Pando et al v. Barberwind Turbines LLC et al
Filing
82
ORDER denying 61 Motion to Dismiss, as more fully set out. Signed by Honorable David L. Russell on 8/13/19. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JOSE PANDO and MARIE
PANDO,
)
)
)
Plaintiffs,
)
)
v.
)
)
BARBERWIND TURBINES, LLC, )
BARBERWIND, LLC,
)
GERALD L. BARBER,
)
SPECTRUM ENGINEERING
)
SERVICES, INC., OF GREENVILLE )
CAROLINA INTEGRATED
)
SOLUTIONS, LLC,
)
)
Defendants.
)
)
SPECTRUM ENGINEERING
)
SERVICES INC., OF GREENVILLE, )
)
Defendant/Third Party Plaintiff )
)
v.
)
)
WISDOM RIDES, INC. and
)
YANCEY CRANES SERVICES, LLC )
)
Third Party Defendants.
)
CIV-17-1062-R
ORDER
Before this Court is Defendant Carolina Integrated Solutions (“CIS”) Motion to
Dismiss asserting that the Court lacks personal jurisdiction over this non-resident
Defendant. (Doc. 61) Plaintiffs responded to the motion, conceding the lack of general
personal jurisdiction but asserting sufficient minimum contacts for the exercise of specific
jurisdiction over CIS. (Doc. No. 63). Defendant filed a Reply in support of its request for
dismissal. (Doc. No. 64). The matter is fully briefed and at issue. For the reasons stated
herein, the Court DENIES Defendant’s motion.1
Plaintiffs filed this products liability action against Defendant CIS and the other
Defendants after Mr. Pando was injured when a wind turbine he was disassembling,
allegedly at the direction of Defendant Gerald Barber, collapsed. Plaintiffs allege the
turbine was “designed, built and/or sold by Defendants in Hooker, OK, at the direction of
Gerald L Barber” (Doc No. 54, ¶ 4).2 Defendant CIS, a limited liability company whose
sole member is a Georgia corporation, is one of the “Defendants” allegedly engaged in the
design and building of the turbine.3
Defendant asserts that it has no employees, representatives, or offices in Oklahoma.
CIS does not do business in Oklahoma, nor does it advertise here. It has not performed
services for anyone in Oklahoma, and, as it relates to this case, although Defendant CIS
admits it fabricated certain parts for the turbine constructed by Mr. Barber, it shipped its
parts within the state of South Carolina to Carbures, the non-party blade manufacturer, in
Greenville, South Carolina, which assembled the blades. CIS asserts that it did not
participate in the design, engineering, assembly or disassembly of the turbine at issue.
Rather, it is a custom metal fabrication company that builds products according to customer
design. (Doc. No. 61-1, ¶ 4). CIS asserts via affidavit of Scott Robinson, Executive Vice
In the motion, which is premised on Rule 12(b)(2), Defendant notes that the allegations are all directed at
“defendants” collectively, with no specific allegations naming Defendant CIS. Defendant CIS, however, did not seek
dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).
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2
Second Amended Complaint, second numbered paragraph 4.
The Court previously concluded that Plaintiffs’ jurisdictional allegations were insufficient to confer subject matter
jurisdiction on this Court, because they had not alleged the domicile of the members of the limited liability company
Defendants. Plaintiff responded to the Court’s show cause order and has established that the parties are diverse.
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2
President of CIS, that it was retained by Gerald Barber to fabricate a Hub Connection
Assembly, Mid Hub and Tip Side Connection Assemblies and Tip Assembly, and that all
related work was completed in South Carolina. (Doc. No. 61-1, ¶¶ 9-10). Mr. Robinson
avers he was in Oklahoma, “at the location where the turbine was constructed two times
before the incident which is the subject of this lawsuit. Once to get a better understanding
of the scope of the project and determine if the customer would need the services of CIS
for future projects and once to inspect some broken welds.” (Id., ¶ 14). He does not identify
the date of either of his visits to Oklahoma but indicates both pre-dated the July 17, 2017
collapse of the turbine.4
Plaintiff does not contest many of Defendant’s jurisdictional allegations, but he
nonetheless insists that this Court has personal jurisdiction over Defendant, in part because
CIS knew the parts it welded were to be installed on a turbine being constructed in
Oklahoma and because a representative of CIS visited Oklahoma twice -- once to inspect
welds -- and the collapse of the turbine was the result of improper design of the weld
connection.5
When a defendant contests the court’s jurisdiction, ‘“plaintiff bears the burden of
establishing personal jurisdiction over the defendant.”’ See Kuenzle v. HTM Sport-Und
Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir. 1996) (quoting Behagen v. Amateur
According to interrogatory responses provided to Plaintiff by co-Defendants Barberwind Turbines, LLC,
Barberwind, LLC, and Gerald L. Barber, “Scott Robinson . . . visited Oklahoma sometime before the First Incident to
inspect cracking around one of Carolina’s welds. Mr. Robinson concluded that the cracking was not a product of
improper welding work and left.” (Doc. No. 63-6, p. 2).
