Garrett v. Prime Transport Inc et al
Filing
46
OPINION AND ORDER granting 15 Motion to Dismiss; granting 17 Motion to Dismiss. Defendants Dalbo Holldings Inc, Dalbo Inc, and Kyle Story are dismissed.. Signed by Judge Robert L Miller, Jr on 7/5/11. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JULIE E. GARRETT,
Plaintiff
vs.
PRIME TRANSPORT, INC.,
DALBO HOLDINGS, INC.,
DALBO, INC., and KYLE STORY,
Defendants
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Case No. 3:10-CV-297 RM
OPINION AND ORDER
This case represents the plaintiff Julie Garrett’s fourth attempt to bring an
action against the defendants to recover damages for personal injuries sustained
in a vehicular accident in Texas in January 2007. Ms. Garrett filed similiar suits
in the Western District of Oklahoma, the Northern District of Texas, and the
Eastern District of Arkansas. Each of those suits was dismissed. See Garrett v.
Prime Transport, Inc., No. 5:08-CV-1138-R, slip op (W.D. Okl. July 23, 2009);
Garrett v. Prime Transport, Inc., 2010 WL 1929616 (N.D. Tex. May 11, 2010);
Garrett v. Prime Transport, Inc., 2011 WL 1627956 (E.D. Ark. Apri 29, 2011).
Dalbo Holdings, Inc.’s, Dalbo, Inc.’s, and Kyle Story’s motions to dismiss the
present action under Fed. R. Civ. P. 12(b)(2), (3) and (6) pend before the court.1
For the following reasons, the court grants the motions.
I. BACKGROUND
On January 15, 2007, Julie Garrett, an Oklahoma citizen, was involved in
a vehicular accident in Fort Worth, Texas, with a semi tractor-trailer driven by
Kyle Story, an Arkansas resident. Ms. Garrett filed suit in the Western District of
Oklahoma against Mr. Story, Prime Transport, Inc. (an Indiana corporation and
the alleged owner of the semi-tractor), Dalbo, Inc. (a Utah corporation, the alleged
owner of the trailer, and a “wholly owned subsidiary of Dalbo Holdings, Inc.”), and
Dalbo Holdings, Inc. (a Delaware corporation with its principal place of business
in Utah), seeking damages for the personal injuries she sustained as a result of
that accident. The Oklahoma district court dismissed Ms. Garrett’s claims against
Prime Transport and Mr. Story without prejudice for lack of personal jurisdiction
on July 23, 2009, Garrett v. Prime Transport, Inc., No. 5:08-CV-1138-R, Order at
10-13 (W.D. Okl. July 23, 2009), and Dalbo Holdings, Inc. and Dalbo, Inc. were
voluntarily dismissed without prejudice three months later. Garrett v. Prime
Transport, Inc., No. 5:08-CV-1138-R, Order Nunc Pro Tunc at 3 (W.D. Okl. Oct.
29, 2009).
1
Although the Dalbo defendants’ motion is captioned as one under Fed. R. Civ.
P. 12(b)(1) (and, alternatively, under 12(b)(6)), it actually challenges personal
jurisdiction and venue, not subject matter jurisdiction, which is premised on diversity
of citizenship. The court treats their motion as one under Fed. R. Civ. P. 12(b)(2), (3)
and (6).
2
Ms. Garrett filed her second suit against the defendants in the Northern
District of Texas on February 22, 2010, seeking damages for personal injuries
resulting from the January 2007 collision. The Texas district court found that
Texas’ two-year statute of limitations barred Ms. Garrett’s claims, and dismissed
the complaint against Prime Transport, Dalbo Holdings, and Dalbo, Inc. under
Fed. R. Civ. P. 12(b)(6).2 Garrett v. Prime Transport, Inc., 2010 WL 1929616 (N.D.
Tex. May 11, 2010).
On July 22, 2010, Ms. Garrett filed suit against the defendants in both the
Eastern District of Arkansas and the Northern District of Indiana. The Arkansas
district court found that it had no personal jurisdiction over Prime Transport,
Dalbo Holdings, and Dalbo, Inc., and that Ms. Garrett hadn’t complied with Fed.
R. Civ. P. 4(l) and (m) with respect to service of process on all of the defendants,
including Mr. Story, and dismissed the action without prejudice under Fed. R. Civ.
