Costa v. Solomon Orthodontic Systems, LLC et al

Filing 29

ORDER granting 15 Motion to Dismiss for Lack of Jurisdiction filed by Arkansas Orthodontics and Arkansas Orthodontics is dismissed as a defendant in this case. Arkansas Orthodontics terminated. Signed by Honorable P. K. Holmes, III on February 3, 2014. (mfr)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
HEATHER COSTA
v.

PLAINTIFF
Case No. 5:13-CV-05140

SOLOMON ORTHODONTIC SYSTEMS, LLC;
ORTHOSYNETICS, INC.; and ARKANSAS
ORTHODONTICS

DEFENDANTS

ORDER
Currently before the Court are Defendant Arkansas Orthodontics’ motion to dismiss for lack
of jurisdiction (Doc. 15) and brief in support (Doc. 16); Plaintiff Heather Costa’s response in
opposition (Doc. 27); and Arkansas Orthodontics’ reply (Doc. 28). Arkansas Orthodontics contends
that it is not a legal entity subject to suit and should therefore be dismissed from this action for lack
of personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2).1 In support of its
motion, Arkansas Orthodontics has submitted evidence demonstrating that it is not a separate legal
entity in and of itself, but rather a fictitious name for a business that was registered with the Arkansas
Secretary of State on February 22, 2013, as Gateway Ventures, LLC. See Doc. 28-1. Neither
Gateway Ventures, LLC, nor its named officer/organizer, Bridget Burris, is a party to this lawsuit.
In addition, although Plaintiff claims that she opposes the dismissal of Arkansas Orthodontics
from the case, she also admits that Arkansas Orthodontics is “an assumed name for Benjamin
Burris” (Doc. 27, p. 2), an individual who filed a certificate with the Washington County, Arkansas,

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Arkansas Orthodontics also argues in the alternative that dismissal is proper pursuant to
Fed. R. Civ. P. 12(b)(4) and (b)(5), due to insufficiency of process and insufficiency of service of
process. Because the Court finds that dismissal is appropriate under Rule 12(b)(2), these other
possible bases for dismissal will not be considered.
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probate clerk on April 24, 2013, identifying “Arkansas Orthodontics” as an assumed or fictitious
name for a business he either operated or intended to operate. See Doc. 27-4. Benjamin Burris is
also not a party to this lawsuit.
According to Federal Rule of Civil Procedure 17(b), the capacity of an entity to sue or be
sued “shall be determined by the law of the state in which the district court is held.” Under Arkansas
law, a fictitious name for a business is not a separate legal entity capable of suit. Rankin v. Farmers
Tractor & Equipment Co., Inc., 219 Ark. 26 (Ark. 1994). In this case, Plaintiff maintains that
Arkansas Orthodontics was listed as one of her employers in the severance documents she received
when she was terminated. However, Plaintiff also admits that during the course of her employment,
she understood her employers to be Defendants Solomon Orthodontic Systems, LLC, and
Orthosynetics, Inc.—not Arkansas Orthodontics. See Doc. 1, paras. 10-11.
Regardless of what representations were made in Plaintiff’s severance documents, the fact
remains that Arkansas Orthodontics is a mere fictitious name and does not exist. Since it is not a
valid legal entity capable of suit under Arkansas law, the Court cannot exercise personal jurisdiction
over it.
IT IS THEREFORE ORDERED that Defendant Arkansas Orthodontics’ motion to dismiss
for lack of jurisdiction (Doc. 15) is GRANTED, and Arkansas Orthodontics is dismissed as a
defendant in this case.
IT IS SO ORDERED this 3rd day of February, 2014.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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