Avendano-Bautista v. Kimbell Gin Machinery Company et al

Filing 29

ORDER granting 13 Motion to Dismiss due to lack of personal jurisdiction over Lubbock. Signed by Judge J. Randal Hall on 03/28/2017. (maa)

IN

THE

UNITED

STATES

DISTRICT

SOUTHERN DISTRICT

COURT

FOR THE

OF GEORGIA

AUGUSTA DIVISION

ADRIAN AVENDANO-BAUTISTA,

*

Plaintiff,

*
*

v.

KIMBELL

GIN

*

MACHINERY

COMPANY

and LUBBOCK ELECTRIC CO.,

CV 116-108

*

INC.,

*
*

Defendants.

*

ORDER

Before

("Lubbock")

the

Court

Motion

is

to

Dismiss.

response in opposition

support (doc. 26).x
briefed
stated

and

is

herein,

Defendant

Lubbock

(Doc.

(doc. 23),

Electric

13.)

Co.,

Plaintiff

Inc's

filed

a

and Lubbock filed a reply in

Accordingly, Lubbock's motion has been fully

ripe

for

the

Lubbock's

Court's

motion

is

review.
GRANTED

For
due

the
to

reasons
lack

of

personal jurisdiction over Lubbock.

I.

BACKGROUND

Plaintiff alleges in his complaint that Defendants Lubbock2
and

Kimbell

1 Prior

to

Gin

Plaintiff

Machinery
filing

his

Company

response

("Kimbell")3

in opposition,

designed,

Lubbock

filed

an

amended brief in support of its motion to dismiss, which substitutes and
replaces a portion of its original brief in support.
(Doc. 16; see also Doc.
13-1.)

2 Lubbock is a Texas corporation with its principal place of business
Texas.
(Compl., Doc. 1, 1 3; Moffett Am. Aff., Doc. 16-1, H 4-6.)
3 Kimbell is a Texas corporation. (Compl. 12.)

in

manufactured,

a

2015

inspected,

Kimbell

(Compl., Doc. 1,
("Collins"),

(Id.

Gin

tested,

(the

SI 10.)

marketed,

"Gin")

and

sold,

its

and distributed

component

Plaintiff's employer,

parts.4

Collins Gin, Inc.

purchased the Gin from Kimbell in early June 2015.

SI 19.)

A Kimbell representative was

sent to Collins'

site to direct and oversee the assembly of the Gin,

prior to it being fully assembled and operational.
On June 11, 2015,

job

but departed

(Id. SI 20.)

the Gin was started by Collins'

employees

but was quickly halted when a "very loud noise" was heard from
the Gin.

(Id.

restarted

the

SIS! 21-22.)
Gin

"in

noise."

(Id. SI 23.)

Collins'

employees

an

On June 12,
effort

to

2015,

locate

Collins'
the

noticed that

not

all

of

the

(Id.

climbed

"in

an

Gin's

SISI 24-25.)

the

source

of

the

While standing on the operator platforms,

beds rollers were operational.
onto

employees

Gin's

beds

conveyor

Plaintiff then

attempt

to

determine

specifically which beds were not rolling and for the purpose of
'interrupting'
25.)

the

light

beams

to

trigger

each

"Within seconds of climbing onto the bed,

bed."

(Id.

SI

Plaintiff's foot

became caught between two rollers that were rolling in opposite
direction[s],

which

created

a

'pinch

point'"

Plaintiff's legs between the adjoining rollers

that

pulled

and "shatter[ed]

every bone in his body below the knee."5 (Id. SIS! 26-30.)

4 Specifically, Lubbock "designed, inspected, tested, and manufactured the
electrical components of the Gin." (Compl. 1 12; see also id. II 10, 35.)
5 As alleged by Plaintiff, "[w]hen working correctly, and not being manually
controlled by a user, all of the beds [and therefore, the rollers] turn in
the same direction - either forward or reverse."
2

(Compl. 1 17.)

At the time

On July 6,

2016,

Plaintiff initiated the present lawsuit in

this

Court.

In his

(a)

"strict

liability

O.C.G.A.

§

and

51-1-11;

wantonness,

47-53.)

complaint,

(b)

September

products

"product

recklessness;"

On

Plaintiff alleges

and

19,

(c)

three

liability"

liability

pursuant

-

Lubbock

to

willfulness,

"negligence."

