T.J. MCDERMOTT TRANSPORTATION CO., INC. v. CUMMINS, INC. et al
OPINION. Signed by Judge William H. Walls on 1/9/2018. (JB, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
T.J. McDERMOTT TRANSPORTATION
CO., INC., DEMA$E WAREHOUSE
SYSTEMS, INC., HEAVY WEIGHT
ENTERPRISES, INC., P&P ENTERPRISES
CO., LLC, YOUNG’S AUTO TRANSPORT,
INC., HARDWICK ALLEN, AND JOSE
Civ. No. 14-04209 (WHW)(CLW)
CUMMINS, INC., AND PACCAR, INC.
d/b/a PETERBILT MOTOR COMPANY
AND KENWORTH TRUCK COMPANY,
Walls, Senior District Judge
FACTUAL AND PROCEDURAL HISTORY
In this putative class action, Plaintiffs allege that Cummins, Inc. (“Cummins”) and
PACCAR, Inc. (“PACCAR”) (collectively, “Defendants”) manufactured and sold PACCAR
tractor-trailer trucks equipped with faulty Cummins engines. Plaintiffs seek to represent
members of classes and sub-classes in six states, including New Jersey, asserting claims under
state consumer-fraud laws and for breach of express warranty. A full factual background is
detailed in the Court’s June 7, 2016 opinion granting in part and denying in part PACCAR’s
motion to dismiss for failure to state a claim. ECF No. 96.
The following facts are relevant to this motion. New Jersey-based Plaintiff T.J.
McDermott Transportation Co. (“T.J. McDermott”) filed a single-plaintiff amended complaint
on July 2, 2014, invoking the Court’s diversity jurisdiction and alleging that tractors it purchased
NOT FOR PUBLICATION
from Defendants were equipped with defective engines. ECF No. 17. Defendants filed a motion
to dismiss that complaint, which the Court partially granted and partially denied on March 11,
2014. ECF Nos. 37, 38. A Second Amended Complaint (“SAC”), filed on January 8, 2016,
added plaintiffs DeMase Warehouse Systems; Heavy Weight Enterprises, Inc.; P&P Enterprises
Co.; Young’s Auto Transport, Inc.; Allen Hardwick; and Jose Vega. ECF No. 72. Cummins
filed an answer on February 5, 2016, ECF No. 76, and on the same day PACCAR moved to
partially dismiss the SAC. ECF No. 77. On June 7, 2016, the Court granted in part and denied
in part PACCAR’s motion, and granted Plaintiffs leave to further amend their complaint to
specify the location of the activity alleged in Count Six of the SAC. ECF No. 96. Plaintiffs did
so in a September 6, 2016 Third Amended Complaint (“TAC”), correcting the deficiencies in
Count Six and revising the definition of the “Subject Engines” to include both the 2010 ISX15
engine named in the SAC, and “later model years.” ECF No. 104. Cummins responded to the
TAC on October 7, 2016 with a motion to strike the portion of the TAC adding the language
“later model years” under Rule 12(f). ECF No. 114. The Court granted Cummins’s motion on
January 17, 2017. ECFNo. 127.
Cummins now moves under Federal Rules of Civil Procedure 1 2(b)(2) and 1 2(b)(6) to
dismiss Counts Three through Nine of the TAC, asserted by out-of-state plaintiffs. ECF No.
130. Generally, Cummins asserts that (i) it is not subject to personal jurisdiction in New Jersey
regarding these claims; and (ii) Counts Three and Four, asserted by plaintiff Jose Vega, must be
dismissed because Vega did not purchase a tractor equipped with a Subject Engine. Id. In
opposition, Plaintiffs (1) claim that Cummins’s Rule 12(b)(2) motion should be denied because
Cummins has waived its personal-jurisdiction defense; and (ii) state their intention to dismiss
Plaintiff Vega’s claims without prejudice. ECF No. 140. Given Plaintiffs’ stated intention to
NOT FOR PUBLICATION
dismiss Vega’s claims, the Court addresses only Cummins’ s 1 2(b)(2) motion. Decided without
oral argument under Federal Rule of Civil Procedure 78, Cummins’s motion is denied.
Under Federal Rule of Civil Procedure 1 2(b)(2) a court may dismiss an action for lack of
personal jurisdiction. A court may exercise personal jurisdiction over non-resident defendants as
provided by the long-ann jurisdiction statute of the state where the court sits. See 0 ‘Conner v.
Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007). New Jersey’s long-arm statute
permits jurisdiction over a non-resident defendant to the extent permitted by the Constitution’s
Due Process Clause. CarteretSav. Bank, FA v. Shushan, 954 f.2d 141, 145 (3d Cir. 1992).
