Meek v. Gold Coast Skydivers, Inc. et al

Filing 115

ORDER denying 28 Motion to Dismiss; denying 37 Motion to Dismiss; denying 65 Motion to Dismiss; denying 67 Motion to Dismiss; denying 69 Motion to Dismiss; denying 102 Motion to Dismiss for the reasons set out in the order. Signed by District Judge Daniel P. Jordan III on November 5, 2015. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
DAVID MEEK

PLAINTIFF

V.

CIVIL ACTION NO. 2:15cv4-DPJ-FKB

GOLD COAST SKYDIVERS, INC., et al.

DEFENDANTS
ORDER

This diversity case is before the Court on Defendants Performance Designs, Inc.,
Parachute Laboratories, Inc., Vigil America, Inc., United Parachute Technology, Inc., Uninsured
United Parachute Technologies, LLC, and A.A.D., SA’s Motions to Dismiss for Insufficiency of
Process and Insufficiency of Service of Process [28, 37, 65, 67, 69, 102].
I.

Facts and Procedural History
On August 3, 2013, Plaintiff David Meek traveled to the I.H. Bass, Jr. Memorial Airport

in Lumberton, Mississippi, to engage the services of a recreational skydiving facility allegedly
operated by Defendants Gold Coast, Emerald, and SkySystems as a joint venture. Meek, a
novice with no prior skydiving experience, was set to participate in a “tandem skydive” whereby
he would be attached by harness to an experienced skydiver (the “parachutist in command”). To
prepare for the jump, Meek was asked to watch a short safety video, but received no other
training from Defendants. See Proposed Am. Compl. [39] ¶¶ 16 19.
After watching the training video, Meek was flown to jumping altitude in a plane
owned

and allegedly operated

by Emerald. Meek and the parachutist in command, James

Horak, jumped from the aircraft between 10:00 a.m. and 11:00 a.m. and shortly thereafter
attempted to open the main canopy, but it failed to deploy properly. Horak then attempted to
deploy the reserve parachute, but it also failed to deploy. Per Federal Aviation Administration

(“FAA”) regulations, all tandem parachute systems are required to have an automatic activation
device (AAD) to force the deployment of the reserve parachute. But the device employed in this
case a “Vigil II” model

never activated. As a result, the reserve parachute never opened,

causing Meek and Horak to directly impact the ground in a swampy area of Lamar County. Id.
¶¶ 20 25.
Meek alleges that despite being aware of the parachute failures, Defendants failed to
notify the Sheriff’s office until approximately 2:00 p.m. and continued regular operations even
after Meek and Horak failed to land in the Airport drop zone. Rescuers ultimately discovered
them between 3:00 p.m. and 5:00 p.m., finding Horak deceased and Meek conscious, but with
serious injuries. Although Meek has recovered from some of his injuries, others have left him
with permanent damage, including the inability to use his legs and the limited use of his upper
extremities. He has also suffered from continuous pain and has been unable to work since the
incident. Id. ¶¶ 26 29.
Meek filed suit in this Court on January 20, 2015, alleging claims of negligence, gross
negligence, products liability, and breach of express and implied warranties. He seeks damages
in the amount of $25,000,000. In addition to the aforementioned Defendants, Meek joined the
following Defendants: (1) Leanne Igo (the president of Gold Coast and Emerald and a member of
SkySystems); (2) Benjamin Crowell (a skydiving instructor and parachute rigger affiliated with
Gold Coast, SkySystems, and Emerald); (3) United Parachute Technology, Inc. and Uninsured
United Parachute Technologies, LLC (the manufacturers of the tandem harness and container
used to connect Meek and Horak); (4) Parachute Laboratories, Inc. (the main canopy designer
and manufacturer); (5) Performance Designs, Inc. (the reserve parachute designer and
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manufacturer); (6) A.A.D., SA (the foreign manufacturer of the Vigil II AAD); (7) Vigil
America, Inc. (A.A.D., SA’s United States distributor); (8) the City of Lumberton, Mississippi
(an alleged member of the joint venture to operate the skydiving facility); and (9) John Does
1 15.
Following service, Defendants Performance Designs, Inc., Parachute Laboratories, Inc.,
Vigil America, Inc., United Parachute Technology, Inc., Uninsured United Parachute
Technologies, LLC, and A.A.D., SA made special appearances and now seek dismissal for
insufficiency of process and insufficiency of service of process [28, 37, 65, 67, 69, 102]. These
motions have been fully briefed and are now before the Court.
II.

