Swift Transportation Companies of Arizona, LLC v. RTL Enterprises, LLC et al

Filing 31

MEMORANDUM-DECISION and ORDER - That RTL's 7 Motion to Dismiss for Lack of Personal Jurisdiction is GRANTED. That East Coast's 9 Motion to Dismiss for Lack of Personal Jurisdiction is GRANTED. That Swift's 13 Cross Motion to Amend/Correct is DENIED. Signed by Chief Judge Gary L. Sharpe on 2/3/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
SWIFT TRANSPORTATION
CO. OF ARIZONA, LLC,
Plaintiff,

1:14-cv-902
(GLS/CFH)

v.
RTL ENTERPRISES, LLC et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Bowitch, Coffey Law Firm
17 Elk Street
Albany, NY 12207

DANIEL W. COFFEY, ESQ.

FOR THE DEFENDANTS:
RTL Enterprises, LLC
Wilson, Elser Law Firm
677 Broadway - 9th Floor
Albany, NY 12207-2996

THERESA B. MARANGAS, ESQ.

East Coast Systems Engineering, Inc.
McNamee, Lochner Law Firm
677 Broadway
Albany, NY 12207-2503

JACOB F. LAMME, ESQ.
JOHN J. PRIVITERA, ESQ.

Gary L. Sharpe
Chief Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Swift Transportation Co. of Arizona, LLC commenced this
diversity action against defendants RTL Enterprises, LLC and East Coast
Systems Engineering, Inc. alleging state law claims for negligence and
breach of contract related to two separate asbestos leaks. (See generally
Compl., Dkt. No. 1, Attach. 1 at 5-11.) Pending are RTL’s motion to
dismiss for lack of personal jurisdiction, (Dkt. No. 7), East Coast’s motion to
dismiss for lack of personal jurisdiction, (Dkt. No. 9), and Swift’s cross
motion seeking leave to amend its complaint, limited jurisdictional
discovery, and/or transfer to another forum, (Dkt. Nos. 13, 16). For the
reasons that follow, defendants’ motions are granted, and Swift’s cross
motion is denied.
II. Background
A.

Facts1
On or about June 26, 2006, Swift, a Delaware limited liability

company with a principal place of business in Arizona, and East Coast, a

1

Unless otherwise noted, the facts are drawn from Swift’s complaint and presented in
the light most favorable to it.

2

Massachusetts corporation with a principal place of business in
Massachusetts, “entered into a Transportation Services Agreement . . .
whereby East Coast retained Swift to transport freight.” (Compl. ¶¶ 1, 3, 5.)
Pursuant to that agreement, East Coast was obligated to “fully indemnify
Swift for any liabilities and losses incurred as a result of the negligence of
East Coast.” (Id. ¶ 6.) In both August 2011 and July 2012, East Coast
sought for Swift to transport trailers containing barrels of asbestos from a
facility in Portland, Connecticut to Minera Enterprises, located in
Waynesburg, Ohio. (Id. ¶¶ 7-8, 14.) The facility where the trailers were
initially located belonged to RTL, a Connecticut limited liability company
with a principal place of business in Connecticut. (Id. ¶¶ 2, 7-8.) East
Coast and RTL had “a contractual relationship” whereby “East Coast [had]
retained RTL to load contents onto trailers at RTL’s facility in Portland,
Connecticut.” (Id. ¶¶ 10-11.) Thus, “RTL and/or East Coast were solely
responsible for assuring the contents contained within the trailers Swift was
being asked to haul were secured and were safe for interstate transport.”
(Id. ¶ 16.)
In both August 2011 and July 2012, in the course of transporting the
trailers, Swift drivers “parked at the Pilot Travel Center in Newburgh, New
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York,” and “noticed leaks occurring from the trailers.” (Id. ¶¶ 18, 20.) On
each occasion, the trailers were “in the possession of Swift drivers for two
hours or less when the leaks were discovered,” and, upon their discovery,
the leaks of asbestos were reported to Swift and the appropriate
governmental authorities. (Id. ¶¶ 21-23.) Swift then “took steps to
remediate the asbestos, including retaining hazmat companies to safely
clean the area and transfer the remaining contents to other trailers,” ( id.
¶ 25), causing Swift to incur expenses totaling roughly $190,000, (id. ¶¶ 2627). Swift alleges that “[t]he leaks were caused solely by the acts and
omissions of . . . [d]efendants in packing and loading the asbestos onto the
trailers.” (Id. ¶ 24.)
B.

