Krier v. Bartram's Equipment Sales & Service, LP et al

Filing 38

MEMORANDUM AND ORDER granting 8 Motion to Dismiss for Lack of Jurisdiction; granting 13 Motion to Dismiss; denying 14 Motion to Dismiss. Signed by District Judge Monti L. Belot on 7/7/2014. (smg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PETER KRIER,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BARTRAM’S EQUIPMENT
SALES & SERVICE, et al.,
Defendant.

CIVIL ACTION
No.

14-1072-MLB

MEMORANDUM AND ORDER
This case comes before the court on the following motions:
1)

Defendants Bernard Krone Holding’s (BKH) and Maschinefabrik

Bernard Krones’ (MBK) amended motion to dismiss for lack of personal
jurisdiction (Doc. 8), plaintiff’s response (Doc. 20) and defendants’
reply (Doc. 24);
2)

Defendant Krone NA’s (Krone) motion to dismiss for lack of

personal jurisdiction (Doc. 13), plaintiff’s response (Doc. 19) and
Krone’s reply (Doc. 26); and
3) Defendants Bartram’s and Krone’s motion to dismiss (Doc. 14),
plaintiff’s response (Doc. 18) and defendants’ reply (Doc. 23).1
I.

Facts and Procedural History
Defendants BKH and MBK are both located in Germany.

holding company for MBK.

BKH is the

BKH and MBK have their principal place of

business in Spelle, Germany, and do not have any offices, agents,
employees or property in Kansas.

MBK manufactures farming equipment.

The

a

subject
1

of

this

suit

is

2010

Krone

Big

M

400

BKH’s and MBK’s motion to join Doc. 14 is granted.

Swather

(Doc. 5).

(“Swather”).

MBK manufactured the Swather and delivered the Swather

to Krone in Texas.
Krone is a distributer for MBK and has its principal place of
business in Tennessee.

Krone delivered the Swather to a dealership

in Oklahoma and it was sold to an unknown party.

Later, the unknown

party sold the Swather to defendant Bartram’s in Texas.
Plaintiff Peter Krier purchased the Swather from Bartram’s Texas
dealership on or about December 8, 2011.

Bartram’s delivered the

Swather to plaintiff’s Kansas residence on or about January 6, 2012.
Approximately

eight

days

later,

plaintiff was operating it.

the

Swather

caught

fire

while

Plaintiff jumped off the Swather and

incurred injuries to his teeth in the fall.
Plaintiff

filed

this

action

against

defendants

alleging

negligence, strict liability, failure to warn, breach of warranty,
negligent misrepresentation and violations of the Kansas Consumer
Protection Act.

Krone and the German defendants move for dismissal

on

that

the

basis

this

court

lacks

personal

jurisdiction.

Additionally, defendants move for dismissal of all but the KCPA claim
on the basis that the claims are barred by the doctrine of economic
loss.
II.

Analysis
A.

Rule 12(b)(2) Motions to Dismiss

BKH, MBK and Krone move to dismiss the amended complaint for lack
of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).

On a

Rule 12(b)(2) motion to dismiss, plaintiff must make a prima facie
showing that the court has personal jurisdiction over defendants. See
Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244,
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1247 (10th Cir. 2000). The court must accept plaintiff's allegations
as true and resolve all factual disputes in its favor notwithstanding
contrary positions by the defendants. Heating and Cooling Master
Marketers Network, Inc. v. Contractor Success Group, Inc., 935 F.Supp.
1167, 1169 (D. Kan. 1996).
“To obtain personal jurisdiction over a nonresident defendant in
a diversity action, a plaintiff must show that jurisdiction is
legitimate under the laws of the forum state and that the exercise of
jurisdiction does not offend the due process clause of the Fourteenth
Amendment.” TH Agriculture & Nutrition, LLC v. Ace European Group,
Ltd., 488 F.3d 1282, 1286-87 (10th Cir. 2007).

Because the Kansas

long-arm statute is construed liberally to allow jurisdiction to the
full extent permitted by due process, the court ordinarily proceeds
directly to the constitutional issue.2

TH Agriculture, 488 F.3d at

1287 (citing OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d
1086, 1087 (10th Cir. 1998)).
“The Due Process Clause protects an individual's liberty interest
in not being subject to the binding judgments of a forum with which
he has established no meaningful ‘contacts ties, or relations.’”
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72 (1985). Therefore
a

“court

may

exercise

personal

jurisdiction

over

a

nonresident

defendant only so long as there exist ‘minimum contacts' between the
defendant

and

the

forum

state.”

2

World–Wide

Volkswagen

Corp.

v.

Plaintiff asserts that defendants’ conduct falls within K.S.A.
60-308(b)(1)(B), tortious acts, and/or section 60-308(b)(1)(G),
products liability. Defendants do not contest the applicability of
the statute but argue that due process does not permit this court to
exercise jurisdiction over defendants.
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Woodson, 444 U.S. 286, 291 (1979).

