Kedrowski v. Lycoming Engines et al

Filing 63

ORDER denying 30 Motion to Strike Pleading ; denying 35 Motion for Sanctions; granting 40 Motion to Alter/Amend/Supplement Pleadings; denying 52 Motion to Strike Pleading ; denying 57 Motion for Sanctions; granting 5 Motion to Dismiss/General; granting 17 Motion to Dismiss/General; granting 17 Motion to Dismiss for Lack of Jurisdiction (Written Opinion). Signed by Senior Judge David S. Doty on 5/8/2015. (TCKB)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 15-19(DSD/LIB)
Mark Kedrowski,
Plaintiff.
ORDER

v.
Lycoming Engines, a division
of AVCO Corporation, Aero
Associates, Inc., Timothy H.
Henderson, John Doe, and
Jane Doe,
Defendants.

Stephen P. Watters, Esq. and Watters Law Office, 5101
Thimsen Avenue, Suite 200, Minnetonka, MN 55345; Cortney
S. LeNeave, Esq. and Hunegs, LeNeave & Kvas, 1000 Twelve
Oaks Center Drive, #101, Wayzata, MN 55391, counsel for
plaintiff.
William L. Moran, Esq. and HKM Law Group, 30 East 7th
Street, Suite 3200, St. Paul, MN 55101; Elizabeth D.
Scott, Esq. and Williams Mullen, 301 Fayetteville Street
Mall, Suite 1700, Raleigh, NC 27601 and Karla M. Vehrs,
Esq. and Lindquist & Vennum, 4200 IDS Center, 80 South
Eighth Street, Minneapolis, MN 55402, counsel for
defendants.

This matter is before the court upon the motion to amend the
complaint by plaintiff Mark Kedrowski, and the motions to dismiss
and for sanctions by defendants Lycoming Engines, a division of
AVCO Corporation (Lycoming); Aero Accessories, Inc. (Aero); and
Timothy H. Henderson.

Based on a review of the file, record, and

proceedings herein, and for the following reasons, the court grants
the motion to amend, grants the motions to dismiss, and denies the
motions for sanctions.

BACKGROUND
This dispute arises out of a December 16, 2014, letter sent to
Mark Seader, an airplane mechanic who is scheduled to testify on
behalf of Kedrowski in a personal injury action in state court.
Kedrowski was piloting a recreational aircraft on September 3,
2010, when the plane’s engine allegedly failed.

Am. Compl. ¶ 8.

The engine, including the fuel pump, was manufactured by Lycoming.
Id.

¶

9.

The

plane

permanent injuries.

crashed,

Id. ¶ 12.

and

Kedrowski

suffered

severe

At the time Kedrowski commenced

this action, his past and projected medical and other expenses
totaled over $7 million.

Id. ¶ 15.

Kedrowski asked Seader to conduct an investigation of the
crash.

Id. ¶ 17-21.

Seader concluded that the aircraft’s engine

failed mid-flight as a result of a defect in the Lycoming fuel
pump.

Id. ¶ 21.

On December 7, 2012, Kedrowski filed an action

against Lycoming in Ramsey County District Court, asserting claims
for negligence and products liability.

Id. ¶ 22.

Kedrowski

retained Seader as an expert witness, and Seader prepared a report
detailing the findings in his investigation (Seader Report).

Id.

¶ 59.
In November 2014, Henderson was contacted to review and
comment on the Seader Report.

Henderson Decl. ¶ 6.

the

North

president

of

Aero,

a

Carolina

Henderson is

corporation

that

manufactures fuel pumps in competition with Lycoming. Id. ¶¶ 3, 6.

2

The Seader Report was based in part on test data obtained from Aero
that was unrelated to the litigation.

Id. ¶ 6.

Henderson took

issue with Seader’s methods and disagreed with his findings.

Id.

Lycoming subsequently moved to exclude Seader as an expert
witness.

Am. Compl. ¶¶ 41, 43.

Daniel Haws, an attorney for

Lycoming, asked Henderson to submit an affidavit in support of the
motion.

Id. ¶ 44; Henderson Decl. ¶ 7.

Haws provided Henderson a

draft of the affidavit, which Henderson revised and executed in
North Carolina.

Henderson Decl. ¶ 7.

The state court denied the

motion to exclude but prohibited Seader from giving engineering
opinions.

Am. Compl. ¶ 45; Haws Aff. Ex. 4, at 8 ¶ 3(c)(ii).