Procedural History
This action was removed to this court from New York State Supreme

Court in Albany County on July 18, 2014. (Dkt. No. 1.) Shortly thereafter,
both RTL and East Coast filed the pending pre-answer motions to dismiss
for lack of personal jurisdiction. (Dkt. Nos. 7, 9.) In response, Swift filed its
cross motion seeking leave to file an amended complaint and transfer of
venue to the Southern District of New York. (Dkt. No. 13.)
III. Standard of Review
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When a defendant calls personal jurisdiction into question by
invoking Rule 12(b)(2), the plaintiff bears the burden of satisfying the court
that it has jurisdiction over the moving defendant. See MacDermid, Inc. v.
Deiter, 702 F.3d 725, 727 (2d Cir. 2012). In the absence of an evidentiary
hearing, the plaintiff’s “allegations in the complaint must be taken as true to
the extent they are uncontroverted by the defendant’s affidavits [and other
written materials].” Id. (quoting Seetransport Wiking Trader
Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex
Centrala Navala, 989 F.2d 572, 580 (2d Cir. 1993)).
Notwithstanding the foregoing, the court is empowered with discretion
to permit limited jurisdictional discovery to ferret out information on the
jurisdictional issue. See Jazini v. Nissan Motor Co., 148 F.3d 181, 185-86
(2d Cir. 1998). “[P]rior to discovery, a plaintiff challenged by a jurisdiction
testing motion may defeat the motion by pleading in good faith, legally
sufficient allegations of jurisdiction, i.e., by making a prima facie showing of
jurisdiction.” Id. at 184 (internal quotation marks and citations omitted).
IV. Discussion
In its motion to dismiss, RTL argues first that Swift has failed to make
out a prima facie showing of personal jurisdiction over it in this case. (Dkt.
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No. 7, Attach. 5 at 8-9.) Specifically, RTL notes that Swift’s complaint “is
devoid of any allegations (factual or otherwise) establishing personal
jurisdiction over the two foreign [d]efendants.” (Id. at 8.) Further, RTL
asserts that it is not subject to the New York long arm statute here, (id. at
9-12), and that exercising personal jurisdiction over it would not comport
with due process, (id. at 12-16), arguments that are also made by East
Coast, (Dkt. No. 9, Attach. 3 at 7-9). In response, Swift argues that it has
established that jurisdiction is proper over both defendants, (Dkt. No. 16 at
10-18), or, in the alternative, seeks limited jurisdictional discovery, ( id. at
18). Swift also seeks to amend its complaint to add a cause of action
pursuant to the Comprehensive Environmental Response, Compensation,
and Liability Act2 (CERCLA) and a common law indemnity claim, (id. at 68), and to transfer this action to the Southern District of New York, (id. at
19-20).
A.

Personal Jurisdiction
As limited by Swift’s response to defendants’ motions to dismiss, the

court’s jurisdiction is premised upon satisfaction of New York’s long arm
statute, see N.Y. C.P.L.R. § 302—in particular, the “act without/injury within
2

See 42 U.S.C. §§ 9601-9675.

