West Wind Air LLC v. Thrush Aircraft Inc

Filing 152

ORDER granting #112 Pratt & Whitney's motion to dismiss. #132 Motion for summary judgment is denied as moot. #106 Motion is granted as modified. Service on Planesmart is quashed; Thrush must re-serve the company by 8/31/2018. Signed by Judge D. P. Marshall Jr. on 8/13/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
WEST WIND AIR LLC, d/b/a CHRISAIR
v.

PLAINTIFF

No. 5:16-cv-274-DPM

THRUSH AIRCRAFT, INC.

DEFENDANT/fHIRDp ARTY PLAINTIFF

v.
PRATT & WHITNEY CANADA
CORP. and PLANESMART AIRCRAFT
SERVICES LLC

THIRD-PARTY
DEFENDANTS

ORDER

There are many pending motions.

Here's a start at resolving

them.
• The Court Lacks Personal Jurisdiction
Over Pratt & Whitney Canada

The governing law is laid out in Orders NQ 18, 36, 37, 45, 88 & 146.
Taking the jurisdictional facts in Thrush's favor, P&W Canada has some
Arkansas ties. But they're not enough to confer general jurisdiction
under either of Thrush's theories. And Thrush hasn't shown how this
case" arise[s] out of or relate[ s] to" any of P&W Canada's contacts with
Arkansas to establish specific jurisdiction.

Rudzewicz, 471 U.S. 462, 472 (1985).

Burger King Corp. v.

P&W Canada's motion for

summary judgment is moot. The Court will, as it has said, probably

allow apportionment of P&W Canada's fault. A definitive ruling on
that issue is forthcoming.
• Service on Planesmart Was Bad;
But Thrush May Cure Promptly

Planesmart moves to dismiss Thrush's third-party complaint
against it based on service problems under Federal Rules of Civil
Procedure 12(b)(4) and 12(b)(S). Planesmart is a Mississippi LLC that
dissolved shortly after becoming a party to this case. The parties don't
yet grapple about what the dissolution will mean as a practical matter
for collection on any potential judgment. Planesmart had one member,
Donald Scott Brown, who was also the registered agent for service.

NQ 106-1. Service on Mr. Brown was impossible, though, because he
passed away nearly two years before Thrush filed its third-party
complaint. Thrush therefore served Kimberly Brown, Mr. Brown's
widow and the former adminstratix of his estate.
Did Thrush make good service on Planesmart?

No.

Either

Arkansas or Mississippi law applies because this Court sits in the
Eastern District of Arkansas and Thrush served Planesmart in
Mississippi.

FED.

R. CIV. P. 4(e)(l) & (h)(l)(A). There's no need to

choose one state's law, however, because service was defective under
both.
According to Thrush, as personal representative of Donald
Brown's estate, Kimberly Brown took on Donald Brown's role as
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registered agent for Planesmart. MISS. CODE ANN. § 79-29-709(2). But
Kimberly Brown wasn't the estate's personal representative when
Thrush served this company; she had been discharged nearly five
months earlier. NQ 105 at 2. And in cases like this-where the registered
agent can't reasonably be served-Mississippi and Arkansas statutes
provide alternative ways of serving the entity.

MISS. CODE ANN.

§ 79-35-13(b); ARK. CODE ANN.§ 4-20-113(b). Thrush hasn't provided
a sufficient record for the Court to conclude that, after being
discharged, Brown was Planesmart' s "governor" within the meaning
of the statutes, ARK. CODE ANN. § 4-20-113(b) and MISS. CODE ANN.
§ 79-35-13(b), or that service was good under any other provision of
these states' laws.

No service was made, for example, on the

Mississippi Secretary of State in accordance with the Mississippi Rules
of Civil Procedure. MISS. CODE ANN.§ 79-35-13(b).
Given how far the case has progressed, Planesmart' s belated
motion on the service issues, this company's full participation since
September 2017, and the other filings, the Court reopens and extends
Thrush's time to serve Planesmart properly. FED. R. CIV. P. 4(m). The
law favors a decision on the merits, which Planesmart also seeks in its
pending summary judgment motion, NQ 116.
Thrush's related motion, NQ 141, must hang fire.

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That motion, and

*

*

*

Pratt & Whitney's motion to dismiss, NQ 112, is granted. Pratt &
Whitney's motion for summary judgment, NQ 132, is denied as moot.
Planesmart's motion, NQ 106, is granted as modified.
Planesmart is quashed;

Service on

Thrush must re-serve the company by

31 August 2018.
So Ordered.
D.P. Marshall Jr.
United States District Judge

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