2016,

claims:

(See

entered

a

id. , SISI

special

appearance and filed its present motion to dismiss for lack of

personal

jurisdiction and,

in the alternative,

for

state a claim upon which relief can be granted.

II.

LEGAL

failure

to

(Doc. 13.)

STANDARD

"In the context of a motion to dismiss for lack of personal

jurisdiction

in

which

no

evidentiary

hearing

is

held,

the

plaintiff bears the burden of establishing a prima facie case of

jurisdiction over the movant, nonresident defendant."
SSE,

Inc.,

843 F.2d

489, 492

(11th Cir.

1988).

Morris v.

The plaintiff

establishes a prima facie case by presenting "enough evidence to
withstand

F.2d

1510,

evidence
forth

that

a

to

motion

1514

for

(11th

withstand

"substantial

reasonable

directed verdict."

Cir.
a

motion

evidence

and

1990).
or

...

fair-minded

impartial judgment might

A

Madera

party

v.

Hall,

presents

directed

verdict

by

of

quality

and

such

persons

in

the

v. Nations Bank of Florida, 53 F.3d 1548, 1554

putting
weight

of

Walker

(11th Cir. 1995).

of Plaintiff's injuries, the Gin was not being manually controlled.
28. )

enough

exercise

reach different conclusions."

916

(Id. 1

In

assessing

jurisdiction,
are

taken

a

the

as

motion

(11th

true

Cir.

dismiss

for

lack

of

personal

facts presented in the plaintiff's
to

the

Cable/Home Commc'n Corp.
855

to

1990)

extent

they

are

v. Network Prods.,
(citations

uncontroverted.

Inc.,

omitted).

complaint

902 F.2d 829,

If

the

defendant

submits affidavits challenging the allegations in the complaint,
however,

the

burden

shifts

back

to

evidence supporting jurisdiction.
v.

Food

Movers

2010).

If

conflict

the

with

construe

Id.

Intern. ,

all

Inc. ,

plaintiff's
the

to

produce

F.3d

complaint

1249,

and

1257

supporting

affidavits,

inferences

in

(11th

favor

the

of

Cir.

evidence

court

the

Inc.

must

plaintiff.

(citing Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269

(11th Cir.

2002)).

III.

In his Complaint,
to

plaintiff

Diamond Crystal Brands,

593

defendant's

reasonable

the

personal

transacts

persistent
towards

Plaintiff alleges that Lubbock is subject

jurisdiction in Georgia

and

solicits

course

Georgia

assembling

the

of

business

purposeful

citizens

electrical

3-4),

because

in

Georgia,

conduct

. . . by

10,

12,

Lubbock "regularly
and

in

installing,

components

(Compl. 1 8; see also id. M

Georgia's

DISCUSSION

of

Georgia

contends

that

this

a

directed

Cotton

or

Gins."

While conceding that

long-arm statute is arguably satisfied,

Lubbock

in

configuring,

Kimbell

35.)

engages

Court

(doc.

lacks

16,

at

personal

jurisdiction

over

it

because

Plaintiff

cannot

satisfy

the

"minimum contacts" requirement of the Fourteenth Amendment's Due
Process

Clause.

To

determine whether a nonresident defendant

personal

jurisdiction,

analysis.

United

(11th Cir.

2009) .

exercise

of

the

Techs.

Corp.

First,

personal

Court

the

v.

must

perform

Mazer,

Court must

jurisdiction

is

is

556

subject to

a

F.3d

determine

proper

two-part

1260,

1274

whether

under

the

the

forum

state's long-arm statute as that statute would be interpreted by

the state's Supreme Court.6
whether

state

there

to

are

satisfy

Amendment.

Id.;

Unemployment

Comp.

Lubbock concedes

-

Id.

sufficient

the

Due

Int'l

&

Next, the Court must determine

"minimum

Process
Shoe

Placement,

contacts''

Clause

Co.

v.