Analysis
Six of the corporate Defendants named in the Complaint move to dismiss this action

pursuant to Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5) for insufficient process and
insufficient service of process.1 Defendants primarily contend that Meek “did not plead any
authority for service of process on an out of state Defendant” because he did not specify how the
Mississippi long-arm statute is satisfied such that this Court can validly exercise in personam
jurisdiction. See Def.’s Mem. [38] at 2 3. Defendants also suggest that Meek “never properly
effectuated proper service” because he did not “plead or comply with the provisions of the Long
Arm Statute, but instead [] merely served the Summons and Complaint.” Id. at 6 7.
These arguments reach the Court in an odd posture. Defendants have not challenged
personal jurisdiction under Rule 12(b)(2). They instead pursue Rules 12(b)(4) and 12(b)(5),
1

Although each of the six Defendants filed a separate motion, each is substantively
identical apart from the parties’ names. As such, the Court will cite only to the first docketed
motion when referring to Defendants’ arguments.
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claiming that Plaintiff insufficiently pleaded jurisdiction in the Complaint. Defendants cite no
relevant authority and their arguments find no support in the federal summons and pleading
requirements under Rules 4 and 8 or the purposes behind Rules 12(b)(4) and 12(b)(5).
A Rule 12(b)(4) objection relates specifically to “the form of the process rather than the
manner or method of its service . . . [and] is proper only to challenge noncompliance with the
provisions of Rule 4(b) or any applicable provision incorporated by Rule 4(b) that deals
specifically with the content of the summons.” Baton Rouge Total Care Ctr. v. Regency 14333,
No. 14-168-JWD-SCR, 2014 WL 5794995, at *1 (M.D. La. Nov. 6, 2014) (quoting 5B Charles
Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed.)). Rule 4(b),
in turn, describes the proper procedure for the clerk of court to sign, seal, and issue the summons
to the plaintiff for service on the defendant. See Fed. R. Civ. P. 4(b). By comparison, a Rule
12(b)(5) objection is used to challenge the method of delivery or the lack of delivery of the
summons and complaint, and allows a defendant to seek dismissal where the plaintiff does not
comply with the service requirements of Rule 4(c). Williams v. Air-France-KLM, S.A., No. 3:14CV-1244-B, 2014 WL 3626097, at *2 (N.D. Tex. July 23, 2014).
Defendants have not demonstrated a proper basis for dismissal under either Rule 12(b)(4)
or 12(b)(5). At no point in the memoranda supporting their motions do they call into question
the content of the summons nor the method of delivery. To the contrary, Defendants concede in
each Motion that the Summons and Complaint were served on an individual at the addresses
listed in the Complaint and make no objection that any of these individuals or addresses were
unaffiliated with Defendants. See, e.g., Def.’s Mem. [38] at 6 7. Defendants also offer no
authority to support the contention that a plaintiff is required to plead detailed jurisdictional
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facts

including how the state long-arm statute is satisfied

in the complaint to avoid dismissal

under Rules 12(b)(4) or 12(b)(5). Indeed, Rule 8 is clear in requiring only “a short and plain
statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1). Defendants’
Motions are denied.
III.

Conclusion
The Court has considered the parties’ arguments. Those not specifically addressed would

not have changed the outcome. For the foregoing reasons, Defendants’ Motions to Dismiss for
Insufficiency of Process and Insufficiency of Service of Process [28, 37, 65, 67, 69, 102] are
denied.
SO ORDERED AND ADJUDGED this the 5th day of November, 2015.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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