A Rule 12(b)(2) defense can be waived. Rule 12(g) requires that, “[e]xcept as provided
in Rule 12(h)(2) or (3), a party that makes a [Rule 12 motion] must not make another [Rule 12
motion] raising a defense or objection that was available to the party but omitted from its earlier
motion.” Fed. R. Civ. P. 12(g). Rule 12(g) “contemplates the presentation of an omnibus pre
answer motion in which defendant advances every available Rule 12 defense and objection he
may have that is assertable by motion.” 5 Charles Alan Wright & Arthur R. Miller, Federal
Practice & Civil Procedure
§ 1384 (3d ed.) (hereinafter “Wright & Miller”). It follows that a
personal-jurisdiction defense is waived if not included in a preliminary Rule 12 motion or, if no
such motion is made, the defense is not included in the defendant’s responsive pleading. See
Fed. R. Civ. P. 12(h)(1).
One “significant qualification” to the waiver rule, however, is that “a party is only
required to consolidate Rule 12 defenses and objections that are ‘then available to the party,”
and thus “is not precluded from making a second motion based on a defense that he or she did
not have reasonable notice of at the time that party first filed a motion to dismiss or on a defense
NOT FOR PUBLICATION
that became available only after a motion had been made under Rule 12.” Wright & Miller
1388 (quoting Notes of Advisory Committee on Rules, 1946 Amendment); see also Jewett v.
IDT Corp., 200$ WL 508486 at *2 (D.N.J. Feb. 20, 2008) (noting Rule 12(g) “does not preclude
the filing of a second motion pursuant to Rule 12 where the defense or objection was not
available at the time of the filing of the initial motion”).
1. The Parties’ Arguments.
Cummins first argues that it is not subject to general jurisdiction in New Jersey because it
neither is incorporated nor has its principal place of business in the state, and thus is not at
“home” in this district. ECF No. 130 at 7. It next contends that specific jurisdiction is also
lacking, because Counts Three through Nine of the TAC contain no “allegations suggesting that
any of the nonresident plaintiffs’ claims have anything to do with Cummins’s conduct in New
Jersey.” Id. at 8. According to Cummins, those causes of action do not “arise from
[Cummins’ s] forum related activities,” because “none of the Plaintiffs claim to have purchased
their trucks in New Jersey, or allege any conduct on the part of Cummins in New Jersey,” Id. at
1, and Plaintiffs have thus failed to allege sufficient “minimum contacts with the state” to
establish specific jurisdiction over Cummins. N. Penn. Gas Co. v. Corning Nat. Gas Corp., 897
F.2d 687, 690 (3d Cir. 1990).
Plaintiffs respond not by disputing the substance of Cummins’s personal-jurisdiction
argument, but instead by claiming that Cummins has missed its opportunity. Plaintiffs contend
that by first filing a Rule 12(f) motion to strike portions of the TAC, Cummins waived its
personal-jurisdiction defense under Rule 12(g), which “mandates that parties consolidate all their
pre-answer motions and file them together.” SEC v. Lucent, 2006 WL 2168789, at *5 (D.N.J.
NOT FOR PUBLICATION
June 20, 2006); see Fed. R. Clv. P. 12(g) (“Except as provided in Rule 12(h)(2) or (3), a party
that makes a [Rule 12 motion] must not make another [Rule 12 motion] raising a defense or
objection that was available to the party but omitted from its earlier motion.”). Plaintiffs point
out that Cummins’s personal-jurisdiction defense first arose after Plaintiffs filed their SAC,
which introduced the out-of-state plaintiffs’ claims. ECF No. 140 at 3. Cummins answered the
SAC by, among other things, denying that personal jurisdiction existed. ECF No. 76 at ¶ 13.
Cummins did not, however, deny the same personal-jurisdiction allegation in the TAC. Instead,
it chose to move under Rule 12(f) to strike certain language added by Plaintiffs. ECF No. 114.
It follows, according to Plaintiffs, that “Cummins has waived personal jurisdiction by not having
made the claim in its first Rule 12 motion.” ECF No. 140 at 4. Plaintiffs further argue that
Cummins has waived its personal-jurisdiction defense through its “extensive participation” in
this case, including its production of “thousands of pages of documents in response to Plaintiffs’
document demands.” Id. at 7.
In reply, Cummins argues for the first time that information it learned in discovery
revealed—or at least confirmed—that it had a viable personal-jurisdiction defense. See ECF No.
