VANDEVEIRE et al v. NEWMARCH et al
Filing
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OPINION. Signed by Magistrate Judge James B. Clark on 11/15/13. (gmd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARIE VANDEVEIRE, et al.,
Plaintiffs,
v.
GEORGE WILLIAM NEWMARCH, et
al.,
Defendants.
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Civil Action No. 13-4033 (DMC)
MEMORANDUM OPINION
CLARK, Magistrate Judge
This matter comes before the Court upon Plaintiffs Marie, William and Lucille
Vandeveire’s (“Plaintiffs”) motion for leave to conduct jurisdictional discovery [Docket Entry No.
11] in response to motions to dismiss filed by both Defendant George William Newmarch
(“Newmarch”) [Docket Entry No. 9] and Jacqueline Melvin Mclean (“Mclean”) (collectively,
“Defendants”) [Docket Entry No. 6]. Defendants oppose Plaintiffs’ motion. [Docket Entry Nos.
15, 18]. The Court has fully reviewed and considered all arguments made in support of, and in
opposition to, Plaintiffs’ motion. The Court considers Plaintiffs’ motion without oral argument
pursuant to L.CIV.R. 78.1(b). For the reasons set forth more fully below, Plaintiffs’ motion is
GRANTED IN PART and DENIED IN PART, Newmarch’s motion to dismiss is
ADMINISTRATIVELY TERMINATED and it is RECOMMENDED that Mclean’s motion to
dismiss be GRANTED.
I.
Background and Procedural History
This is a negligence action, here on diversity, stemming from a three-car accident which
occurred on Interstate 95 North in North Carolina. (Compl. at 1; Docket Entry No. 1). Plaintiffs
allege that they have sustained “serious and continuing physical and emotional injuries.” (Id. at
¶26). Plaintiffs claim that Newmarch, a professional truck driver, negligently merged onto I-95,
causing Mclean to negligently swerve into Plaintiffs’ lane, resulting in a collision. (Id. at ¶¶15-16,
24). Plaintiffs have alleged that Newmarch is a resident of Florida and that Mclean is a resident of
North Carolina. (Id. at ¶¶5-6). Both Defendants have moved to dismiss Plaintiffs’ complaint on
the grounds of lack of personal jurisdiction and forum non conveniens. Plaintiffs have responded
with the instant motion, seeking to conduct limited discovery to establish a jurisdictional nexus
between the District of New Jersey and Defendants.
II.
Legal Standard
The Third Circuit has stated that although the plaintiff bears the burden of establishing
personal jurisdiction, “courts are to assist the plaintiff by allowing jurisdictional discovery unless
the plaintiffs claim is ‘clearly frivolous.’” Toys “R” Us, Inc. V. Step Two S.A., 318 F. 3d 446, 456
(quoting Massachusetts School of Law at Andover, Inc. v. American Bar Ass'n, 107 F.3d 1026,
1042 (3d Cir.1997)). As such, Courts should grant leave to conduct jurisdictional discovery
where the plaintiff “presents factual allegations that suggest ‘with reasonable particularity’ the
possible existence of the requisite ‘contacts between [the party] and the forum state.’” Id. (quoting
Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir.1992)). However,
jurisdictional discovery should not serve as “a fishing expedition based only upon bare allegations,
under the guise of jurisdictional discovery.” Nagel Rice, LLP v. Coffman, 2013 U.S. Dist. LEXIS
75517 (D.N.J. May 1, 2013) (quoting LaSala v. Marfin Popular Bank Public Co., Ltd., 410 Fed.
Appx. 474, 478 (3d Cir. 2011)).
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III.
Arguments
Plaintiffs seek limited discovery to discern “whether [Defendants] availed themselves to
New Jersey’s jurisdiction through sufficient contacts within the state.” (Plaintiffs’ Brief in Support
at 1; Docket Entry No. 11-1). Plaintiffs aver that, despite diligent efforts, they have been unable
to obtain information necessary to establish jurisdiction. With respect to Newmarch, Plaintiffs
note that Newmarch has a trucking business based in Florida and argue that “New Jersey is home
to one of the heaviest concentrations of commercial activity in the world” and further argue that
“i[t] is within the realm of reasonable possibilities that Defendant’s trucking business brought him
into and through the State of New Jersey – possibly on multiple occasions.” (Id. at 4). Plaintiffs
seek to discover “the original and final destination of Newmarch’s trip, itineraries, business
contracts and agreements, his employment as a truck driver and any existing relationships within
New Jersey’s transportation industry.” (Id.) This information, Plaintiffs submit, is necessary for
Plaintiffs to sustain their burden of establishing personal jurisdiction.
Likewise, Plaintiffs contend that jurisdictional discovery is also appropriate with respect to
Mclean and argue that granting discovery as to one defendant and not the other would be
prejudicial to Plaintiffs. (Id. at 6). In sum, Plaintiffs request 90 days for discovery and 20 days
after the conclusion of that period within which to respond to the pending motions.
