Mulo v. Gottlieb
MEMORANDUM OPINION and ORDER Granting re 4 MOTION to Dismiss - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-cv-13476
Judith E. Levy
United States District Judge
Kenneth A. Gottlieb,
Mag. Judge David R. Grand
OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
Before the Court is defendant Kenneth A. Gottlieb’s motion to
dismiss (Dkt. 4) the complaint filed by plaintiff Jorgji Mulo, who alleges
defendant was negligent in driving his motor vehicle, thereby causing
plaintiff to sustain severe injuries.
For the reasons set forth below, defendant’s motion is granted.
On November 19, 2015, plaintiff, a resident of Sterling Heights,
Michigan, was driving his truck east on SR 613 in Allen Township,
Hancock County, Ohio. (Dkt. 1 at 2.) That same day, defendant, a
resident of Monroe, Ohio, was driving his Toyota Corolla on TR 232 in
Allen Township, Hancock County, Ohio. (Id.)
At the intersection of SR 613 and TR 232, defendant allegedly failed
to stop at a stop sign and collided with plaintiff’s truck. (Dkt. 1 at 2.)
After the incident, plaintiff filed this complaint, alleging defendant
was negligent in failing to operate his motor vehicle with due care and
driving through a stop sign without stopping or giving warning to other
drivers. (Dkt. 1 at 2–3.) As a result of defendant’s alleged negligence,
plaintiff sustained serious physical injuries, disfigurement, emotional
distress and anxiety, and loss of earnings and earnings capacity. (Id. at
Defendant filed a motion to dismiss, arguing the Court lacks
personal jurisdiction over defendant, is the improper venue, and is forum
non conveniens. (See generally Dkt. 4.)
Under Fed. R. Civ. P. 12(b)(2), “the party seeking to establish the
existence of personal jurisdiction bears the burden to establish such
jurisdiction.” Beydoun v. Wataniya Restaurants Holding, Q.S.C., 768
F.3d 499, 504 (6th Cir. 2014). “To defeat [a motion to dismiss for lack of
personal jurisdiction, a plaintiff] need only make a prima facie showing
But when a motion to dismiss has been filed,
“plaintiff may not stand on his pleadings but must, by affidavit or
otherwise, set forth specific facts showing that the court has jurisdiction.”
Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). And when
a motion to dismiss for lack of personal jurisdiction is filed but no
evidentiary hearing is held, “the court must consider the pleadings and
affidavits in a light most favorable to the [nonmoving party—here,
plaintiffs].” Id. (brackets in original).
Defendant argues the Court lacks personal jurisdiction, is the
improper venue, and that this Court is forum non conveniens. (Dkt. 4.)
Defendant argues the Court lacks personal jurisdiction because
defendant is a resident of Monroe, Ohio; the accident leading to this
lawsuit occurred in Ohio; he was served with process in Ohio; he did not
consent to the Court’s jurisdiction; and he has no other contacts with the
State of Michigan. (Dkt. 4 at 8.) Plaintiff argues his injuries were treated
in Michigan and his doctors are located in Michigan, which is sufficient
to establish personal jurisdiction. Plaintiff also argues defendant should
consent to jurisdiction because the main issue for trial will be the extent
of his injuries. (Dkt. 6 at 2; Dkt. 6-1 at 2.)
In a diversity case, a federal court may exercise personal
jurisdiction over a party if “(1) authorized by the law of the state in which
it sits, and (2) in accordance with the Due Process Clause of the
Fourteenth Amendment.” Beydoun, 768 F.3d at 504.
jurisdiction over individuals if there exist “any of the following
relationships between an individual and the state”: (1) presence in the
state at the time when process is served; (2) domicile in the state at the
time when process is served; or (3) consent. MICH. COMP. LAWS § 600.701.
Courts may exercise limited personal jurisdiction if the judgment
“aris[es] out of an act which creates any of the following relationship:
(1) The transaction of any business within the
(2) The doing or causing an act to be done, or
consequences to occur, in the state resulting in an
action for tort.
(3) The ownership, use, or possession of real or
tangible personal property situated within the
(4) Contracting to insure a person, property, or
risk located within this state at the time of
(5) Entering into a contract for services to be
rendered or for materials to be furnished in the
state by the defendant.
(6) Acting as a director, manager, trustee, or other
officer of a corporation incorporated under the
laws of, or having its principal place of business
within this state.
(7) Maintaining a domicile in this state while
subject to a marital or family relationship which is
the basis of the claim for divorce, alimony,
separate maintenance, property settlement, child
support, or child custody.
MICH. COMP. LAWS § 600.705.
In this case, defendant has claimed that he is not a resident of
Michigan, is not domiciled in Michigan, and has not consented to
jurisdiction. Plaintiff has not rebutted these claims. Thus, the Court
lacks general personal jurisdiction over defendant.
The only evidence plaintiff submits in support of the Court
exercising personal jurisdiction over defendant is that his doctors are
located in and his medical treatment occurred in Michigan.
plaintiff is effectively attempting to establish limited personal
jurisdiction pursuant to the portion of the long-arm statute that provides
for jurisdiction when “[t]he doing or causing an act [is] done, or
consequences  occur, in the state resulting in an action for tort.” MICH.
COMP. LAWS § 600.705(2). But plaintiff’s argument has been uniformly
rejected by the courts:
“Where, as in the case before [the Court], the
action arises from conduct of the non-resident that
physically injures the plaintiff outside the forum,
the typical claim has been that the non-residential
defendant has caused consequences in the forum
in the form of the injury itself and related medical
treatment and expenses. The Michigan courts and
the federal district courts have uniformly rejected
Alomari v. Overseas Ship Holding Grp., Inc., Case No. 11-cv-12300, 2011
WL 5553787, at *4 (E.D. Mich. Nov. 15, 2011) (quoting Theunissen v.
Matthews, 935 F.2d 1454, 1460 (6th Cir. 1991)).
This line of cases interprets “consequence” to be “the tort claim
itself and it must arise within Michigan as a result of the defendant’s
extra-territorial action.” Theunissen, 935 F.2d at 1460. In other words,
“where the injury occurs outside the state, the cause of action—the
consequence—does also.” Id.
Here, plaintiff does not dispute that his injuries occurred in Ohio,
where the collision occurred. And plaintiff offers no other information to
indicate defendant has any other contacts with the State of Michigan.
Plaintiff’s claim that defendant should consent to jurisdiction does not
give this Court personal jurisdiction over defendant because the Court
cannot force a defendant to consent. Thus, plaintiff has failed to establish
a prima facie case for limited personal jurisdiction over defendant.
Accordingly, defendant’ motion to dismiss for lack of personal jurisdiction
Because the Court lacks personal jurisdiction over defendant, the
Court need not address defendant’s remaining claims.
For the reasons set forth above, defendant’s motion to dismiss (Dkt.
4) is GRANTED.
IT IS SO ORDERED.
Dated: March 27, 2017
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 27, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
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