P. 12(b)(2) and (5). Garrett v. Prime Transport, Inc., 2011 WL 1627956 (E.D. Ark.
Apr. 29, 2011).
Dalbo Holdings and Dalbo, Inc. have moved to dismiss the current action
for lack of personal jurisdiction, improper venue, and failure to state a timely
claim. Mr. Story’s motion to dismiss for lack of personal jurisdiction and
insufficient service of process also pends.
2
The court noted that it hadn’t received proof of service of process on Mr. Story,
and that he hadn’t answered the amended complaint or otherwise appeared in the
action, see Garrett v. Prime Transport, Inc., No. 4:10cv122-A, Memorandum Opinion
and Order at 3 n.2 (N.D. Texas May 11, 2010), but there’s no indication in the record
if, or when, the Texas complaint was dismissed as to him.
3
II. DISCUSSION
A. Personal Jurisdiction
When a motion to dismiss in filed under Fed. R. Civ. P. 12(b)(2), the burden
is on the plaintiff, as the party seeking to invoke federal jurisdiction, to establish
the existence of personal jurisdiction. Purdue Research Foundation v. SanofiSynthelabo, S.A., 338 F.3d 773, 782 and n. 11 (7th Cir. 2003); RAR, Inc. v. Turner
Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997). The court can allow the parties
to submit affidavits relating to the motion to dismiss and weigh those affidavits in
deciding whether it has personal jurisdiction. See Weidner Communications, Inc.
v. H.R.H. Prince Bandar Al Faisal, 859 F.2d 1302, 1306 n.7 (7th Cir. 1988);
Nelson by Carson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir. 1983).
It also can take judicial notice of matters of public record, including the opinions
and orders issued by the district courts in Oklahoma, Texas, and Arkansas.
United States v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991). When the court’s
decision is based on the submission of written materials, without an evidentiary
hearing, “the [plaintiff’s] burden of poof is met by a prima facie showing that
personal jurisdiction is conferred under the relevant jurisdictional statute . . .
[and] the party asserting jurisdiction is entitled to the resolution in its favor of all
disputes concerning relevant facts presented in the record.” Nelson by Carson v.
Park Industries, Inc., 717 F.2d at 1123; see also Purdue Research Foundation v.
Sanofi-Synthelabo, S.A., 338 F.3d at 782; Hyatt Int’l Corp. v. Coco, 302 F.3d 707,
713 (7th Cir. 2002).
4
A federal court can exercise personal jurisdiction over a defendant in a
diversity case only if a court of the state in which it sits would have such
jurisdiction. Citadel Group Ltd. v. Washington Regional Medical Center, 536 F.3d
757, 760 (7th Cir. 2008). “The Due Process Clause of the Fourteenth Amendment
sets the outer boundaries of a state tribunal’s authority to proceed against a
defendant,” Goodyear Dunlop Tires Operations, S.A. v. Brown,
S.Ct.
, 2011
WL 2518815 at *6 (U.S. June 27, 2011), and requires that an out-of-state
defendant have “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,’” before a court can exercise personal jurisdiction over the
defendant. International Shoe Co. v. Washington, 326 U.S. 310, 316 (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Indiana’s long-arm statute, Indiana
Trial Rule 4.4(A), identifies eight acts that serve as a basis for personal
jurisdiction, and provides that “a court of this state may exercise jurisdiction on
any basis not inconsistent with the Constitutions of this state or the United
States,” thus merging the two inquiries. See Int’l Medical Group, Inc. v. American
Arbitration Assn., Inc., 312 F.3d 833, 846 (7th Cir. 2003); Anthem Ins. Cos., Inc.
v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1232 (Ind. 2000).
Personal jurisdiction can be specific or general. The court has specific
personal jurisdiction when the defendant’s contacts with the forum state relate to
the subject matter of the lawsuit. Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414 (1984); Anthem Ins. Cos., Inc. v. Tenet Healthcare Corp.,
5
730 N.E.2d at 1234. The inquiry in such cases is whether there was “some act by
which the defendant purposefully avail[ed] itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its
laws.” Goodyear Dunlop Tires Operations, S.A. v. Brown,
S.Ct.