326

U.S.

of

with

the

and the Court concludes

-

Office

(1945).

that

forum

Fourteenth

Washington

310

the

of

Because

subsection

(1)

of Georgia's long-arm statute7 is satisfied by Lubbock's delivery

6 The Eleventh Circuit has held that "the Georgia long-arm statute [O.C.G.A. §
9-10-91] does not grant courts in Georgia personal jurisdiction that is
coextensive with procedural due process," but instead "imposes independent
obligations that a plaintiff must establish for the exercise of personal
jurisdiction that are distinct from the demands of procedural due process."
Diamond Crystal Brands, Inc./ 593 F.3d at 1259.
"[C]ourts must apply the
specific limitations and requirements of O.C.G.A. § 9-10-91 literally and
must engage in a statutory examination that is independent of, and distinct
from, the constitutional analysis to ensure that both, separate prongs of the
jurisdictional inquiry are satisfied." Id. at 1263.

7 O.C.G.A.

§

9-10-91(1)

("A

court

of

this

state

may

exercise

personal

jurisdiction over any nonresident or his or her executor or administrator, as
to a cause of action arising from any of the acts, omissions, ownership, use,
or possession enumerated in this Code section, in the same manner as if he or
she were a resident of this state, if in person or through an agent, he or
she . . . [t]ransacts any business within this state."); see also Diamond
Crystal Brands, Inc., 593 F.3d at 1264 ("Georgia's long-arm statute permits

jurisdiction where a plaintiff's cause of action arises out of a nonresident
defendant's

transaction of

any business within Georgia

. . .

[and]

we

must

of

the

Gin's

Georgia,8

electrical

the

components

propriety

of the

to

Collins

Court's

in

exercise

jurisdiction over Lubbock effectively hinges

on

Waynesboro,

of personal

the

resolution

of the due process analysis.

In

the

context

of

personal

jurisdiction,

"the

Due

Process

Clause requires that the defendant's conduct and connection with
the

forum

being

593

State

haled

F.3d

be

into

at

such

court

1267

that

he

there."

(internal

should

reasonably

Diamond

quotations

Crystal

and

anticipate

Brands,

citations

Inc.,

omitted).

Due process therefore requires that a nonresident defendant have
"certain

minimum

maintenance

fair

play

of

contacts

the

and

suit

substantial

nonresident

privilege

of

sufficient

conducting

Id.

"The

conduct,

nexus

focus

that is,

significant

offend

traditional

Id.

"purposefully
activities

those

always

(internal

availed

—

that

contacts

be

whether the

activities

such

that

the

notions

of

quotations

itself

is,

of

the

purposefully

in the forum state and there must be

between

must

not

justice."

forum

This requires a plaintiff to show that

defendant

establishing contacts —

the

does

and citations omitted) .

the

with

within

on

the

and

the

a

litigation."

nonresident

defendant's

defendant deliberately engaged in

a

state

or

created

obligations with residents of the forum . . . [to]

continuing

ensure[]

that

interpret this statute literally and give full effect to the breadth of its
language." (internal quotations and citations omitted)).

8 "On or about May 22, 2015, [Lubbock] shipped the [Gin's] electrical control
system . . . via Fedex Freight to [Collins], 532 Myrick Street, Waynesboro,
Georgia 30830."

(Moffett Am. Aff. SI 22 & Ex. 1.)

a defendant will not be subject to
random,

fortuitous,

or

(emphasis original)
In

jurisdiction based solely on

attenuated

contacts."

•

support of its motion to

1268

dismiss,

Lubbock has

submitted

Steve Moffett,

who

inter alia:

Lubbock builds all of its
software,
and hardware at
Lubbock,

•

at

(internal quotations and citations omitted).

the amended affidavit of its general manager,
attests,

Id.

control panels, operating
its facility located in

Texas.

Lubbock is not

registered to do business

in

Georgia,

does not maintain an office in Georgia, and does not
have
any
officers,
employees,
or
other
agents
regularly present in Georgia.

•

Lubbock

does

not

regularly

advertise

or

otherwise

solicit business in Georgia.

•

Lubbock

does

Georgia,

not

own

real

or

personal

property

in

nor does it have any financial accounts in

•

Georgia.
Lubbock does not derive substantial revenue from goods
used or consumed or services rendered in Georgia.

•

Lubbock assembled,

tested, negotiated the sale of, and

received

for

payment

the

Gin's

electrical

control

system and component parts in Texas.
•

Lubbock

sold

component
delivered

the

parts
to

Gin's

to

electrical

Kimbell,

Collins

in

with

control

the

Waynesboro,

system

parts

to

Georgia

and

be
and

installed by Kimbell.

