Rodriguez v. Pruett

Filing 18

MEMORANDUM AND ORDER denying the Defendant Ashley Pruett's 11 Motion to Dismiss; The Plaintiff, Marie Rodriguez's 14 Motion to Transfer is granted. The clerk is directed to transfer this case to the Western District of Oklahoma. Ordered by Chief Judge Laurie Smith Camp. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARIE RODRIGUEZ,
Plaintiff,
v.
ASHLEY PRUETT,
Defendant.

)
)
)
)
)
)
)
)
)

CASE NO. 8:11CV356

MEMORANDUM
AND ORDER

This matter is before the Court on the Defendant Ashley Pruett's Motion to Dismiss
(Filing No. 11), in which she argues that this case should be dismissed for lack of personal
jurisdiction, and the Plaintiff Marie Rodriguez's Motion to Transfer (Filing No. 14),
requesting that the case be transferred to the Western District of Oklahoma. For the
reasons discussed below, the Court finds that it lacks personal jurisdiction over the
Defendant, and a transfer of venue to Oklahoma is warranted. The Defendant’s Motion
will be denied, and the Plaintiff's Motion will be granted.
BACKGROUND1
On October 18, 2009, Rodriguez was a passenger in a vehicle driven on Interstate
35 near Oklahoma City, Oklahoma. Pruett's vehicle collided with the vehicle in which
Rodriguez was riding, and Rodriguez immediately suffered injuries. Pruett did not stop,
and drove away. Rodriguez and her fellow traveler(s) obtained Pruett's license plate
number, contacted the State Patrol, and waited for law enforcement to arrive at the scene.

1

The facts are taken from the Plaintiff's affidavits (Filing Nos. 10, 16-1, 16-2). The Defendant did not
file any affidavits. See Coen v. Coen, 509 F.3d 900, 904-05 (8th C ir. 2007) (providing that the plaintiff’s
showing for a m otion to dism iss for lack of personal jurisdiction “m ust be tested, not by the pleading alone,
but by the affidavits and exhibits presented” in support of and in opposition to the motion). For purposes of
the pending Motion to Dism iss, the Court m ust view the facts provided in the affidavits in the light m ost
favorable to the Plaintiff and resolve all factual conflicts in his or her favor. Dakota Indus., Inc. v. Dakota
Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991).

Rodriguez's counsel could not locate a police report of the accident that would identity
Pruett's address or her insurance carrier. Rodriguez's counsel eventually received an
insurance policy number for Pruett from the insurance carrier for the owner of the vehicle
in which Rodriguez was riding.
Rodriguez then returned to her home in Kearney, Nebraska, where she obtained
medical treatment, including surgery. Her physician assigned her a 10% permanent partial
disability rating and referred her to another physician for pain management. Rodriguez
works as a job developer at ResCare, Inc., in Kearney. She has suffered lost wages and
has been sued in Hall and Buffalo County courts for unpaid medical bills.
On October 12, 2011, Rodriguez filed her Complaint in this Court, alleging that
Pruett was negligent. Rodriguez filed her suit and obtained service on Pruett within
Oklahoma's two-year statute of limitations. Rodriguez alleged diversity jurisdiction under
28 U.S.C. § 1332(a) as she resides in Nebraska and Pruett resides in Ponca City,
Oklahoma. On April 2, 2012, Pruett's insurance carrier opened a claim. Rodriguez's
counsel believes that the amount of Rodriguez's damages exceeds Pruett's available
liability coverage.
On April 3, 2012, this Court issued an order directing Rodriguez to show cause as
to why this case should not be dismissed for lack of prosecution. Rodriguez's counsel filed
a declaration stating that he obtained valid service over Pruett and she failed to respond
to the Complaint. However, Rodriguez's attorney explained that he had not moved for
default in light of his need to investigate Pruett's insurance coverage. Because he believed
Pruett to be under-insured, he sought to comply with NEB . REV . STAT . § 44-6412 and

2

thereby enable Pruett's carrier to exercise its options and retain its right of subrogation.
Pruett's Motion to Dismiss soon followed, and the Motion to Transfer was filed in response.
DISCUSSION
I.

Rule 12(b)(2)- Personal Jurisdiction
To survive a Federal Rule of Civil Procedure 12(b)(2) motion to dismiss for lack of

personal jurisdiction, a plaintiff must plead “sufficient facts 'to support a reasonable
inference that the defendant[ ] can be subjected to jurisdiction within the state.'” K-V
Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591-92 (8th Cir. 2011). When
jurisdiction is challenged, the “'nonmoving party need only make a prima facie showing of
jurisdiction.'” Pangaea, Inc. v. Flying Burrito LLC, 647 F.3d 741, 745 (8th Cir. 2011)
(quoting Dakota Indus., Inc., 946 F.2d at 1387). The plaintiff's showing “'must be tested,
not by the pleading alone, but by the affidavits and exhibits presented'” in support of and
in opposition to the motion to dismiss for lack of personal jurisdiction. Coen, 509 F.3d at
904 (quoting Deyer v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir. 2004)). “'[T]he
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.'” Pangaea, Inc., 647 F.3d at 745 (quoting Dakota
Indus., Inc., 946 F.2d at 1387).
In determining whether this Court has personal jurisdiction over a nonresident
defendant, two issues are presented: (1) whether the requirements of the Nebraska longarm statute are satisfied and (2) whether the exercise of jurisdiction over this Defendant
will violate the Fourteenth Amendment Due Process Clause. Coen, 509 F.3d at 905.

