MITCHELL et al v. GPM INVESTMENTS, LLC et al

Filing 30

MEMORANDUM ORDER granting 20 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Renee Marie Bumb on 2/11/15. (js)

[Docket No. 20]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

PEARLY MITCHELL and CUPID
MITCHELL,
Civil No. 14-683 (RMB/AMD)
Plaintiffs,
MEMORANDUM ORDER

v.
GPM INVESTMENTS, LLC D/B/A FAS
MART SHORE STOP, et al.,
Defendants.

Bumb, United States District Judge
This matter comes before the Court upon a Motion to Dismiss
the Complaint filed by Defendants Kellam Realty Company, LLP,
incorrectly designated as Kellam Realty Company, and Douglass K.
Patterson (:Defendants”).

[Docket No. 20]

For the reasons set

forth herein, this motion, which is unopposed,1 is granted.
Plaintiffs Pearly Mitchell and Cupid Mitchell, wife and
husband, allege that Mrs. Mitchell sustained personal injuries
on February 4, 2012, as a result of a trip and fall incident
1

Plaintiffs sought an extension from this Court to file any
opposition by November 10, 2014. [Docket No. 29]. Almost four
months have passed, and Plaintiffs have not opposed this motion.
On this basis alone, the Court could grant the motion.

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that occurred on a convenience store premises located at 1647
Lankford Highway, North Hampton County, Eastville, Virginia.
Plaintiff Pearly Mitchell alleges that she was walking on the
sidewalk which connected the parking lot to the front entrance
of the convenience store when she was caused to trip and fall
over an air hose extending from a tire inflation machine located
on the premises.

Plaintiffs assert a negligence/premises

liability theory against, among others, the Defendants.
Defendants now move for entry of an order pursuant to Fed.
R. Civ. P. 12(b)(2), dismissing Plaintiffs’ Complaint against
them for lack of personal jurisdiction.
According to Defendants, Defendant Kellam Realty Company,
LLP, is a Virginia limited liability partnership and current
owner of the premises upon which the convenience store is
located.

See Certification of Douglass K. Patterson, [Docket

No. 20-2].

Kellam Realty Company, LLP is the successor-in-

interest to Kellam Realty Company, a Virginia general
partnership and the previous owner of the store.

Id.

Kellam

Realty Company, LLP, is an out of possession owner/landlord of
the premises subject to a “triple-net” lease agreement with the
tenant/possessor Defendant GPM Investments, LLC, which entity
operates the convenience store.

Id.

Defendant Douglass K.

Patterson is a partner with Kellam Realty Company, LLP.

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Id.

Moreover, Kellam Realty Company, LLP, has its principal
place of business in Belle Haven, Virginia.

Kellam Realty

Company, LLP, does not maintain a place of business in New
Jersey, conduct business in New Jersey nor hold itself out to
the public as doing business in New Jersey.

Further, Kellam

Realty Company, LLP, does not have designated agents for
acceptance of service of process in New Jersey.

Kellam Realty

does not maintain company agents in New Jersey, does not own
real property in New Jersey and does not pay taxes to the State
of New Jersey.

Finally, Kellam Realty Company, LLP, does not

sell goods or transport goods into the State of New Jersey and
is not otherwise involved in the distribution, marketing, sale
or advertisement of any products or services specifically in New
Jersey.

Douglas K. Patterson declares that he is a partner with

Kellam Realty Company, LLC, and he currently resides in
Virginia.

He does not own property in New Jersey, does not

conduct business in New Jersey, does not pay taxes to the State
of New Jersey, and does not distribute, sell or market goods and
services in New Jersey.
“A federal court sitting in New Jersey has jurisdiction
over parties to the extent provided under New Jersey state law.”
Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir.2004)
(citations omitted).

The New Jersey long-arm statute “permits

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the exercise of personal jurisdiction to the fullest limits of
due process.” IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259
(3d Cir. 1998) (citing DeJames v. Magnificence Carriers, Inc.,
654 F.2d 280, 284 (3d Cir.1981)).

Consistent with due process,

personal jurisdiction can be established by way of specific
jurisdiction or general jurisdiction.

See Helicopteros

Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414–415, n.
8 & 9 (1984).
General jurisdiction is found where a defendant has
“continuous and systematic” contacts with the state.
Heliocopteras, 466 U.S. at 414-15.

Specific jurisdiction, in

contrast, is present where: (1) the defendant purposefully
directed its activities at the forum; (2) the litigation arises
out of or relates to at least one of the contacts; and (3) the
exercise of jurisdiction otherwise comports with traditional
notions of fair play and substantial justice. 496 F.3d at 317.
This “purposeful availment” requirement assures that the
defendant could reasonably anticipate being hauled into court in
a forum and is not subject to personal jurisdiction in a forum
as a result of “random,” “fortuitous” or “attenuated” contacts
with the forum state. See World–Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980); see also Burger King Corp.,
471 U.S. at 472, 475.