, 2011 WL
2518815 at *6 (U.S. June 27, 2011) (quoting Hanson v. Denckla, 357 U.S. 235,
253 (1958)). “The ultimate constitutional standard for the exercise of specific
jurisdiction has been the same since the Supreme Court first abandoned strict
territorial jurisdiction: is it fair and reasonable to call the defendant into the
state’s courts to answer the plaintiff’s claim?” uBID, Inc. v. GoDaddy Group, Inc.,
623 F.3d 421, 426 (7th Cir. 2010); see Burger King Corp v. Rudzewicz, 471 U.S.
462, 474 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980); International Shoe Co. v. Washington, 326 U.S. 310, 317 (1945).
When the cause of action isn’t related to the defendant’s activities in the
forum state, the court may exercise general jurisdiction if the nonresident has had
“continuous and systematic” contact with the state. Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. at 414-415; Int’l Medical Group, Inc. v. American
Arbitration Assn., Inc., 312 F.3d at 846. “[T]he constitutional requirement for
general jurisdiction is ‘considerably more stringent’ than that required for specific
jurisdiction.” Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d
at 787 (quoting United States v. Swiss American Bank, Ltd., 274 F.3d 610, 618
(1st Cir. 2001)). “[The] contacts must be so extensive to be tantamount to [the
defendant] being constructively present in the state to such a degree that it would
6
be fundamentally fair to require it to answer in an Indiana court in any litigation
arising out of any transaction or occurrence taking place anywhere in the world.”
Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d at 787
(emphasis in original); see also, uBID, Inc. v. GoDaddy Group, Inc., 623 F.3d at
426; Tamburo v. Dworkin, 601 F.3d 693, 701 (7th Cir. 2010).
The complaint alleges:
2. That Defendant, Kyle Story, while a citizen and resident of
the State of Arkansas, had voluntarily entered into an employment
contract with an Indiana corporation, and was on the date of the
subject incident acting as an agent, employee, and/or servant of
Defendant, Prime Transport, Inc., thereby purposefully availing
himself of the laws of the State of Indiana, and therefore this Court
has jurisdiction and venue over the Defendant, Kyle Story.
4. . . . That the Defendant, DALBO, conducts or has conducted
business in the State of Indiana and throughout the State of Indiana
at relevant times thus giving this Court jurisdiction and venue over
the Defendant, Dalbo.3
The Dalbo defendants say they lack the minimum contacts with Indiana
necessary to support specific or general personal jurisdiction, citing Int’l Medical
Group, Inc. v. American Arbitration Assn., Inc., 312 F.3d 833 (7th Cir. 2002), and
that venue in the Northern District of Indiana is therefore improper under 28
U.S.C. § 1391. In support of their motion, Dalbo submitted the affidavit of Tony
George, the President of Dalbo, Inc., in which Mr. George attests that:
3
Ms. Garrett refers to Dalbo Holdings, Inc. and Dalbo, Inc. collectively as
“Dalbo” in her complaint and response brief, but asserts no facts that would warrant
exercising personal jurisdiction over one corporate entity based on the other’s
activities. The defendants didn’t object or seek dismissal on that basis, however, so the
court, too, will refer to them as Dalbo.
7
(1) Dalbo, Inc. is incorporated under the state laws of Utah with its
principal place of business in Vernal, Utah;
(2) Dalbo Holdings, Inc. is incorporated under the state laws of
Delaware with its principal place of business in Vernal, Utah;
(3) Neither Dalbo Holdings nor Dalbo, Inc. is licensed to do business,
own any real estate, maintain any offices, sell any good, or transact any
business in Indiana;
(4) Dalbo, Inc. bought tanker [trailers] from Dragon Products, Inc.,
out of Beaumont, Texas, which were manufactured in Indiana by Dragon
Products;
(5) The purchase of those tankers was negotiated in Texas and Utah;
(6) Neither Dalbo Holdings nor Dalbo, Inc. entered into any agreement
with Prime Transport for the transportation of the trailer involved in the
January 15, 2007 collision; and
(7) The purchase of the subject trailer from Dragon Products was
never completed because the trailer was never delivered to Dalbo, Inc. [Doc.
No. 16-5].
Ms. Garrett doesn’t dispute the facts asserted in Mr. George’s affidavit, and
indeed submitted his affidavit and an excerpt from his January 14, 2011
deposition in opposition to the motion to dismiss [Doc. Nos. 40-1 and 40-2].4 Ms.