On December 16, 2014, an attorney for Aero sent a letter to
Seader criticizing his report.

See Compl. Ex. 5.

The letter

stated that “Aero has been dragged into this matter and has
incurred damages.”

Id. at 2.

Aero demanded that Seader withdraw

his report and any related documents and threatened to sue Seader
personally if he refused to do so.

Id.

The letter was written in

North Carolina, mailed to Seader at his Colorado address, and
indicated that a copy was sent to Haws in Minnesota.
Kedrowski

alleges

that

defendants,

through

the

Id.
letter,

“substantially interfer[ed] with Mr. Seader’s ability to provide
witness testimony free from fear.”

3

Am. Compl. ¶ 57.

It is

undisputed that Seader has not refused to testify in state court
nor indicated that he will limit or change his testimony as a
result of the letter.

Haws Aff. ¶ 21.

On January 6, 2015, Kedrowski filed a complaint in this court,
asserting claims for (1) tortious interference with contract,
(2) tortious interference with prospective economic advantage,
(3) intentional interference with business relations, (4) civil
conspiracy, (5) intentional infliction of emotional distress, and
(6) negligent infliction of emotional distress.
to dismiss on January 5 and February 6, 2015.

Defendants moved
ECF Nos. 5, 17.

Kedrowski filed an amended complaint as a matter of course on
February 27, 2015, and alternatively, moved to amend the complaint.
ECF Nos. 26, 40.

Defendants then moved for sanctions.

ECF Nos.

35, 57.

DISCUSSION
I.

Motion to Amend
The court first addresses Kedrowski’s motion to amend the

complaint.

Courts should “freely give leave” to amend a pleading

“when justice so requires.”

Fed. R. Civ. P. 15(a)(2).

The court

may deny leave to amend “if there are compelling reasons such as
undue delay, bad faith, or dilatory motive, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice
to the non-moving party, or futility of the amendment.”

4

Reuter v.

Jax Ltd., Inc., 711 F.3d 918, 922 (8th Cir. 2013).

“[T]he party

opposing the motion [to amend] must show it will be unfairly
prejudiced.”

Dennis v. Dillard Dep’t Stores, Inc., 207 F.3d 523,

525 (8th Cir. 2000).
Here, Kedrowski has not exhibited bad faith or dilatory motive
in seeking leave to amend.

Rather, the amended complaint includes

two minor changes that address jurisdictional deficiencies. First,
Kedrowski omitted the Doe defendants from the complaint to ensure
diversity of citizenship.

See Payich v. GGNSC Omaha Oak Grove,

LLC, No. 4:12CV3040, 2012 WL 1416693, at *3 (D. Neb. Apr. 24, 2012)
(noting

a

split

of

authority

on

how

to

treat

unidentified

defendants for purposes of original diversity jurisdiction).
Kedrowski also added a paragraph intended to support a finding of
specific personal jurisdiction under Minnesota’s long-arm statute.
Am. Compl. ¶ 7.
Defendants have not shown that they would be prejudiced as a
result of these changes.

Indeed, defendants adapted their motions

to dismiss to address the amended complaint, and they have not rebriefed the motions or rescheduled hearings at additional expense.
Further, although the changes made to the complaint do not cure its
deficiencies, amendment would avoid the procedural anomaly of
having multiple complaints go forward.
grants the motion to amend.

5

As a result, the court

II.

Motions to Dismiss
A.

Personal Jurisdiction

Aero and Henderson argue that dismissal is warranted for lack
of personal jurisdiction.

The court agrees.

To survive a motion

to dismiss for lack of personal jurisdiction, the plaintiff has the
burden of establishing a prima facie case that the forum state has
personal jurisdiction over the defendant.
F.3d 900, 904 (8th Cir. 2007).

See Coen v. Coen, 509

In the absence of an evidentiary

hearing, a court “must look at the facts in the light most
favorable to the nonmoving party and resolve all factual conflicts
in favor of that party.” Dakota Indus., Inc. v. Dakota Sportswear,
Inc., 946 F.2d 1384, 1387 (8th Cir. 1991) (citation omitted).

A

federal court may assume jurisdiction over a nonresident defendant
“only to the extent permitted by the long-arm statute of the forum
state and by the Due Process Clause.”

Romak USA, Inc. v. Rich, 384

F.3d 979, 984 (8th Cir. 2004) (citation and internal quotation
marks omitted).