141. Cummins argues that it did not have sufficient information to support its personaljurisdiction defense at the time the SAC and TAC were filed because they “did not articulate
where the out-of-state plaintiffs purchased their engines, and the out-of-state plaintiffs likewise
had not produced the sales records associated with the transactions that were referenced in their
SAC.” Id. at 1—2. Without information regarding where the out-of-state plaintiffs purchased
their engines, Cummins claims its personal-jurisdiction defense was not yet available. Instead,
Cummins contends that it “raised its jurisdictional defense when it had reasonable notice of the
defense and sufficient information to prevail,” which occurred after Plaintiffs “finally started
NOT FOR PUBLICATION
producing the documents referenced” in their SAC and TAC. Id. at 2. According to Cummins,
because it “was not privy to point of sale information for the engines in this case,” it was “reliant
on discovery to ascertain where the plaintiffs purchased their vehicles,” and those documents
“showed that the transactions did not occur in New Jersey and that the out-of-state claims have
no connection to New Jersey whatsoever.” Id. at 2—3.
Cummins also argues that its participation in this case does not support a finding of
waiver, which occurs where a party “actually litigates the underlying merits or demonstrates a
willingness to engage in extensive litigation in the forum.” In re Asbestos Prods. Liab. Litig., 661
Fed. Appx. 173, 177 (3d Cir. 2016). It notes various delays in obtaining discovery from
Plaintiffs, and claims that such discovery allowed it to make the motion to dismiss at issue here.
Cummins further contends that its participation in discovery and case management “falls far
short of the ‘actively litigating on the merits’ sufficient to imply a waiver,” observing that
Cummins has not deposed any of the out-of-state plaintiffs or made any motion for summary
judgment on their claims, and that not all plaintiffs have even responded to Cummins’s discovery
requests. ECF No. 141 at 6.
It is clear from Rule 12(g) and the pleadings that, if Cummins’s Rule 12(b)(2) defense
was “available” at the time of Cummins’s earlier motion to strike, it cannot be asserted now.
Rule 12(g) provides that “a party that makes a motion under this rule must not make another
motion under this rule raising a defense or objection that was available to the party but omitted
from its earlier motion.” Fed. R. Civ. P. 12(g). After Plaintiffs’ most recent pleading (the TAC),
Cummins chose to respond with a Rule 12(f) motion to strike. A Rule 12(f) motion to strike is
plainly “a motion under [Rule 12]” that triggers waiver under Rule 12(g), and none of Rule
NOT FOR PUBLICATION
12(h)’s exceptions to the waiver rule apply here. See Lucent, 2006 WL 2168789, at *5 (noting
that Rule 12(g) “mandates that parties consolidate all their pre-answer motions and file them
together”). It follows that if Cummins’ s personal-jurisdiction argument was “available” when
Cummins made its motion to strike, it has been waived.
The Court finds that Cummins’ s personal-jurisdiction defense was “available” when it
made its Rule 12(f) motion, and is now waived. Cummins cites various authorities for the
proposition that a defendant may assert a Rule 12 defense in response to amended pleadings
containing new matter giving rise to a Rule 12 defense that was not previously available. See
ECF No. 141 at 4. But those citations miss the point: this is Cummins’s second Rule 12 motion
in response to Plaintiffs’ TAC, which is plainly disallowed under Rule 12(g). Instead, Cummins
claims that new information obtained via discovery is, for waiver purposes, the same as new
information alleged in an amended pleading.
Cummins’s discovery-based argument, appearing for the first time in its reply brief, rings
hollow in light of its opening-brief personal-jurisdiction argument that dismissal is proper
because the TAC contains no “allegations suggesting that any of the nonresident plaintiffs’
claims have anything to do with Cummins’s conduct in New Jersey.” ECF No. 130 at 8. That
contention relies on the bareness of the pleadings, not on any facts learned or documents
obtained in discovery. The fact that Cummins’s opening-brief arguments rely only on pleading
inadequacies demonstrates that its personal-jurisdiction defense was “available” at the time of its
Rule 12(f) motion—Cummins could have filed the exact same opening brief without ever
obtaining a single document in discovery. Moreover, even after claiming in reply that its
personal-jurisdiction defense is based on additional information obtained in discovery,
Cummins’s motion still relies on the bareness of Plaintiffs’ pleadings—neither Cummins’s
NOT FOR PUBLICATION
opening brief nor its reply proffers any evidence in the form of declarations or exhibits showing
where the out-of-state plaintiffs purchased their Cummins engines.