3

Because Nebraska’s long-arm statute, NEB. REV. STAT . § 25-536,2 has been interpreted to
extend jurisdiction over nonresident defendants to the fullest degree allowed by the Due
Process Clause of the United States Constitution, Ameritas Inv. Corp. v. McKinney, 694
N.W.2d 191, 199 (Neb. 2005), the Court need only determine whether the assertion of
jurisdiction offends constitutional limits.
In order to exercise personal jurisdiction over a nonresident defendant, due process
requires that the defendant have “minimum contacts” with the forum state such that
maintenance of a suit against that defendant “does not offend ‘traditional notions of fair
play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). The nonresident defendant’s
conduct and connection with the forum state must be such that “he should reasonably
anticipate being haled into court there,” World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297 (1980), and it is essential that “‘there be some act by which the defendant
purposefully avails itself of the privilege of conducting activities within the forum State, thus

2

N EB . R EV . S TAT . § 25-536 provides:

A court m ay exercise personal jurisdiction over a person:
(1) W ho acts directly or by an agent, as to a cause of action arising from the person:
(a) Transacting any business in this state;
(b) Contracting to supply services or things in this state;
(c) Causing tortious injury by an act or omission in this state;
(d) Causing tortious injury in this state by an act or om ission outside this state if the
person regularly does or solicits business, engages in any other persistent course of conduct,
or derives substantial revenue from goods used or consum ed or services rendered, in this
state;
(e) Having an interest in, using, or possessing real property in this state; or
(f) Contracting to insure any person, property, or risk located within this state at the
tim e of contracting; or
(2) W ho has any other contact with or m aintains any other relation to this state to
afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the
United States.

4

invoking the benefits and protections of its laws.’” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 475 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). “Purposeful
availment” means that the defendant’s contacts with the forum state must not be “'random,'
'fortuitous,' or 'attenuated,'” or the result of ”'unilateral activity of another party or a third
person.'” Id. at 475 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)
and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984)). A
defendant’s minimum contacts with the forum state must exist either when the cause of
action arose, when the suit was filed, or within a reasonable period of time immediately
prior to the filing of the lawsuit. Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558, 562
(8th Cir. 2003).
Once it has been determined that the nonresident defendant purposefully
established minimum contacts with the forum state, such contacts must be analyzed in light
of other factors to determine whether the exercise of personal jurisdiction over the
nonresident defendant comports with “'fair play and substantial justice.'” Burger King, 471
U.S. at 476 (quoting Int'l Shoe Co. v. Washington, 326 U.S. at 320). The factors, as
articulated by the Eighth Circuit Court of Appeals, are: “'(1) the nature and quality of
contacts with the forum state; (2) the quantity of those contacts; (3) the relation of the
cause of action to the contacts; (4) the interest of the forum state in providing a forum for
its residents; and (5) the convenience of the parties.'” Coen, 509 F.3d at 905 (quoting Bell
Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 819 (8th Cir. 1994)). The fourth and fifth
factors, however, are of secondary importance and not determinative. Id. In applying
these factors, the central inquiry is the “‘relationship among the defendant, the forum, and

5

the litigation.’” Land-O-Nod Co. v. Bassett Furniture Indus., Inc., 708 F.2d 1338, 1340
(1983) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)).
Turning to the instant case, and viewing the facts in the light most favorable to
Rodriguez, her affidavits do not reveal any contacts between Pruett and Nebraska. Pruett
does not reside in Nebraska, and no other contacts are alleged. Therefore, Pruett had no
reason to anticipate being haled to court in Nebraska. Pruett lacks “minimum contacts”
with Nebraska such that continued maintenance of this case against her in this forum
would offend “‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co., 326
U.S. at 316 (quoting Milliken, 311 U.S. at 463). For reasons discussed below, however,
the motion to dismiss will be denied.
II.

Transfer of Venue
Rodriguez moves for a change of venue to the Western District of Oklahoma under

28 U.S.C. § 1406(a), which provides: “The district court of a district in which is filed a case
laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice,
transfer such case to any district or division in which it could have been brought.”
Section 1406(a) authorizes the transfer of a case for improper venue, even if the
transferor court lacks personal jurisdiction over the defendant. Goldlawr, Inc. v. Heiman,
369 U.S. 463, 466-67 (1962) (cited in Eggleton v. Plasser & Theurer Export Von
Bahnbaumaschinen Gesellschaft, MBH, 495 F.3d 582, 584 (8th Cir. 2007)). As discussed
above, this case was filed in the “wrong . . . district.” 28 U.S.C. § 1406(a). When a case
is transferred under § 1406(a), the law of the transferee state applies. Eggleton, 495 F.3d
at 587. Oklahoma law provides a two-year statute of limitations for personal injury actions.
12 OKLA STAT . tit. 12, § 95(A)(3). If this case were dismissed, Rodriguez could not refile

6

the case as it would be outside the statute of limitations. Therefore, in the interest of
justice, the case will be transferred to the Western District of Oklahoma, a district in which
the case could have been brought.
Accordingly,
IT IS ORDERED:
1.

The Defendant Ashley Pruett's Motion to Dismiss (Filing No. 11) is denied;

2.

The Plaintiff Marie Rodriguez's Motion to Transfer (Filing No. 14) is granted;
and

3.

The Clerk is directed to transfer this case to the Western District of
Oklahoma.

DATED this 16th day of May, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

7