Because the Minnesota long-arm statute “confers

jurisdiction to the fullest extent permitted by the Due Process
Clause,” the court need only consider due process requirements.
See Coen, 509 F.3d at 905 (citation omitted).
To satisfy due process, a defendant must have “sufficient
minimum contacts” with the forum state such that maintaining the
suit

“does

not

offend

substantial justice.”

traditional

notions

of

fair

play

and

Romak, 384 F.3d at 984 (citation omitted).

6

“Sufficient
connection

contacts
with

the

exist

when

forum

[a]

state

defendant’s

are

such

that

conduct
[it]

and

should

reasonably anticipate being haled into court there ....” Coen, 509
F.3d at 905 (citation and internal quotation marks omitted).
Contacts with the forum state can establish either general or
specific

personal

jurisdiction

when

jurisdiction.
the

cause

A

of

forum

action

state

“arise[s]

has

specific

out

of”

“relate[s] to” a defendant’s activities within that state.
King Corp.

v.

Rudzewicz,

quotation marks omitted).

471

U.S.

462, 472

(1985)

or

Burger

(internal

General jurisdiction is present when,

regardless of the cause of action, a defendant has “continuous and
systematic contacts with the forum state.”
(internal quotation marks omitted).
Eighth

Circuit

considers

five

Coen, 509 F.3d at 905

Under either analysis, the

factors

in

determining

whether

personal jurisdiction is present: “(1) the nature and quality of
defendant’s

contacts

with

the

forum

state;

(2)

quantity

of

contacts; (3) source and connection of the cause of action with
those contacts; and to a lesser degree, (4) the interest of the
forum state; and (5) the convenience of the parties.”

Wessels,

Arnold & Henderson v. Nat’l Med. Waste, Inc., 65 F.3d 1427, 1432
(8th Cir. 1995).
Henderson is a citizen and resident of North Carolina, and
Aero is a North Carolina corporation.

Am. Compl. ¶¶ 3-4.

Neither

has any continuous or systematic contacts with Minnesota that would

7

be sufficient to establish general personal jurisdiction, as they
have not recently traveled to, conducted business or owned property
in, or had any other regular dealings with the state.1
Decl. ¶¶ 2-4; Welsh Decl. ¶¶ 5-6.

Kedrowski argues, however, that

specific

personal

jurisdiction

exists

intended

to

a

resident

Minnesota

harm

Minnesota

proceeding.

See

Henderson

Minn.

because
and

the

letter

interfere

Stat. § 543.19,

was

with

subd.

a

1(3)

(conferring jurisdiction where a defendant “commits any act outside
Minnesota causing injury or property damage in Minnesota”).
Further, Kedrowski notes that the Aero attorney who drafted the
letter contacted Lycoming’s Minnesota counsel on at least one
occasion to discuss the withdrawal of the Seader Report. Haws Aff.
¶ 12.
The court finds that the conduct surrounding the letter is
insufficient
Henderson.

to

confer

personal

jurisdiction

over

Aero

and

The letter was sent on behalf of a North Carolina

resident and corporation to a non-party citizen of Colorado.

1

Kedrowski argues that discovery is needed before the court
can determine whether it has general personal jurisdiction over
Aero and Henderson. Kedrowski does not dispute the allegations
made by Aero and Henderson regarding their limited contacts with
Minnesota.
Instead, he argues that more information is needed
regarding Aero’s sales into the Minnesota market. Simply selling
products in the forum state, without more, is insufficient to
establish general personal jurisdiction. See Viasystems, Inc. v.
EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 597-98 (8th
Cir. 2011). Moreover, as stated in the court’s February 20, 2015,
order, Kedrowski has not offered any evidence of jurisdiction that
would entitle him to discovery. See ECF No. 25. As a result,
jurisdictional discovery is not warranted.
8

Jurisdiction may exist over a non-resident defendant who commits
acts outside of the forum state, so long as those acts are
performed “for the very purpose of having their consequences felt
in the forum state.”

Johnson v. Arden, 614 F.3d 785, 796 (8th Cir.

2010) (citation and internal quotation marks omitted).

Absent

additional contacts, however, “mere effects in the forum state are
insufficient to confer personal jurisdiction.”

Id. at 797.

The

additional communications made between Aero and Lycoming attorneys
regarding the letter do not constitute sufficient “additional
contacts” that would support a finding of jurisdiction.