(Moffett Am. Aff.,

Doc.

16-1,

W

4-23 & Ex.

1.)

In response,

Plaintiff argues that he is not in a position to rebut Lubbock's
factual allegations without the benefit of compulsory discovery.

Notably,

Plaintiff has provided no evidence to rebut Lubbock's

showings or to support his claims that this Court has personal

9 According to Mr. Moffett,

less than one percent of Lubbock's 2015 sales

revenue resulted from sales in Georgia.

(Moffett Am. Aff. 1 18.)

jurisdiction

over

Lubbock.

Rather,

Plaintiff

attacks

Mr.

Moffett's attestations by alleging they are vague and conclusory
because

he

"uses

such

subjective

terms

as

^frequently,'

^routinely,' and 'regularly' without providing concrete facts on

these

key

Plaintiff

factors,"
to

rest

which,

on

the

in

Plaintiff's

conclusory

jurisdiction in his complaint.
11 8, 10,

12,

Here,

Plaintiff

parts

insufficient

(S.D.

that

Ga.

Mar.

failed

Gin's

to

23 at 5;

to

personal

see also Compl.

carry

his

burden

this

personal

control

shipment

jurisdiction.

2012)

state

of

Although

system

alone
See

of

and

is

an

Thomas

v.

2012 WL 993244,

Case No. CV l:ll-CV-074,

22,

the

electrical

Georgia,

for

Inc.,

involved

has

the

basis

Strange Eng'g,
*6

(Doc.

of

existence of personal jurisdiction.

delivered

component

allegations

entitles

35.)

demonstrating the
Lubbock

opinion,

at

("The only portion of the contract

Georgia

was

the

shipment

of

the

product to Plaintiff's principal place of business in Grovetown,

Georgia.

Shipment,

jurisdiction.")

(citing

Mortensen & Lange,
Mason

Funeral

(N.D.

Ga.

Dec.

however,

Home,

10,

cannot

Francosteel

19 F.3d 624,
No.

628

be

Corp.

basis
M/V

v.

(11th Cir.

1:07-cv-2805,

2008)).

the

Looking

2008

at

the

for

Charm,

1994);

WL

personal
Tiki,

Baynes v.

5191808,

substance

at

of

*3

the

underlying transaction at issue, there are no additional factors
here that would compel a finding that Lubbock has deliberately
8

engaged

in

significant

intentionally
sufficient
Diamond

Crystal

electrical

with

Georgia

Brands,

Inc.,

that

defendant

within

itself

with

contacts"

nonresident

Gin's

affiliated

contacts

"further

activities

to

to

a

control

F.3d

be

forum).

Rather,

conclusory

allegations

process.

the

to

was

claims of
at

1257,

claims

on

Plaintiff

jurisdiction,
which he

against

has

to

See

(listing

connect

a

shipping of the

parts

to

Georgia

and Lubbock has rejected

to

the

contrary

submission of Mr. Moffett's amended affidavit.10
burden

attempted

1268-69

component

appears to be an isolated transaction,
Plaintiff's

due

at

otherwise

or

sufficient

system and

or

Georgia

satisfy

593

might

Georgia

produce

the

supporting

Diamond Crystal Brands,

his

Inc.,

Accordingly,

Lubbock must be dismissed

for

its

Therefore,

evidence

failed to do.

by

593

F.3d

Plaintiff's

lack of personal

jurisdiction.11

Because "[a] court without personal jurisdiction

10 While

asserts

Plaintiff

that

Mr.

Moffett's

attestations

are

vague

and

conclusory, the Court concludes that they are sufficient for the purposes of
rebutting
Plaintiff's
allegations
as
to
the
existence
of
personal
jurisdiction.
Unlike the cases cited by
Plaintiff,
Mr.
Moffett's
attestations

are

standards,

but

activities

that

not

threadbare

rather
are

are

based

recitals

specific
on

the

of

factual
affiant's

the

relevant

declarations
personal

jurisdictional

as

to

knowledge

Lubbock's
and

that

challenge Plaintiff's allegations as to Lubbock's relation to the State of
Georgia.
Compare Doc. 16-1; with Meier, 288 F.3d at 1275 n.14 ("The Court
notes

that

statements

Defendants'

that

the

Sun

affidavits

contain

Defendants

are

not

little

more

subject

to

than

conclusory

jurisdiction

in

Florida."); and Posner v. Essex Ins. Co., 178 F.3d 1209, 1215 (11th Cir.
1999) (assigning little weight to an affiant's "conclusory assertions of
ultimate facts" as opposed to "specific factual declarations within the
affiant's personal knowledge"); see also Mazer, 556 F.3d at 1276-77; Matthews
v. Brookstone Stores, Inc., 469 F. Supp. 2d 1056, 1061 n.4 (S.D. Ala. 2007).

