ABEL et al v. KIRBARAN et al

Filing 21

MEMORANDUM AND ORDER THAT THE MOTION OF DEFENDANT MITCHELL ROSS TO DISMISS THIS ACTION FOR LACK OF PERSONAL JURISDICTION IS GRANTED; THE MOTION OF DEFENDANT MR CARS, INC. FOR SUMMARY JUDGMENT IS GRANTED; AND JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT MR CARS, INC. AND AGAINST PLAINTIFFS JAMES E. ABEL AND MARY BETH ABEL.SIGNED BY JUDGE HARVEY BARTLE III ON 5/11/06. 5/12/06 ENTERED AND COPIES MAILED, E-MAILED.(fdc)

ABEL et al v. KIRBARAN et al

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES E. ABEL, et al. v. DOODAUTH A. KIRBARAN, et al.

: : : : :

CIVIL ACTION

NO. 05-1560

MEMORANDUM Bartle, C.J. May 11, 2006

Plaintiff James E. Abel ("Abel") has sued defendants Doodauth A. Kirbaran ("Kirbaran"), Mitchell Ross ("Ross") and MR Cars, Inc. ("MR Cars") in this diversity action for personal injuries arising out of an automobile accident. Before the court

is the motion of defendants Ross and MR Cars for summary judgment. On April 7, 2003, Abel and Kirbaran were involved in an automobile accident on Interstate 95 in Philadelphia. In

addition to suing Kirbaran for negligence and loss of consortium, Abel and his wife, Mary Beth Abel, seek to hold defendants Ross and MR Cars vicariously liable for the actions of Kirbaran as the owners of the vehicle Kirbaran was driving. Under Rule 56(c) of

the Federal Rules of Civil Procedure, we may grant summary judgment only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Dockets.Justia.com

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It is undisputed that Ross is an owner and corporate officer of MR Cars, a company engaged in the business of selling used cars. The company purchases used cars primarily from dealer

owned outlet auctions and has them transported to its lot in Tennessee where they are held for resale. Sometime prior to

April 7, 2003 Ross purchased, on behalf of MR Cars, a 1992 Dodge Caravan through the internet from an auto auction in Maryland. He hired an individual, Francisco Belez, to drive the van from Maryland to New York so it could be shipped to Tennessee. At the time of the accident with Abel, Kirbaran was driving the van. Ross did not know Kirbaran. He did not give

Belez authority to allow anyone else to drive the van, and there is no evidence that any other representative of MR Cars granted Belez such authority. It is unknown how Kirbaran came into

possession of the vehicle, for neither he nor Belez can now be located. Ross seeks dismissal as a defendant for lack of personal jurisdiction. Pennsylvania's long-arm statute

authorizes Pennsylvania courts to exercise personal jurisdiction to the "fullest extent allowed under the Constitution of the United States." 42 PA. CONS. STAT. ANN. § 5322(b). Due process

requires that the defendant have "minimum contacts" in the forum state, and that the exercise of jurisdiction comport with "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). "[I]t is

essential ... that there be some act by which the defendant -2-

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personally avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." (1958) (citation omitted). A court may exercise either general or specific jurisdiction over a defendant. 255 (3d Cir. 2001). Remick v. Manfredy, 238 F.3d 248, Hanson v. Denckla, 357 U.S. 235, 253

General jurisdiction applies when the cause

of action does not arise out of and is not related to the defendant's contacts with the forum. Helicopteros Nacionales de "[T]he

Colombia, S.A. v. Hall, 466 U.S. 408, 415 n.9 (1984).

plaintiff must show significantly more than mere minimum contacts to establish general jurisdiction. The nonresident's contacts to Provident Nat'l

the forum must be continuous and substantial."

Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987) (citations omitted). Specific jurisdiction is proper when

the "cause of action arises out of [the] defendant's forumrelated activities, such that the defendant 'should reasonably anticipate being haled into court' in that forum." Remick, 238

F.3d at 255; see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Where the defendant has raised a

jurisdictional defense, the plaintiff bears the burden of establishing, through sworn affidavits or other competent evidence, that either general or specific jurisdiction can be exercised. Mellon Bank (East) PSFS, N.A. v. DiVeronica Bros.

Inc., 983 F.2d 551, 554 (3d Cir. 1993); Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). -3-

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Ross resides and works in Tennessee.

Plaintiffs have

not come forward with evidence that Ross has had continuous and substantial contact with Pennsylvania such that general jurisdiction may be exercised. Provident, 819 F.2d at 437.

Further, specific jurisdiction may not be exercised because the accident did not arise out of a Pennsylvania related activity of Ross, such that he should anticipate being haled into court. Remick, 238 F.3d at 255; see also World-Wide Volkswagen, 444 U.S. at 297. Ross did not drive the car through Pennsylvania and did He did not

not direct that it be driven through Pennsylvania.

purchase it from an auction in Pennsylvania, and it was not being delivered here. Thus, we will dismiss Ross as a defendant for

lack of personal jurisdiction. MR Cars contends that it cannot be held vicariously liable for the actions of Kirbaran because there is no proof he was acting as its servant. Valles v. Albert Einstein Med. Ctr.,

805 A.2d 1232, 1237 (Pa. 2002); Leonard v. Commw. of Pa., 771 A.2d 1238, 1240 (Pa. 2001); Smalich v. Westfall, 269 A.2d 476, 480-81 (Pa. 1970); RESTATEMENT (SECOND) agree.
OF

AGENCY §§ 1 and 2.

We

There is no evidence that Ross or any representative of

MR Cars authorized or consented to Kirbaran driving the van to New York. As noted above, Ross did not know Kirbaran. Even

assuming that MR Cars would be liable for any accident caused by Belez, it does not follow that MR Cars would be responsible for any accident caused by Kirbaran. Mere ownership of a vehicle is

insufficient to impose liability for its negligent operation by -4-

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another.

Double v. Myers, 157 A. 610, 611 (1931); see also The record is barren as to how and

Smalich, 269 A.2d at 480.

under what circumstances Kirbaran came into possession of the van. For all that is known, it could have been stolen.

Plaintiffs cannot successfully defend against a summary judgment motion based on mere speculation. 497 U.S. 871, 888 (1990). Under the circumstances, MR Cars cannot be held vicariously liable for the actions of Kirbaran. Thus, summary Lujan v. Nat'l Wildlife Fed'n,

judgment will be granted in favor of MR Cars and against plaintiffs.

-5-

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES E. ABEL, et al. v. DOODAUTH A. KIRBARAN, et al.

: : : : : ORDER

CIVIL ACTION

NO. 05-1560

AND NOW, this 11th day of May, 2006, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that: (1) the motion of defendant Mitchell Ross to dismiss

this action for lack of personal jurisdiction is GRANTED; (2) the motion of defendant MR Cars, Inc. for summary

judgment is GRANTED; and (3) judgment is entered in favor of defendant MR Cars,

Inc. and against plaintiffs James E. Abel and Mary Beth Abel. BY THE COURT:

/s/ Harvey Bartle III C.J.