See Digi-

Tel Holdings, Inc. v. Proteq Telecomm. (PTE), Ltd., 89 F.3d 519,
523 (8th Cir. 1996) (“Although letters and faxes may be used to
support the exercise of personal jurisdiction, they do not by
themselves establish jurisdiction.”).

Moreover, because there is

no indication that Seader will withdraw or limit his testimony, it
does not appear that the letter caused harm in Minnesota at all.
Kedrowski also argues that personal jurisdiction exists over
Aero and Henderson because (1) Henderson appeared in Minnesota by
submitting an affidavit in the state action and (2) attorneys for
Henderson and Aero communicated with Lycoming in connection with
that affidavit. This particular dispute, however, does not pertain
to harm arising out of the limited participation of Aero and
Henderson in the Minnesota action.

Instead, it arises out of the

letter and an alleged conspiracy to wrongfully preclude Seader’s

9

testimony.

Any

contacts

unrelated

to

establish specific personal jurisdiction.

that

activity

cannot

See Workman Sec. Corp.

v. Phillip Roy Fin. Servs., LLC, No. 09-CV-1723, 2010 WL 155525, at
*4

(D.

Minn.

jurisdictional

Jan.

11,

analysis

2010)
that

a

(finding

it

non-resident

irrelevant
defendant

to
sold

plaintiff’s products in Minnesota, as those products were not
involved in the dispute).

As a result, the court lacks personal

jurisdiction over Aero and Henderson.
B.

Subject Matter Jurisdiction

Lycoming argues that dismissal is also warranted for lack of
subject matter jurisdiction, because Kedrowski has not adequately
pleaded an amount in controversy greater than $75,000.

“[A]

complaint that alleges the jurisdictional amount in good faith will
suffice to confer jurisdiction, but the complaint will be dismissed
if it appear[s] to a legal certainty that the claim is really for
less than the jurisdictional amount.”

Scottsdale Ins. Co. v.

Universal Crop Protection Alliance, LLC, 620 F.3d 926, 931 (8th
Cir. 2010) (citation and internal quotation marks omitted).

“If

the defendant challenges the plaintiff’s allegations of the amount
in controversy, then the plaintiff must establish jurisdiction by
a preponderance of the evidence.”
85 (8th Cir. 2002).

Kopp v. Kopp, 280 F.3d 883, 884-

“[T]he proponent of federal jurisdiction must

show that it does not appear to a legal certainty that the claim
for

relief

is

for

less

than

10

the

statutorily

prescribed

jurisdictional

amount.”

Id.

at

485

(citation

and

internal

quotation marks omitted).
Kedrowski argues that, in light of the significant damages
sought in his state action, he is required to obtain experts whose
fees exceed $75,000.

If Seader does not testify in the state

action or if he withdraws his report, Kedrowski argues that he will
have to retain a substitute expert or likely lose the case, and
that either scenario will result in damages greater than $75,000.
As previously mentioned, however, Kedrowski’s pleadings do not
allege that Seader has actually limited his testimony or withdrawn
his report, or that his testimony will have any reduced pecuniary
value as a result of the letter.

Kedrowski cannot establish the

required jurisdictional amount by pointing to speculative damages
based on theoretical harm.
Kedrowski also argues that defendants have caused him “severe
emotional distress ... including but not limited to substantial
fright, extraordinary stress, anxiety and apprehension culminating
in severe damages and pain and suffering.”

Am. Compl. ¶¶ 88, 94.

Such conclusory allegations, however, are insufficient to establish
the jurisdictional amount by a preponderance of the evidence.

As

a result, it appears to a legal certainty that the amount in
controversy

is

less

than

$75,000,

jurisdiction is lacking.

11

and

that

subject

matter

C.

Dismissal Under Rule 12(b)(6)

Defendants

also

argue

that,

even

if

the

court

has

jurisdiction, dismissal is warranted because Kedrowski has not
adequately pleaded claims for relief.

The court agrees.

To

survive a motion to dismiss for failure to state a claim, “a
complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“A claim

has facial plausibility when the plaintiff [has pleaded] factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Iqbal, 556

U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)).

Although a complaint need not contain detailed factual

allegations, it must raise a right to relief above the speculative
level.

Twombly, 550 U.S. at 555.

“[L]abels and conclusions or a

formulaic recitation of the elements of a cause of action” are not
sufficient to state a claim.

Iqbal, 556 U.S. at 678 (citation and

internal quotation marks omitted).
As stated, Kedrowski does not allege that Seader limited his
testimony or that he breached his agreement to appear as an expert
witness in the state action.