4
Ms. Garrett also submitted copies of documents from the Oklahoma case,
including her response to a summary judgment motion filed by Prime Transport and
8
Garrett maintains that Mr. George’s affidavit and deposition testimony prove that
Dalbo was in the business of renting equipment to the oil and gas industry, that
it “regularly procure[d]” tanker-trailers manufactured in Indiana for use in its
business, and that the incident giving rise to this action involved the
transportation of one of those tanker-trailers. Ms. Garrett concludes that the
Dalbo defendants’ business activities are related to the underlying action and that
the court therefore has specific personal jurisdiction over Dalbo. Citing, i.e., North
Texas Steel Co., Inc. v. R.R. Donnelley & Sons Co., 679 N.E.2d 513 (Ind. App.
1997). The court disagrees.
North Texas Steel is factually and legally distinguishable. In that case, the
appellate court held that a Texas manufacturer was subject to suit in Indiana for
damages sustained in Indiana when the product it manufactured (a storage rack
system) collapsed. North Texas Steel Co., Inc. v. R.R. Donnelley & Sons Co., 679
N.E.2d at 519. The exercise of personal jurisdiction over North Texas Steel in
Indiana was consistent with federal due process concerns because North Texas
Steel specifically manufactured the rack system for a corporation located in
Indiana, shipped that system to Indiana with knowledge that it was for use by the
plaintiff in Indiana, and had other customers in Indiana, and thus “purposely
Kyle Story [Doc. No. 40-3], the court’s July 23, 2009 order dismissing Prime Transport
and Mr. Story for lack of personal jurisdiction [Doc. No. 40-4], and the October 29,
2009 nunc pro tunc order granting Ms. Garrett’s request to dismiss her claims against
Dalbo Holdings, Inc. and Dalbo, Inc., without prejudice [Doc. No. 40-5]. While the
court can, and does, take judicial notice, of matters of public record, United States v.
Wood, 925 F.2d 1580, 1582 (7th Cir. 1991), only the later (the nunc pro tunc order)
relates to the Dalbo defendants’ motion to dismiss on statute of limitations grounds.
9
availed itself of the privilege of conducting business in Indiana.” Id. at 519-520.
The result is consistent with Indiana Trial Rule 4.4(A)(3), which provides that:
Any person or organization that is a nonresident of this
state...submits to the jurisdiction of the courts of this state as to any
action arising from the following acts committed by him or her or his
or her agent: ...(3) causing personal injury or property damage in this
state by an occurrence, act or omission done outside this state if [it]
regularly does or solicits business or engages in any other persistent
course of conduct, or derives substantial revenue or benefit from
goods, materials, or services used, consumed, or rendered in this
state....
See also Goodyear Dunlop Tires Operations, S.A. v. Brown,
S.Ct.
, 2011 WL
2518815 at *8 (U.S. June 27, 2011) (“Many States have enacted long-arm statutes
authorizing
courts
to
exercise
specific
jurisdiction
over
[non-resident]
manufactures when the events in suit, or some of them, occurred within the
forum state”); J. McIntyre Machinery, Ltd. V. Nicastro,
S.Ct.
, 2011 WL
2518811 at *6 (June 27, 2011) (“The defendant’s transmission of goods permits
the exercise of jurisdiction only where the defendant can be said to have targeted
the forum . . .”). Dalbo didn’t manufacture the trailer involved in Ms. Garrett’s
suit, and Dalbo’s actions didn’t cause personal injury or property damage in
Indiana. Mr. George’s affidavit and deposition testimony prove only that Dalbo
purchased trailers from a Texas company that were manufactured in Indiana,
nothing more. “The fact that the commodity causing the plaintiff’s injuries had
some independent contact with the forum state is a mere coincidence that does
not affect the defendant’s contacts with the forum.” Simpson v. Quality Oil Co.,
Inc., 723 F.Supp. at 389-390. There is nothing in this record to support a finding
10
that Dalbo had any business contacts with Indiana, or a finding of a substantive
connection between the underlying litigation, Dalbo, and the State of Indiana, or
any basis for exercising specific personal jurisdiction over Dalbo Holdings and
Dalbo, Inc..
Mr. Story’s motion to dismiss also challenges the court’s personal
jurisdiction, as well as the sufficiency of service of process. Mr. Story doesn’t
dispute that he had a contract with Prime Transport (an agreement to lease his
semi-tractor to Prime) at the time of the accident, but contends that the contract
alone doesn’t satisfy the minimum contacts requirement for specific or general
personal jurisdiction in a personal injury action that arose out of an accident in
Texas, citing Burger King Corp. v. Rudzewicz, 471 U.S. at 478; Citadel Group Ltd.
v. Washington Regional Medical Center, 536 F.3d at 761.
