Caffee v. Accelerated Genetics et al
OPINION AND ORDER granting 6 Motion to Dismiss Without Prejudice for Lack of Jurisdiction. Signed by U.S. District Judge Roberto A. Lange on 03/22/2017. (LH)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
OPINION AND ORDER GRANTING
MOTION TO DISMISS WITHOUT
ACCELERATED GENETICS, NEBRASKA
BULL SERVICE, A DIVISION OF
Plaintiff Lacey Caffee (Caffee) sued Defendant Accelerated Genetics and Nebraska Bull
Service, a division of Accelerated Genetics (Accelerated Genetics) 1 invoking 28 U.S.C.
§ 1332(a)(l), diversity of citizenship jurisdiction. Doc. 1 at
photographer living in Jerauld County, South Dakota. Doc. 1 at
1. Caffee is a self-employed
Accelerated Genetics is a
Wisconsin corporation with its principal place of business in Baraboo, Wisconsin. Doc. 1 at ir 4;
Doc. 8 at irir 3-4. Caffee claims that she was injured on May 5, 2014, while photographing bulls
at the Nebraska Bull Service division of Accelerated Genetics in or near McCook, Nebraska,
Doc. 1 at irir 7-9, and brings a negligence claim seeking medical expenses, lost income, pain and
suffering, loss of enjoyment of life, and other damages, Doc. 1 at irir 11-21.
On January 25, 2017, Accelerated Genetics filed a Motion to Dismiss Plaintiffs
Complaint Pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(3), a brief in support of the motion, and
The proper name of this entity appears to the Tri-State Breeders Cooperative, d/b/a Accelerated
Genetics, a Wisconsin Domestic corporation. Doc. 8 at ir 3.
an affidavit of Don Trimmer, a vice president of a division of Accelerated Genetics. Docs. 6, 7,
8. Under Civil Local Rule 7.1.B, Caffee had "21 calendar days after service of [Accelerated
Genetics' motion papers by which Caffee] must serve and file a responsive brief containing
opposing arguments and authorities in support thereof." D.S.D. Civ. LR 7.1.B. Caffee has not
opposed the motion to dismiss or filed anything since the day her complaint was filed.
Accelerated Genetics seeks dismissal based on a lack of personal jurisdiction over it in
South Dakota. As mentioned, Accelerated Genetics submitted an affidavit to provide the facts
on which it relies in arguing an absence of personal jurisdiction. When, as here, a "court limits
its review of a Rule 12(b)(2) motion solely to affidavits and other written evidence, the plaintiff
'need only make a prima facie showing of [personal] jurisdiction."' Hylland v. Flaum, No. 16CV-4060-RAL, 2016 WL 6901267, at *2 (D.S.D. Nov. 22, 2016) (quoting Dakota Indus., Inc. v.
Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991)) (alteration in original).
"Although the evidentiary showing required at the prima facie stage is minimal, the showing
must be tested, not by the pleadings alone, but by the affidavits and exhibits supporting or
opposing the motion." K-V Pharm. Co. v. J Uriach & CIA, S.A., 648 F.3d 588, 592 (8th Cir.
2011) (internal quotation marks and citations omitted). On such a motion this Court construes
the evidence the parties submitted in the light most favorable to the party asserting jurisdiction
and resolves all factual disputes in her favor. Id.; Hylland, 2016 WL 6901267, at *2. Because
the affidavit of Don Trimmer is uncontroverted, this Court is left with taking the facts relevant to
this motion from that affidavit and from the complaint itself.
Tri-State Breeders Cooperative, d/b/a Accelerated Genetics is a Wisconsin corporation
with its headquarters and principal place of business in Baraboo, Wisconsin. Doc. 8 at
Accelerated Genetics' business model focuses on purchasing bulls, collecting semen, and
marketing it for sale to ranchers, farmers, and dairy producers to inseminate their cows. Doc. 8
at ii 5. Accelerated Genetics uses independent contractors to sell bull semen for them throughout
the world, including in the state of South Dakota. Doc. 8 at ii 8. However, Accelerated Genetics
does not have offices, employees, or bank accounts in South Dakota. Doc. 8 at ,-i 6. Nor does
Accelerated Genetics design or manufacture any products in South Dakota. Doc. 8 at ,-i 7.
Nebraska Bull Service is a division of Accelerated Genetics, which collects, stores, and ships
bull semen along with housing bulls. Doc. 8 at
9. The Nebraska Bull Service division of
Accelerated Genetics is located in McCook, Nebraska. Doc. 8 at
10. The Nebraska Bull
Service houses bulls for producers from South Dakota and ships semen to breeders residing in
South Dakota. Doc. 8 at
However, the Nebraska Bull Service conducts no other business
in South Dakota. Doc. 8 at ii 11.
This lawsuit stems from a contract between Accelerated Genetics and Caffee, who is a
photographer based out of Jerauld County, South Dakota. Doc. 1 at
iii! 3, 7.