Defendant Mclean has submitted an opposition to Plaintiffs’ motion.1 Mclean argues that
there exists nothing in Plaintiffs’ complaint which would “suggest that Ms. Mclean has any
contacts with the state of New Jersey.” (Mclean’s Brief in Opposition at 2; Docket Entry No. 15).
Furthermore, Mclean notes that “Plaintiff’s injuries do not arise out of any contact or activity [that
1
The Court notes that on October 7, 2013 – the return date of the instant motion – counsel for Newmarch filed a letter
joining in to Mclean’s opposition. Opposition papers were due on September 23, 2013 and as such, the Court shall
disregard same for being untimely filed. Moreover, the Court finds that the arguments made in Mclean’s opposition
are inapposite with respect to Newmarch for the reasons stated in this Opinion.
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Mclean] had with New Jersey.” (Id. at 2). As such, Mclean claims that jurisdictional discovery
“will not alter the outcome” as “there is no fact which tends to show any connection with New
Jersey.” (Id. at 1).
Plaintiffs reply by reiterating that it is “reasonable to expect contacts between [Newmarch]
and New Jersey” as “Newmarch was traveling in a commercial vehicle north on I95.” (Plaintiffs’
Brief in Reply at 1; Docket Entry No. 16). Plaintiffs then present the argument that, under the
entire controversy doctrine, there is an obligation to include both Mclean and Newmarch in the
same lawsuit. (Id. at 2). As such, Plaintiffs claim that the “discernible possibility of establishing
jurisdiction over Newmarch” is enough to keep Mclean in the case, “at least through the
conclusion of jurisdictional discovery[.]” (Id. at 3-4).
IV.
Discussion
The Court finds that Plaintiffs have not presented factual allegations that suggest with
reasonable particularity the possible existence of continuous and systematic contacts with New
Jersey with respect to Mclean. See Kinekt Design, LLC v. One Moment in Time, LLC, 2013 U.S.
Dist. LEXIS 102448 at *6 (D.N.J. July 22, 2013). Mclean is a resident of North Carolina, and the
accident occurred within the State of North Carolina. There are no facts pled which suggest that
jurisdictional discovery would lead to any facts linking Mclean to New Jersey. Additionally, the
Court finds that the entire controversy doctrine is inapplicable to the instant motion. Plaintiffs are
not being prevented from bringing their claims in one action. “In a suit with multiple defendants,
the court must have personal jurisdiction over each defendant.” Lighting One, Inc. v. Spring City
Elec. Mfg. Co., 2007 U.S. Dist. LEXIS 50019 at *5 (D.N.J. July 10, 2007) (quoting Waste Mgmt.,
Inc. v. Admiral Ins. Co., 138 N.J. 106, 649 A.2d 379, 389 (N.J. 1994)). In this regard, the
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concerns raised by Plaintiffs with respect to prejudice are without merit. As such, Plaintiffs’
motion with respect to Defendant Mclean is denied.
The Court realizes that the practical effect of denying jurisdictional discovery with respect
to Mclean essentially finds that this Court has no personal jurisdiction over her. “Once a
defendant challenges a court's exercise of personal jurisdiction over it, the plaintiff bears the
burden of establishing personal jurisdiction.” D'Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 102,
(3d Cir. 2009), citing Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001). As noted
herein, no facts have been pled which suggest that Mclean has any ties to the State of New Jersey.
As such, the Court finds that Plaintiffs have not sustained the requisite burden and shall
recommend that the District Court grant Mclean’s motion to dismiss for lack of personal
jurisdiction.
However, the Court is persuaded that jurisdictional discovery is appropriate and warranted
as to Defendant Newmarch. As Plaintiffs correctly note, New Jersey is a large hub for
commercial activity and I-95 runs through the length of the State. Newmarch is a professional
truck driver who was driving a commercial vehicle at the time of the accident. This fact makes it
reasonable to conclude that Newmarch may have some connection to this State. Moreover,
Newmarch has not submitted any substantive opposition, nor any affidavit, certification or other
argument stating that his business has no connection to New Jersey. As such, the Court finds that
jurisdictional discovery is the appropriate vehicle for determining same. However, the Court
declines to grant Plaintiffs’ request for 90 days and instead shall impose a jurisdictional discovery
period of sixty (60) days. At this time, the Court shall also administratively terminate
Newmarch’s Motion to Dismiss without prejudice, with leave to re-file at the conclusion of the
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discovery period.
V.
Conclusion
For the reasons set forth above, Plaintiffs’ motion is GRANTED IN PART and DENIED
IN PART, Newmarch’s motion to dismiss is ADMINISTRATIVELY TERMINATED and it is
respectfully RECOMMENDED that Mclean’s motion to dismiss be GRANTED. An appropriate
Order and Recommendation accompanies this Opinion.
Dated: November 15, 2013
s/ James B. Clark, III
HONORABLE JAMES B. CLARK, III
UNITED STATES MAGISTRATE JUDGE
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