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5
Plaintiffs refer to two incidents, the first on June 10, 2017 when a turbine rotor collapsed during construction and
the second on June 19, 2017, when the entire rim collapsed during disassembly injuring Mr. Pando.
3
Basketball Ass’n, 744 F.2d 731, 733 (10th Cir. 1984), cert. denied, 471 U.S. 1010 (1985)).
In the preliminary stages of litigation, the plaintiff’s burden is to establish a prima facie
case that jurisdiction exists. Old Republic Ins. Co. v. Cont’l Motors, Inc., 877 F.3d 895,
903 (10th Cir. 2017). The Court must accept well-pled factual allegations of the complaint
as true unless the defendant contradicts those allegations via affidavit. Behagen, 744 F.2d
at 733. If the parties’ evidence is conflicting, factual disputes are resolved in the plaintiff’s
favor. Id.
The Court follows state law in determining the outer limits of its jurisdiction over
persons. Daimler AG v. Bauman, 571 U.S. 117, 125 (2014). Oklahoma’s long-arm statute
extends jurisdiction to the fullest extent allowed by the Due Process Clause of the
Fourteenth Amendment. Okla. Stat. tit. 12 § 2004(F). Under the Due Process Clause, this
Court may exercise jurisdiction over a defendant if (1) “the defendant purposefully
established minimum contacts” with the forum, and (2) the “assertion of personal
jurisdiction would comport with [traditional notions of] fair play and substantial justice.”
Old Republic, 877 F.3d at 903 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462,
476 (1985), quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 317(1945)).
There are two types of personal jurisdiction -- general and specific. Plaintiff does
not argue that Defendant CIS’s contacts with Oklahoma are sufficient to support general
personal jurisdiction. Accordingly, the Court’s inquiry in this case is case specific, wherein
it inquires (1) did defendant purposefully direct its activities at the forum state; (2) do
plaintiffs’ claims arise out of those activities; and (3) would the exercise of jurisdiction be
reasonable. Id. at 904-05 (citations omitted). Defendant’s suit-related conduct must have
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created a substantial connection with the forum state. Walden v. Fiore, 571 U.S. 277, 284
(2014).
As stated above, the threshold inquiry for specific jurisdiction is whether Defendant
reached out to the forum—that is, whether Defendant “purposefully directed its activities
at residents of the forum state.” Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d
1063, 1071 (internal quotation marks omitted) (citing Burger King, 471 U.S. at 472); see
also Bell Helicopter Textron, Inc. v. Heliqwest Int’l, Ltd., 385 F.3d 1291, 1296 (10th Cir.
2004) (“To support specific jurisdiction, there must be ‘some act by which the defendant
purposefully avails itself of the privilege of conducting activities within the forum State,
thus invoking the benefits and protections of its laws.’” (quoting Hanson v. Denckla, 357
U.S. 235, 253 (1958))). ‘“[P]urposeful direction’ has three elements: ‘(a) an intentional
action . . . that was (b) expressly aimed at the forum state . . . with (c) knowledge that the
brunt of the injury would be felt in the forum state . . . .’” Newsome v. Gallacher, 722 F.3d
1257, 1264–65 (10th Cir. 2013) (ellipsis original) (quoting Dudnikov, 514 F.3d at 1072).
As it relates to products liability,
[t]he requirement of purposeful availment . . . precludes personal jurisdiction
as the result of random, fortuitous, or attenuated contacts. Although it is
foreseeable that a product might travel to a forum state, such foreseeability
is not a sufficient benchmark for personal jurisdiction under the Due Process
Clause. The foreseeability that is critical to due process analysis is not the
mere likelihood that a product will find its way into the forum State. Rather,
it is that the defendant’s conduct and connection with the forum State are
such that he should reasonably anticipate being haled into court there.