Ms. Garrett concedes that Mr. Story’s contract with Prime Transport might
not establish the requisite minimum contacts for personal jurisdiction in and of
itself, see Burger King Corp. v. Rudzewicz, 471 U.S. at 475, but maintains that
Mr. Story not only executed the employment contract in Indiana, but routinely
called Indiana to get his work orders, received his paychecks from Indiana,
mailed work-related documents to Indiana, and registered his semi-tractor here.
Ms. Garrett argues that Mr. Story’s continuing business contacts and relationship
with Prime Transport made it reasonably foreseeable that he would be subject to
suit here, as evidenced by his March 25, 2011 deposition testimony [Doc. No. 411]. Citing Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 716 (7th Cir. 2002)(“‘[P]rior
11
negotiations and contemplated future consequences, along with the terms of the
contract and the parties’ actual course of dealing’ may indicate the purposeful
availment that makes litigating in the forum state foreseeable to the defendant.”).
The court must again disagree.
Hyatt Int’l was a contract case, not a personal injury case.
Personal jurisdiction in breach of contract actions often turns on
whether the defendant ‘purposefully availed’ himself of the privilege
of conducting business or engaging in a transaction in the forum
state. But where, as here, the plaintiff’s claims are for intentional
torts, the inquiry focuses on whether the conduct underlying the
claims was purposely directed at the forum state.
Tamburo v. Dworkin, 601 F.3d at 702 (internal citations omitted). Mr. Story’s
contract with Prime Transport and the incidental contacts related to that contract
(the phone calls, mailings, and tag registration) might or might not have subjected
him to suit in Indiana for breach of contract, but they aren’t relevant or related
to the personal injury claims in this case.5 See Simpson v. Quality Oil Co., Inc.,
723 F.Supp. 382, 389 (S.D. Ind. 1989) (“a defendant’s contacts with the forum will
usually have no substantive relevance to a cause of action based on tortious
negligence when the tort is committed outside of the forum”); Ellenstein v. S. & S.
Game Preserve, Inc., 581 F.Supp. 81, 83 (S.D. Ind. 1983) (“insufficient nexus
between the jurisdictional facts and the matter in dispute” where cause of action
5
Whether Mr. Story’s agreement with Prime Transport contained a choice of law
provision is unknown (the agreement wasn’t produced), and irrelevant. “[C]hoice of law
provisions may be some indication that a defendant purposefully availed itself of the
protection of the laws of a particular jurisdiction,” in a breach of contract action,
Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d 773, (7th Cir.
2003)(citing Burger King, 471 U.S. at 482), but this isn’t a breach of contract suit.
12
didn’t arise out of defendant’s contacts with forum state, but arose out of the
alleged negligence of one of defendant’s agents/employees in operating a motor
vehicle in another state); Oddi v. Mariner-Denver, Inc., 461 F.Supp. 306, 309 (S.D.
Ind. 1978) (“if plaintiff’s injury does not arise out of an act done in the forum state,
then other contacts between the [defendant] and the state must be fairly extensive
before burden of defending a suit there may be imposed upon it without offending
traditional notions of fair play and substantial justice”). Compare Calder v. Jones,
465 U.S. 783, 789-790 (1984) (individual defendants committed an intentional
tort outside the forum state, but expressly aimed their misconduct at the forum
state).
The complaint and the affidavits and depositions submitted in support of
and opposition to the motion to dismiss make clear that Ms. Garrett’s injuries
didn’t arise out of, and were not caused by, any conduct on the part of the Dalbo
defendants or Mr. Story that occurred in Indiana.6
6
The complaint alleges:
9. That the Plaintiff, Julie E. Garrett’s, resulting bodily injuries
and damages are a direct and proximate result of the acts, conduct
and/or omissions of the Defendants (PRIME, STORY and/or DALBO or
their respective agents, servants, and/or employees)....in one or more of
the following particulars:
a.
Operation of a motor vehicle without devoting full time and
attention to the operation of a motor vehicle’
b.
Failure to use the steering or braking mechanisms on a
motor vehicle so as to avoid the subject collision;
c.