The requisite minimum contacts may

be established under one of two theories: “specific jurisdiction” or
“general jurisdiction.”
Specific jurisdiction applies when the suit arises out of or
relates to a defendant’s contacts with the forum state. Monge v. RG
Petro-Machinery (Grp.) Co. Ltd., 701 F.3d 598, 613 (10th Cir. 2012).
General

jurisdiction,

by

contrast,

arises

when

a

defendant’s

continuous corporate operations within a state are so substantial and
of such a nature as to justify suit against defendant on causes of
action arising from dealings entirely distinct from those activities.
See Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846,
2854 (2011).

Plaintiff does not specifically identify which theory

he believes applies to defendants.

Plaintiff, however, does not

allege any facts which would support a finding that defendants’
contacts with Kansas are continuous and substantial.

Therefore, the

court will turn to whether defendants’ contacts meet the requirements
of specific jurisdiction.
To satisfy specific jurisdiction, plaintiff’s injuries “must
arise out of or relate to activities that [defendants] purposefully
directed at residents of the forum.”

Monge, 701 F.3d at 617.

Plaintiff contends that this action arises out of defendants’ contacts
with Kansas because defendants placed the Swather in the stream of
commerce.
In Monge, the Tenth Circuit addressed the issue of personal
jurisdiction in a case with very similar facts.

The plaintiff in

Monge brought an action in Oklahoma alleging state law tort and
products liability claims after he suffered injuries on an oil rig
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that was manufactured by the defendant, a Chinese company.
Chinese defendant sold the rig to a company in Kansas.

The

The company

later moved the rig to Oklahoma without the defendant’s knowledge.
The Chinese defendant sought dismissal on the basis that the Oklahoma
court did not have personal jurisdiction. The plaintiff asserted that
jurisdiction was proper under the stream of commerce theory because
the defendant could forsee the product being used in Kansas.

The

Tenth Circuit, however, found that the “rig's presence in the forum
arose from the unilateral acts of someone other than [defendant] and
generally courts have been unwilling to allow states to assert
personal jurisdiction under such circumstances.”
618.

Monge, 701 F.3d at

“[S]pecific jurisdiction must be based on actions by the

defendant and not on events that are the result of unilateral actions
taken by someone else.”

Id. (quoting Bell Helicopter, 385 F.3d at

1296.)
In this case, BKH and MBK shipped the Swather to Krone in Texas.
Krone then shipped the Swather to Oklahoma.
unknown

individual

purchased

Bartram’s dealership in Texas.

the

Swather

After that point, an
and

later

sold

it

to

The undisputed facts show that the

arrival of the Swather in Kansas was not due to any action of BKH, MBK
or Krone.

There are no facts which demonstrate that any of these

defendants had knowledge of the path of the Swather after it was
distributed to a dealer in Oklahoma.
subject

to

personal

jurisdiction

in

BKH, MBK and Krone cannot be
the

state

of

Kansas

when

plaintiff’s injuries did not arise out of their conduct with the forum
state.

Monge, 701 F.3d at 619.

Therefore,

the

motions

to

dismiss

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for

lack

of

personal

jurisdiction are granted.
B.

(Docs. 8, 13).

Economic Loss Doctrine

Bartram’s moves to dismiss all claims, with the exception of the
KCPA claim, on the basis that they are barred by the economic loss
doctrine.

Under the economic loss doctrine, a plaintiff seeking

recovery for economic losses only cannot proceed under theories
sounding in tort.

Professional Lens Plan Inc. v. Polaris Leasing

Corp., 234 Kan. 742, 675 P.2d 887 (1984). “In other words, where
plaintiff has suffered no personal injuries or damage to other
property, a cause of action based upon tort does not exist.”

Rand

Const. Co. v. Dearborn Mid-West Conveyor Co., 944 F. Supp.2d 1042,
1062 (D. Kan. 2013).

In the amended complaint, however, plaintiff

alleged personal injuries which occurred in the accident.

Plaintiff

also has alleged a breach of express warranty claim which likewise
would not be covered by the doctrine.

At this stage of the case, the

existence of either of these claims would appear to prevent dismissal
of the products liability claims but the court will reexamine that
question either in connection with the preparation of the pretrial
order or on a dispositive motion.
Therefore, plaintiff’s complaint is not barred by the economic
loss doctrine.

Bartram’s motion to dismiss is denied.

III. Conclusion
BKH, MBK and Krone NA’s motions to dismiss for lack of personal
jurisdiction are granted. (Docs. 8, 13). Bartram’s motion to dismiss
is denied, without prejudice.

(Doc. 14).

A motion for reconsideration of this order is not encouraged.
Any such motion shall not exceed 3 double-spaced pages and shall
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strictly comply with the standards enunciated by this court in Comeau
v. Rupp, 810 F. Supp. 1172, 1174 (1992).

The response to any motion

for reconsideration shall not exceed 3 double-spaced pages.

No reply

shall be filed.

IT IS SO ORDERED.
Dated this

7th

day of July 2014, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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