As a result, the claims for tortious

interference with contract, tortious interference with prospective
economic advantage, and intentional interference with business

12

relations fail as a matter of law.

See Lamminen v. City of

Cloquet, 987 F. Supp. 723, 731 (D. Minn. 1997) (requiring plaintiff
to have sustained damages as a result of defendant’s interference);
Gieseke ex rel. Diversified Water Div., Inc. v. IDCA, Inc., 844
N.W.2d 210, 219 (Minn. 2014) (same); St. Jude Med., Inc. v.
Medtronic, Inc., 536 N.W.2d 24, 30 n.6 (Minn. Ct. App. 1995)
(requiring defendant’s conduct to induce a breach of contract).
Moreover,

Kedrowski’s

emotional

harm

manifestations

-

generic

and

especially

in

are

insufficient

conclusory
the
to

allegations

absence

support

of

his

of

physical

claims

intentional and negligent infliction of emotional distress.

for
See

Engler v. Ill. Farmers Ins. Co., 706 N.W.2d 764, 767 (Minn. 2005)
(requiring plaintiff who alleges NIED claim to suffer “severe
emotional distress with attendant physical manifestations”); Albert
v. Indep. Sch. Dist. No. 709, No. A12-1516, 2013 WL 1500986, at *4
(Minn. Ct. App. Apr. 15, 2013) (finding plaintiff’s allegation that
she “suffered severe emotional distress, pain and suffering, fear,
anxiety,

embarrassment,

discomfort,

and

humiliation”

to

be

conclusory and insufficiently severe to support IIED claim).
Finally,

because

Kedrowski

has

not

adequately

alleged

that

defendants engaged in unlawful acts, the claim for civil conspiracy
fails as well.

See SICK, Inc. v. Motion Control Corp., No. 01-

1496, 2003 WL 21448864, at *10 (D. Minn. June 19, 2003) (noting
“that civil conspiracy must be based upon a criminal act or an

13

underlying intentional tort”).

As a result, dismissal is also

warranted for failure to state a claim.
III.

Sanctions
Defendants next move for sanctions under Rule 11.

Rule 11

sanctions may be appropriate when a pleading, written motion, or
other paper (1) is submitted to the court for any improper purpose,
such as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation; (2) is not supported by existing law or a
nonfrivolous argument for the extension, modification, or reversal
of existing law; or (3) if the allegations contained therein lack
support.

See Fed. R. Civ. P. 11(b)(1)-(3).

To satisfy the

requirements of Rule 11, an attorney must conduct a reasonable
inquiry into the factual and legal basis for the claim.

Coonts v.

Potts, 316 F.3d 745, 753 (8th Cir. 2003).

In determining whether

sanctions

considers

are

appropriate,

the

court

“whether

a

reasonable and competent attorney would believe in the merit of
[the] argument.”

Id. (citations and internal quotation marks

omitted).
Although the court is convinced that it lacks jurisdiction
over this matter and that Kedrowski has failed to state a claim for
relief, the court does not find that sanctions under Rule 11 are
warranted.

Under Minnesota law, Kedrowski is required to plead

breach of contract or actual refusal to testify by Seader to
establish his tort claims.

It was not unreasonable, however, for

14

Kedrowski to argue that the letter had a chilling effect on
Seader’s proposed testimony that may well have led him to withdraw
from the case.

Such an argument, though unsuccessful, is not so

far afield as to rise to the level of a Rule 11 violation.

See

Charland v. Little Six, Inc., 112 F. Supp. 2d 858, 867 (D. Minn.
2000) (noting that Rule 11 “is not intended to chill an attorney’s
enthusiasm or creativity in pursuing factual or legal theories”).
Further, Kedrowski had a good faith basis to believe that the court
may

have

jurisdiction

over

Aero

and

Henderson,

given

their

participation in the Minnesota action and communications with
Lycoming regarding Seader’s testimony.

As a result, the court

declines to impose sanctions under Rule 11.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

The motions to dismiss [ECF Nos. 5, 17] are granted;

2.

The motion to strike the amended complaint [ECF No. 30]

is denied;
3.

The motions for sanctions [ECF Nos. 35, 57] are denied;

4.

The

motion

to

amend

the

granted; and

15

complaint

[ECF No.

40]

is

5.

The motion to strike the reply [ECF No. 52] is denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

May 11, 2015
s/David S. Doty
David S. Doty, Judge
United States District Court

16