6

New York” provision of N.Y. C.P.L.R. § 302(a)(3). (Dkt. No. 16 at 5, 1113); see Siegel, N.Y. Prac. § 88 at 164-71 (5th ed. 2011). Aside from
establishing jurisdiction under the forum state’s long arm statute,
jurisdiction of the defendant must not offend the constitutional guarantee to
due process. See Cont’l Indus. Grp., Inc. v. Equate Petrochemical Co., No.
13-3832-cv., 2014 WL 5066321, at *2 (2d Cir. Oct. 10, 2014).
In order to show that this court has personal jurisdiction over
defendants pursuant to C.P.L.R. § 302(a)(3)(ii), Swift must demonstrate
five elements, as laid out by the New York Court of Appeals:
First, that defendant committed a tortious act outside the State;
second, that the cause of action arises from that act; third, that the
act caused injury to a person or property within the State; fourth,
that defendant expected or should reasonably have expected the
act to have consequences in the State; and fifth, that defendant
derived substantial revenue from interstate or international
commerce.
LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214 (2000). If the New York
long arm statute would extend jurisdiction over defendants, the court must
then undertake an analysis of whether the exercise of jurisdiction comports
with federal due process. This analysis requires that each defendant have
“‘certain minimum contacts [with the forum] . . . such that the maintenance
of the suit does not offend traditional notions of fair play and substantial
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justice.’” U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d
135, 152 (2d Cir. 2001) (quoting Calder v. Jones, 465 U.S. 783, 788
(1984)). In cases where the claim “arises out of, or relates to, the
defendant’s contacts with the forum, . . . minimum contacts exist where the
defendant purposefully availed itself of the privilege of doing business in
the forum.” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305
F.3d 120, 127 (2d Cir. 2002) (internal quotation marks and citations
omitted); see LaMarca, 95 N.Y.2d at 216 (“A non-domiciliary tortfeasor has
‘minimum contacts’ with the forum State . . . if it ‘purposefully avails itself of
the privilege of conducting activities within the forum State.’” (quoting
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). As
to the “fair play and substantial justice” prong, the court must consider
several factors going to the “reasonableness” of exercising jurisdiction over
the defendants in the particular case, including:
(1) the burden that the exercise of jurisdiction will impose on the
defendant; (2) the interests of the forum state in adjudicating the
case; (3) the plaintiff’s interest in obtaining convenient and
effective relief; (4) the interstate judicial system’s interest in
obtaining the most efficient resolution of the controversy; and (5)
the shared interest of the states in furthering substantive social
policies.
Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir.
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1996) (citing Asahi Metal Indus. Co. v. Superior Court of Calif., Solano
Cnty., 480 U.S. 102, 113-14 (1987)). “Where a plaintiff makes the
threshold showing of the minimum contacts required for the first test, a
defendant must present a compelling case that the presence of some other
considerations would render jurisdiction unreasonable.” Bank Brussels
Lambert, 305 F.3d at 129 (internal quotation marks and citation omitted).
Even assuming, without deciding, that Swift could demonstrate that
New York’s long arm statute would be satisfied here, 3 the court finds that
exercising personal jurisdiction over these defendants would offend due
process, as there has been no indication that defendants “purposefully
availed” themselves of the New York forum. See Carpino v. Nat’l Store
Fixtures, Inc., 275 A.D.2d 580, 582 (3d Dep’t 2000) (“A ‘minimum contacts’
finding requires more than a reasonable expectation that a tortious foreign
act will have New York consequences; it requires the foreseeability that
3

Defendants do not appear to dispute that, as alleged, a tortious act was committed
outside of New York, or that the cause of action arises from that act. Further, even though
Swift has made no allegations with respect to defendants deriving substantial revenue from
interstate commerce, defendants do not appear to directly dispute this. Defendants do raise
arguments regarding whether the act caused injury in New York and whether they reasonably
should have expected the act to have consequences in New York, (Dkt. No. 7, Attach. 5 at 912; Dkt. No. 9, Attach. 3 at 7-9; Dkt. No. 22 at 1-3; Dkt. No. 24, Attach. 1 at 2-4), but, at this
juncture, Swift has adequately alleged an injury that occurred in New York, and, given the
geography of a trip from Connecticut to Ohio, it would appear to be reasonable for defendants
to expect their allegedly tortious act to have consequences in New York. However, as
discussed herein, this is of no moment, as Swift’s action fails on the constitutional prong of the
personal jurisdiction analysis.

