Defendants’ motion to dismiss (docket entry #6)
should be and is hereby GRANTED. Pursuant to the judgment entered together with this order,
this action is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED THIS 29TH DAY OF APRIL, 2011.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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