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In considering a defendant’s contacts, the actions of a
defendant’s agent may be attributed to the defendant for
personal jurisdiction purposes.

Seltzer v. IC. Optics, Ltd.,

I.C., 339 F. Supp. 2d 601, 609-12 (D.N.J. 2004).

In addition,

while jurisdiction over an employee does not automatically flow
from jurisdiction over the employer, an individual’s contacts
with the forum, made in a corporate capacity, may be credited in
the jurisdictional analysis, where those contacts support
individual liability.

Gerald Chamales Corp. v. Oki Data

Americas, Inc., 557 F. Supp. 2d 494, 504 (D.N.J. 2008); See also
Wellness Publishing v. Barefoot, 128 F. Appx. 266, 269 n.2 (3d
Cir. 2005)(indicating that, on remand, the District Court should
look to Educational Testing Servs. v . Katzman, 631 F. Supp. 550
556-59 (D.N.J. 1986)(holding that individual actions taken in
corporate capacity could be considered in jurisdictional
analysis) in determining whether the individual defendants were
“not subject to personal jurisdiction because the relevant
contacts were established in their roles as corporate
officers”).

And, under New Jersey law, “a corporate officer can

be held personally liable for a tort committed by the
corporation when he or she is sufficiently involved in the
commission of the tort.”

Route 27, LLC v. Getty Petroleum

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Marketing, Inc., No. 10-3080, 2011 WL 1256618, at *7 (D.N.J.
Mar. 30, 2011).
A party may move for dismissal of an action based on lack
of personal jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(2).

“When a defendant raises the defense of the

court’s lack of personal jurisdiction, the burden falls upon the
plaintiff to come forward with sufficient facts to establish
that jurisdiction is proper.”

Mellon Bank (East) PSFS, Nat.

Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992).

To meet

this burden, a plaintiff must establish “with reasonable
particularity sufficient contacts between the defendant and the
forum state.” Id.
declarations.

This Court may consider affidavits and

See Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287,

1302 (3d Cir. 1996).
Here, Plaintiffs have not even made allegations that could
sustain their burden of proof in demonstrating sufficient
“minimum contacts” of non-resident Defendants Kellam Realty
Company, LLP, and Douglass K. Patterson with the State of New
Jersey.

There is no allegation that Kellam Realty Company, LLP,

has its principal place of business or any meaningful contacts
whatsoever, in New Jersey.

Nor is there any allegation that

Douglass K. Patterson is a resident of New Jersey or otherwise
conducts meaningful business activities in New Jersey.

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In fact,

Plaintiffs’ Complaint admits that Kellam Realty Company, LLP,
and Douglass K. Patterson are residents of Virginia.

As such,

Plaintiffs have not sustained their initial burden of
establishing personal jurisdiction over Defendants.
Nonetheless, based upon the facts set forth in the
Affidavit of Douglass K. Patterson, a partner with Kellam Realty
Company, LLP, no facts exist to establish that general
jurisdiction exits.

Kellam Realty Company, LLP, is a Virginia

limited liability partnership with its principal place of
business in Belle Haven, Virginia, and maintains no offices in
New Jersey.

Kellam Realty Company, LLP, does not maintain a

place of business in New Jersey, does not conduct business in
New Jersey and does not hold itself out to the public as doing
business in New Jersey.

Kellam Realty Company, LLP, does not

have a designated agent for acceptance of service of process in
New Jersey, nor does it maintain company agents in New Jersey.
Kellam Realty Company, LLP, does not own property or pay taxes
in New Jersey, does not sell goods or send goods into New
Jersey, and does not conduct any advertising specifically in New
Jersey.

Likewise, Defendant Douglass K. Patterson is a resident

of Virginia.

He does not own property in New Jersey, does not

pay taxes in New Jersey and does not conduct any meaningful

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business in New Jersey.

See generally Certification of

Patterson, Docket No. 20-2.
Turning to specific jurisdiction, Plaintiffs’ Complaint
fails to allege facts sufficient to support specific
jurisdiction over Defendants.

Plaintiffs have not alleged that

Defendants purposefully availed themselves of the benefits and
protections of New Jersey such that the assertion of personal
jurisdiction would be appropriate.
in New Jersey.

The accident did not arise

The alleged acts giving rise to the claimed

liability have to do with the maintenance of the convenience
store premises allegedly owned by Kellam Realty Company, LLP, as
an out-of-possession owner/landlord under a triple-net lease
agreement – acts which occurred exclusively in Virginia.
Accordingly, for the reasons set forth above, the Court
grants the unopposed motion to dismiss the Complaint atgainst
Defendants Kellam Realty Company, LLP, and Douglass K. Patterson
for lack of personal jurisdiction.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated February 11, 2015

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