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one’s product may make its way to New York coupled with evidence of a
purposeful New York affiliation.” (internal quotation marks and citations
omitted)). Swift’s primary argument appears to be that, because the only
reasonable route to take from Connecticut to Ohio entails traveling through
New York for some portion of time, it would be reasonable to exercise
personal jurisdiction over these defendants, who were tangentially involved
in the overall transportation of the asbestos to its ultimate disposal site in
Ohio. (Dkt. No. 16 at 13-16.) However, Swift has failed to address, in
response to defendants’ arguments, the lack of any apparent purposeful
availment by defendants of doing business in New York. Notably, a
“defendant’s transmission of goods permits the exercise of jurisdiction only
where the defendant can be said to have targeted the forum; as a general
rule, it is not enough that the defendant might have predicted that its goods
will reach the forum State.” J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct.
2780, 2788 (2011).
While Swift appears to be correct that the most—and, arguably,
only—reasonable route to be taken by its drivers required entry into New
York, there is no evidence, or even an allegation, that either defendant took

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any affirmative act to target New York. 4 See World-Wide Volkswagen
Corp., 444 U.S. at 295 (finding personal jurisdiction improper where it was
based on “the fortuitous circumstance that a single . . . automobile, sold
[outside of the forum state], happened to suffer an accident while passing
through [the forum state]”); Bridgeport Music, Inc. v. Still N The Water
Publ’g, 327 F.3d 472, 478 (6th Cir. 2003) (“[P]urposeful availment is . . .
something more than a passive availment of [the forum state’s]
opportunities.” (internal quotation marks and citations omitted)). The only
contact that defendants are alleged to have had with New York, and New
York’s only connection to the lawsuit, is that the asbestos, which
defendants were responsible for loading and safely containing, was
discovered to be leaking at a moment in time when Swift’s trucks happened
to be located in New York. (Compl. ¶¶ 18, 20.) However, there is no
indication that either RTL or East Coast has made an effort to “target” New
York, or that the contact giving rise to this action was anything other than

4

To the contrary, RTL has provided evidentiary support for its assertion that it has
initiated no business contacts with New York, indicating that it does not ship any materials to
disposal facilities within New York, is not registered to do business in New York, does not
maintain an office, bank account, or telephone number in New York, and does not solicit any
business from New York. (Dkt. No. 7, Attach. 4 ¶¶ 7, 19, 21-25.) Although East Coast has not
provided a similar affidavit, it instead notes the absence of any allegations with respect to “any
activity of East Coast in New York,” (Dkt. No. 9, Attach. 3 at 2), and Swift has made no such
allegations in support of personal jurisdiction, (Dkt. No. 13, Attach. 1; Dkt. No. 16).

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fortuitous or incidental. See Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014)
(“Due process requires that a defendant be haled into court in a forum
State based on his own affiliation with the State, not based on the random,
fortuitous, or attenuated contacts he makes by interacting with other
persons affiliated with the State.” (internal quotation marks and citation
omitted)); Guinness Import Co. v. Mark VII Distribs., Inc., 153 F.3d 607,
614 (8th Cir. 1998) (“‘Purposeful availment’ means that the defendant’s
contacts with the forum state must not be random, fortuitous, attenuated, or
the result of unilateral activity of . . . another party.” (citing Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)); Renner v. Lanard Toys
Ltd., 33 F.3d 277, 282 (3d Cir. 1994) (“The contact must be purposeful,
rather than incidental.”).
The only argument Swift offers with respect to the due process test is
that, “[w]hen the ‘product’ involved is a hazardous substance or waste, the
court should consider the nature of the substance involved in determining
the expectation of the defendant to be haled into court in another state.”
(Dkt. No. 16 at 14-16.) However, Swift does not cite any authority that
would be binding on this court for such a proposition, instead relying
primarily on one case from the District of Rhode Island. See O’Neil v.
12