Cummins relies onAmbriz v. Coca-Cola Co., 2014 WL 296159 (N.D. Ca. Jan. 27, 2014),
a putative class action involving alleged labor law violations, to argue that information obtained
in discovery can revive a party’s ability to raise previously unasserted Rule 12 defenses. There,
Coca-Cola moved to dismiss Ambriz’s complaint for improper venue under Rule 12(b)(3), and
Ambriz argued in opposition that Coca-Cola had waived its Rule 12(b)(3) defense by first
moving to dismiss under Rule 12(b)(6). Id. at *2. Coca-Cola responded that its improper-venue
defense was not “available” when it made its Rule 12(b)(6) motion because (1) the complaint was
silent regarding Ambriz’s residence and location of employment with Coca-Cola; and (ii) CocaCola did not learn Ambriz’s residence or location of employment until afier Coca-Cola made its
first motion to dismiss. Coca-Cola eventually learned the pertinent information from plaintiffs
counsel, which it confirmed by checking its internal employment records. Id. at * 1. Finding that
Ambriz’s “omissions about these central venue facts, rather than any lack of diligence on the part
of Coca Cola, were the genesis of Coca-Cola’s need to file successive motions to dismiss,” the
court declined to find that Coca-Cola had waived its improper-venue defense. Id. at *2.
Ambriz does not aid Cummins for a number of reasons. First, unlike Cummins, the
defendant in Ambriz supported its contention that its Rule 1 2(b)(3) defense was not previously
“available” with supporting evidence in the form of declarations. Id. at * 1. And it did so in its
opening brief, not in reply. See ECF No. 22, 13-cv-03539 (N.D. Ca. 2013). Second, Ambriz’s
sole citation in denying the plaintiffs waiver argument is to Glater v. Eli Lilly & Co., 712 F.2d
735 (1st Cir. 1983). In Glater, the plaintiff alleged in her complaint that she was a New
Hampshire resident. When Eli Lilly learned in discovery that Glater was, in fact, a resident of
NOT FOR PUBLICATION
Massachusetts, it moved to dismiss for lack of personal jurisdiction. Glater responded by
arguing that because Eli Lilly had failed to raise the defense in its answer, it was waived under
Rule 12(g). Id. at 738. Finding that “the defense was not originally available to Eli Lilly
because Glater’s complaint did not put it on notice that her New Hampshire domicile was at least
questionable,” the court held that Eli Lilly “could not waive a defense involving facts of which it
was not, and could not have been expected to have been, aware.” Id. Citing Glater, the court in
Ambriz stated that it is “unwilling to find waiver where both the original and amended
complaints failed to put Defendant on notice of Ambriz’s true residence and work history.”
Ambriz, 2014 WL 296159 at *2.
The Glater outcome was driven by the fact that the complaint misled the defendant into
believing that there was personal jurisdiction based on facts that turned out to be untrue. In other
words, it was not the absence or vagueness ofjurisdiction-related allegations in the complaint
that led the Glater court to refuse to find waiver, it was the presence of incorrect factual
allegations that the defendant could not know to be false. See Hartling v. Woodloch Pines, Inc.,
1998 WL 575138 (S.D.N.Y. Sept. 8, 1998) (noting that “[t]he exception in Glater came in
response to facts far different from those here” because “the complaint affirmatively misled the
defendants into believing that there was personal jurisdiction premised upon facts that turned out
to be untrue,” while in Hartling, “by contrast, the complaint did not allege facts that were untrue
that misled defendants into believing that there were no grounds for an objection to personal
jurisdiction or improper venue”).
That is not the case here, because the TAC put Cummins on notice of its personal
jurisdiction defense. The TAC’s jurisdictional statement contains vague, boilerplate statements
about Cummins’s business ties to New Jersey and, as Cummins points out in its opening brief, it
NOT FOR PUBLICATION
contains “no allegations suggesting that any of the nonresident plaintiffs’ claims have anything
to do with Cummins’ conduct in New Jersey.” ECF No. 130 at 8. Plaintiffs’ personaljurisdiction allegations were sufficient to put Cummins on notice of its defense, a conclusion that
is only reinforced by the fact that Cummins’s opening-brief arguments in support of dismissal
relied exclusively on the bareness of the pleadings. Because Cummins made a Rule 12(f) motion
to strike after Plaintiffs filed the TAC, and because its personal-jurisdiction defense was
“available” at that time, it has waived its personal-jurisdiction defense under Rule 12(g), and the
Court need not consider Plaintiffs’ other waiver arguments.
Defendant’s Rule 12(b)(2) motion to dismiss is denied. An appropriate order follows.
States District Court Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?