Monge v. RG Petro-Machinery (Group) Co., 701 F.3d 598, 613 (quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980) (quotation marks, additional
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citations, and brackets omitted)); see also Bell Helicopter, 385 F.3d at 1296 (“Generally
speaking, specific jurisdiction must be based on actions by the defendant and not on events
that are the result of unilateral actions taken by someone else.”) The Court finds that
Defendant’s knowledge that the parts it manufactured and provided to a third party for use
in a turbine to be erected in Oklahoma does not itself support a finding of personal
jurisdiction.
However, this knowledge coupled with the visits Mr. Robinson made to Oklahoma
in conjunction with the turbine project lead the Court to conclude at this stage that Plaintiff
has sufficiently established that Defendant CIS purposely directed its activities at
Oklahoma. Although CIS contends that Mr. Robinson’s visit to Oklahoma for the purpose
of inspecting broken welds does not provide a basis for exercising personal jurisdiction,
the Court finds that this visit permits Plaintiffs to make their prima facie case for the
exercise of specific personal jurisdiction, because Defendant availed itself of this
jurisdiction by sending a representative to inspect the work it performed and shipped within
South Carolina and because Defendant should have anticipated that if the welds failed, the
brunt of the injury would be felt in Oklahoma.6
Turning to the second inquiry, do Plaintiffs’ claims arise out of CIS’s contacts with
the Oklahoma? Again, the Court finds that at this stage Plaintiff has sufficiently established
that Plaintiff’s injuries, allegedly at least partially the result of defective welding by CIS,
are related to Mr. Robinson’s pre-incident visit to Oklahoma where he inspected cracks
The Pandos are residents of Kansas, but the failure and Mr. Pando’s injuries occurred in Oklahoma where he was
working at the time.
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near the CIS work. The Tenth Circuit has enunciated two tests upon which a plaintiff may
establish that claims arise out of or relate to a defendant’s forum contacts− the “proximate
cause” approach and the “but-for causation” approach. Newsome, 722 F.3d at 1269. In
Newsome, the court declined to choose one test over the other, noting that the plaintiff
therein satisfied the more onerous proximate cause test. Under the but-for approach, “‘any
event in the causal chain leading to the plaintiff’s injury is sufficiently related to the claim
to support the exercise of specific jurisdiction.’ Id. (internal quotation marks
omitted)(quoting Dudnikov, 514 F.3d at 1078). The proximate-cause approach “‘is
considerably more restrictive and calls for courts to examine whether any of the
defendant’s contacts with the forum are relevant to the merits of the plaintiff’s claims.’”
Id. at 1269–70 (quoting Dudnikov, 514 F.3d at 1078)(internal quotation marks omitted).
Despite their differences, both approaches require a “true causal element” between a
defendant’s forum contacts and a plaintiff’s claim. Shrader v. Biddinger, 633 F.3d 1235,
1246 n.8 (10th Cir. 2011) (citing Dudnikov, 514 F.3d at 1078-79). Similarly, this Court
need not decide which test is appropriate, because Defendant’s contact with the forum state,
specifically inspection of the weld sites by Mr. Robinson, is relevant to the merits of
Plaintiff’s claims, which apparently in part will be premised on alleged defects in CIS’s
work. Therefore, the Court finds that Plaintiffs have met their obligation at this stage to
establish a prima facie case as to the second inquiry in the specific personal jurisdiction
arena.
Plaintiffs have carried their burden of establishing that Defendant CIS purposefully
directed its conduct at Oklahoma and that this lawsuit arose out of CIS’s contact with the
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state. Therefore, the burden shifts to Defendant to “present a compelling case that the
presence of some other considerations would render jurisdiction unreasonable.” Dudnikov,
514 F.3d at 1080 (internal quotation marks and citation omitted). Defendant presents no
arguments in support of this consideration, i.e. it does not address the burden of litigating
in Oklahoma, Oklahoma’s interest in resolving the dispute, Plaintiffs’ interest in
convenient effectual relief or the benefit of efficient resolution of controversies. Newsome,
722 F.3d at 1271. Therefore, Defendant has not met its burden.
For the reasons set forth herein, the Court finds that it has personal jurisdiction over
Defendant CIS, and accordingly, the Motion to Dismiss is DENIED.
IT IS SO ORDERED this 13th day of August 2019.
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