Failure to operate a vehicle in a safe and prudent manner to
accommodate the flow of travel on said roadway;
d.
Operating said vehicle a[t] an unsafe rate of speed, or
traveling at a rate of speed that was unsafe for road
conditions prsent at the time of the subject collision;
13
Absent specific jurisdiction, the court must decide whether the defendants’
contacts with the State of Indiana were “so extensive to be tantamount to [the
defendants] being constructively present in the state to such a degree that it
would be fundamentally fair to require it to answer in an Indiana court in any
litigation arising out of any transaction or occurrence taking place anywhere in
the world.” Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d at
787 (emphasis in original). Neither Dalbos’ nor Mr. Story’s contacts with the State
of Indiana meet those requirements.
Nothing in this record suggests that the Dalbo defendants ever conducted
any business in Indiana, much less the “continuous and systematic” contact
required for general personal jurisdiction.
Mr. Story came to Indiana only once to execute the leasing agreement with
Prime Transport. His only other physical contact with Indiana has been
occasionally driving through the state. That he called Prime Transport for work
orders on a weekly basis, and received his paycheck from, and mailed paperwork
to, Prime Transport’s Indiana office is merely incidental to his contract with Prime,
and doesn’t establish the continuous and systematic contacts necessary to
e.
f.
g.
h.
Failure to allow sufficient space between Plaintiff’ vehicle
and Defendant’s vehicle to make a proper and safe lane
change;
Improper and/or unsafe lane change; and/or
Reckless disregard for the rights of others traveling on public
roadways;
Failure to recognize and use the proper, heightened standard of
care required for the operation/transport of a specialized piece of
hazardous oil-field equipment on the public roadway.
14
exercise general personal jurisdiction in this case. See Calder v. Jones, 465 U.S.
783 (1984) (“an employee’s contacts with the forum are not to be judged according
to his employer’s contacts”); Citadel Group Ltd. v. Washington Regional Medical
Center, 536 F.3d at 761 (merely fortuitous or attenuated contacts will not suffice);
Subacz v. Town Tower Motel Corp., 567 F.Supp. 1308, 1313 (N.D. Ind. 1983)
(“something more than placing phone calls or sending mailings into a state is
required before one may be compelled to defend oneself there, particularly when
the cause of action does not arise from those activities”). That Mr. Story, as part
of his job, might drive into Indiana occasionally is far too attenuated a contact to
subject him to a personal injury suit in Indiana for an accident that occurred in
Texas. See Obermeyer v. Gilliland, 873 F.Supp. 153, 158 (C.D. Ill. 1995); Simpson
v. Quality Oil Co., 723 F.Supp. 382, 390 (S.D. Ind. 1989).
The burden of proof is on the plaintiff, as the party invoking federal
jurisdiction, to establish the existence of personal jurisdiction over the defendants.
Ms. Garrett hasn’t met that burden. This is a personal injury case arising out of
an accident that occurred in Texas and involved citizens of Oklahoma and
Arkansas. It’s neither fair nor reasonable to call the Dalbo defendants or Mr. Story
into court in Indiana to answer a lawsuit for injuries sustained as a result of that
accident. Absent personal jurisdiction, venue in the Northern District of Indiana
15
is improper under 28 U.S.C. 1391.Dismissal is therefore appropriate under Fed.
R. Civ. P. 12(b)(2) and (3).7
B. Statute of Limitations
The Dalbo defendants contends that Ms. Garrett’s claims against them are
time-barred under Indiana’s two year statute of limitations, and should be
dismissed under Fed. R. Civ. P. 12(b)(6).
Ms. Garrett argues (as she did in the Texas case) that the dismissal of the
Dalbo defendants in the Oklahoma case was effectively a dismissal on the merits
for lack of personal jurisdiction “in accord with the decision of the [Oklahoma]
Court on the adversarial hearing on jurisdiction,” and that Indiana’s Journey’s
Account Statute, IND. CODE § 34-11-8-1 “[saves] an action filed in the wrong court
by allowing the plaintiff enough time to refile the same claim in the correct forum,”
even after the statute of limitations has run. Citing Basham v. Penick, 849 N.E.2d
706, 710 (Ind. App. 2006).
IND. CODE § 34-11-8-1 provides in relevant part:
(a) This section applies if a plaintiff commences an action and:
7
Mr. Story also contends that “the process issued and served on [him] was
defective.” Citing McNeely v. Clayton and Lambert Mfg., 292 F.Supp. 232, 235 (D.