11 Plaintiff requests limited jurisdictional discovery "to determine the full
extent that [Lubbock] has ties with the State of Georgia . . . ."
(Doc. 23,
at 2.)
Generally, a plaintiff "should be given the opportunity to discover
facts that would support his allegations of jurisdiction."
Maid-Pour v.
9

is powerless to take further action,"
178

F.3d

1209,

the

Court

does

1214
not

n.6

(11th

Cir.

reach Lubbock's

Posner v.
1999)

Essex Ins.

(citations

assertions

that

Co.,

omitted),

Plaintiff

has

failed to state a claim upon which relief can be granted.

IV.

Upon

due

CONCLUSION

consideration

and

in

accordance

with

the

foregoing, IT IS HEREBY ORDERED that Lubbock's motion to dismiss
(doc.

13)

is GRANTED due to lack of personal jurisdiction over

Lubbock.

Georqiana Cmty. Hosp., Inc., 724 F.2d 901, 903 (11th Cir. 1984) (citations
omitted). Where a complaint is "insufficient as a matter of law to establish

a prima facie case that the district court had jurisdiction," however, it is
an abuse of discretion to grant jurisdictional discovery.
Butler v. Sukhoi
Co., 579 F.3d 1307, 1314 (11th Cir. 2009) (citations omitted).
Moreover,
courts are "not obligated to permit jurisdictional discovery based on a

partyfs 'mere hunch that there may be facts-or a desire to find out if there
are any facts-that justify the exercise of personal jurisdiction.'" Stevens
v. Reliance Fin. Corp., No. 2:13-CV-416-MEF, 2014 WL 631612, at *9 (M.D. Ala.

Feb. 18, 2014) (quoting Kason Indus., Inc. v. Dent Design Hardware, Ltd., 952
F. Supp. 2d 1334, 1353 (N.D. Ga. 2013)).
As an initial matter, Plaintiff's
boiler plate recitations of jurisdiction in his complaint are insufficient to
establish a prima facie case of personal jurisdiction over Plaintiff.
See
Madera, 916 F.2d at 1514; Walker, 53 F.3d at 1554.
Even ignoring this
deficiency, however, these allegations have been refuted by Lubbock through
Mr.

Moffett's amended affidavit, and Plaintiff has presented no evidence in

response that would support a reasonable inference that Lubbock has the
requisite minimum contacts to satisfy the Fourteenth Amendment's Due Process
Clause.
Further, Plaintiff has failed to provide the Court with any proposed
discovery requests that he believes are necessary to support his claims of

jurisdiction.
Accordingly, Plaintiff is essentially arguing that he should
be given free rein to explore whether Lubbock has engaged in any activity
that would allow Plaintiff to sue in this forum; this, however,

is not the

purpose of jurisdictional discovery.

See Atlantis Hydroponics, Inc. v. Intfl

Growers

2d 1365,

Supply,

Inc.,

915

F.

Supp.

1380

(N.D.

Ga.

2013)

("The

purpose of jurisdictional discovery is to ascertain the truth of the
allegations or facts underlying the assertion of personal jurisdiction.
It
is not a vehicle for a 'fishing expedition' in hopes that discovery will
sustain the exercise of personal jurisdiction." (citations omitted)).
The
Court is unwilling to grant Plaintiff jurisdictional discovery on a mere
hunch that there may be facts justifying the exercise of personal

jurisdiction;

accordingly,

Plaintiff's request

discovery is DENIED.
10

for limited jurisdictional

4

ORDER ENTERED at Augusta,
OAtU
2017.

Georgia this Q^g^

day

HONe^ftBTE J. RANDAL HALL
UNITED /STATES DISTRICT JUDGE
IN

11

DISTRICT

OF GEORGIA

of