Picillo, 682 F. Supp. 706 (D.R.I. 1988). Notably, although in a concurring
opinion, the Second Circuit has expressly stated in response to a similar
argument that “neither the New York Court of Appeals nor th[e Second
Circuit] have ever so held,” indicating that “[t]he hazardous materials
doctrine, which is based on a products liability theory, does not support the
loosening of the requirements for establishing personal jurisdiction.” City of
N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 150 n.5 (2d Cir. 2011)
(Wesley, J., concurring). Swift accurately states the requirement that a
defendant’s acts be “purposefully directed” toward the forum state, but then
provides no argument or explanation as to how either defendant here has
contacts with New York that constitute purposeful availment of the New
York forum. (Dkt. No. 16 at 16.) As it is Swift’s burden to establish that this
court may properly exercise personal jurisdiction over each defendant, see
MacDermid, 702 F.3d at 727, it has not met that burden here, and
defendants’ motions must be granted. 5
5

Although not indicated in Swift’s notice of motion, (Dkt. No. 13), in its memorandum
submitted in support of its cross motion and in opposition to defendants’ motions to dismiss,
Swift appears to request that it be allowed limited jurisdictional discovery, (Dkt. No. 16 at 18).
However, when a plaintiff has not set forth a prima facie case of personal jurisdiction, the court
does not abuse its discretion in denying jurisdictional discovery. See Frontera Res. Azerbaijan
Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 401 (2d Cir. 2009) (noting that a
district court “is typically within its discretion to deny jurisdictional discovery when the plaintiff
[has] not made out a prima facie case for [personal] jurisdiction” (internal quotation marks and
citation omitted)); Jazini v. Nissan Motor Co., 148 F.3d 181, 186 (2d Cir. 1998). Further, Swift

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B.

Cross Motion to Amend and Transfer Venue
Given this court’s determination that it lacks personal jurisdiction over

these defendants, Swift’s request that the court transfer venue of this
action to the Southern District of New York, (Dkt. No. 16 at 19-20), is
denied, as that court would suffer the same jurisdictional deficiencies as
this court. Similarly, Swift’s motion “for leave to file an amended complaint
adding causes of action under CERCLA and common law indemnity,” (Dkt.
No. 16 at 5, 6-8), is also denied, because such amendment would not cure
the court’s lack of personal jurisdiction over defendants. See Lucente v.
Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002) (“An amendment
to a pleading is futile if the proposed claim could not withstand a motion to
dismiss.”); Hunter v. Deutsche Lufthansa AG, 863 F. Supp. 2d 190, 202
(E.D.N.Y. 2012) (denying motion to amend where “the addition of claims
against [the defendants] would likewise be unable to withstand a motion to
dismiss for lack of personal jurisdiction”).
V. Conclusion

does not offer any justification for such discovery in this case, and in fact indicates that it seeks
“discovery from East Coast and RTL limited to the issues relevant to CPLR 302(a)(3).” (Dkt.
No. 16 at 18.) As discussed above, Swift’s assertion of jurisdiction here fails because it has
not demonstrated purposeful availment by defendants of the New York forum, and therefore,
discovery limited to issues going to the satisfaction of the New York long arm statute would not
save Swift’s claims here.

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WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that RTL’s motion to dismiss (Dkt. No. 7) is GRANTED;
and it is further
ORDERED that East Coast’s motion to dismiss (Dkt. No. 9) is
GRANTED; and it is further
ORDERED that Swift’s cross motion (Dkt. No. 13) is DENIED; and it
is further
ORDERED that Swift’s complaint (Dkt. No. 1, Attach. 1 at 5-11) is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
February 3, 2015
Albany, New York

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