Minn. 1968) (effective service of process is conditioned on the validity of the court’s
assertion of personal jurisdiction over the defendant). Ms. Garrett didn’t respond to
Mr. Story’s sufficiency of service argument, and hasn’t filed proof of service, as
required under Fed. R. Civ. P. 4(l). Accordingly, dismissal without prejudice also would
seem to be appropriate as to Mr. Story under Fed. R. Civ. P. 4(m).
16
(1) the plaintiff fails in the action from any cause except
negligence in the prosecution of the action; . . .
(b) If subsection (a) applies, a new action may be brought not later
than the later of:
(1) three (3) years after the date of the determination
under subsection (a); or
(2) the last date an action could have been commenced
under the statute of limitations governing the original
action;
and be considered a continuation of the original action commenced
by the plaintiff.
The Journey’s Account Statute allows continuation of actions through
refiling when a plaintiff fails to obtain a decision on the merits for some reason
other than plaintiff’s own neglect and the statute of limitations expires while the
suit is pending, but it doesn’t save an action from being time barred when the
original action was voluntarily dismissed at the plaintiff’s request for the purpose
of permitting a refiling in another court. Price v. Wyeth Holdings Corp., 505 F.3d
624 (Ind. 2007); Al-Challah v. Barger Packaging, 820 N.E.2d 670 (Ind. App. 2005);
Kohlman v. Finkelstein, 509 N.E.2d 228 (Ind. App. 1987) (properly initiated action
that is voluntarily dismissed is not deemed a “failure” withing meaning of the
Indiana Journey’s Account Statute); Hollins v. Yellow Freight System, Inc., 590
F.Supp. 1023 (N.D. Ill. 1984) (under Indiana law voluntary dismissal leaves
parties as if suit had never been brought, so pendency of such a suit doesn’t toll
statute of limitations); Ferdinand Furniture Co., Inc. v. Anderson, 399 N.E.2d 799
(Ind. App. 1980).
Basham v. Penick, 849 N.E.2d 706 (Ind. App. 2006), the only authority Ms.
Garrett cites in support of her argument, doesn’t hold otherwise. In Basham, a
17
Kentucky motorist brought suit against an Indiana driver in Kentucky for injuries
arising from a car accident in Indiana. The Kentucky suit was dismissed for lack
of jurisdiction, and the Kentucky motorist refiled in Indiana after the two-year
statute of limitations had run. The trial court granted the defendant’s motion for
judgment on the pleadings on limitations grounds, but the appellate court
reversed, holding that Indiana’s Journey’s Account Statute applied and saved the
Kentucky motorist’s suit because the original action was dismissed for lack of
jurisdiction. Basham v. Penick, 849 N.E.2d at 709-713.
Ms. Garrett would have the court “make believe” (as the Texas court put it)
that the voluntary dismissal of her claims against the Dalbo defendants in the
Oklahoma case actually was a dismissal for lack of personal jurisdiction. It was
not. Prime Transport was dismissed for lack of personal jurisdiction on July 23,
2009, but Ms. Garrett voluntarily dismissed her claims against the Dalbo
defendants, as shown by the Oklahoma court’s October 29, 2009 order, leaving
those parties in the same position as if suit had never been brought, and
precluding application of Indiana’s savings clause as a basis for tolling the statute
of limitations. See Hollins v. Yellow Freight System, Inc., 590 F.Supp. at 1027;
Board of Commisoners of Cass County v. Nevitt, 448 N.E.2d 333, 339 n.5 (Ind.
App. 1983); Burnett v. Camden, 254 N.E.2d 199, 357-358 (Ind. 1970). The
Journey’s Account Statute is inapplicable, and Ms. Garrett has asserted no other
grounds for tolling Indiana’s two-year statute of limitations. Ms. Garrett’s claims
18
against the Dalbo defendants would be time barred under IND. CODE § 34-11-2-4,
even if the court had personal jurisdiction.
IV. CONCLUSION
For the foregoing reasons, the court GRANTS the motions to dismiss
defendants Dalbo Holdings, Inc., Dalbo, Inc., and Kyle Story [Doc. Nos. 15 and
17].
SO ORDERED.
ENTERED:
July 5, 2011
/s/ Robert L. Miller, Jr.
Judge
United States District Court
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