Don Trimmer, the
vice president of the beef program with Accelerated Genetics, called Caffee and asked if she
would come to McCook, Nebraska and photograph approximately 20 bulls. Caffee agreed to do
so and indicated that she would charge $250 per bull plus her travel expenses and hotel. Doc. 8
2, 12. There was no written agreement and the deal was made entirely over the phone.
Doc. 8 at ,-i 12. On May 5, 2014, the Plaintiff arrived in McCook, Nebraska, and was injured in
the process of taking photographs of the bulls. Doc. 8 at
13. Her lawsuit arises out of the
injuries. Doc. 1.
A federal court sitting in diversity may exercise jurisdiction over nonresident defendants
only if both the forum state's long-arm statute and the Fourteenth Amendment's Due Process
Clause are satisfied. Morris v. Barkbuster, Inc., 923 F.2d 1277, 1280 (8th Cir. 1991). Because
South Dakota's long-arm statute confers jurisdiction to the full extent permissible under the Due
Process Clause, the question here is whether asserting personal jurisdiction over Accelerated
Genetics comports with due process. Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818
(8th Cir. 1994) (applying South Dakota law).
Personal jurisdiction under the Due Process Clause may be either general or specific.
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924-25 (2011). Courts with
general jurisdiction over a defendant may hear "any and all claims" against the defendant, even if
those claims are unrelated to the defendant's contacts with the forum state. Daimler AG v.
Bauman, 134 S. Ct. 746, 754 (2014) (quoting Goodyear, 564 U.S. at 919). With respect to a
corporation, its place of incorporation and principal place of business are two places where it
typically can be found for personal jurisdictional purposes. Daimler AG, 134 S. Ct. at 760.
Otherwise, for general jurisdiction to exist, the defendant's contacts with the forum state must be
"so 'continuous and systematic"' that the defendant is "essentially at home" there. Goodyear,
564 U.S. at 919 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 317 (1945)).
No general jurisdiction exists over Accelerated Genetics in South Dakota. Accelerated
Genetics has no offices, employees, or bank accounts in South Dakota, nor does it manufacture
or design any product in South Dakota. The Nebraska Bull Service division of Accelerated
Genetics does some sales in South Dakota, but these appear to be insufficient to justify general
jurisdiction under the circumstances.
See Kimball v. Countrywide Merchant Servs., No.
CIV.A.04-3466, 2005 WL 318752, at *3-4 (E.D. Pa. Feb. 8, 2005) (no general jurisdiction
where defendants had made some sales to forum state, but had no employees or property in the
forum state); Collegesource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1074-75 (9th Cir. 2011)
(general jurisdiction inappropriate when contacts with state are sporadic and business has no
offices, no staff, and is not registered to do business in forum state).
Specific jurisdiction, by contrast, may be based on a defendant's solitary or irregular
contact with the forum state. Daimler AG, 134 S. Ct. at 754. Unlike general jurisdiction,
however, specific jurisdiction is limited to suits arising out of or relating to the defendant's
contact with the forum state.
Goodyear, 564 U.S. at 919.
Courts may exercise specific
jurisdiction over an out-of-state defendant if the defendant has "certain minimum contacts" with
the state such that having to defend a lawsuit there "does not offend traditional notions of fair
play and substantial justice." Int'l Shoe Co., 326 U.S. at 316 (quotation omitted).
minimum contacts must be based on "some act by which the defendant purposefully avails"
himself of the forum state "such that he should reasonably anticipate being haled into court
there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985) (quotations omitted). It
is the defendant, rather than the plaintiff or a third party, who must establish the minimum
contacts in the forum state. Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014). Moreover, the
defendant's contacts must be "with the forum State itself, not ... with persons who reside there."
Id.; see also id. at 1123 ("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."
(quoting Burger King, 471 U.S. at 475)).
Under Eighth Circuit precedent, five factors guide evaluating whether the constitutional
requirements for personal jurisdiction have been met: "(1) the nature and quality of the contacts
with the forum state; (2) the quantity of contacts with the forum; (3) the relation of the cause of
action to these contacts; (4) the interest of the forum state in providing a forum for its residents;
and (5) the convenience of the parties." Digi-Tel Holdings, Inc. v. Proteq Telecomms, (PTE),
Ltd., 89 F.3d 519, 522-23 (8th Cir. 1996) (footnote omitted). The first three factors are the most
important while the last two are merely secondary. Id. at 523.
Accelerated Genetics could be subject to personal jurisdiction under the precepts of
specific jurisdiction if, for example, this suit arose out of its Nebraska Bull Service division's
marketing or sales in South Dakota.
But that is not what this case concerns.
Accelerated Genetics employee contacted a South Dakota photographer to hire her to take
photographs of bulls in McCook, Nebraska. The service and work was to be performed entirely
in Nebraska. No Accelerated Genetics employee or representative traveled to South Dakota and
only a single call was made to the state. The negligence is alleged to have occurred entirely in
McCook, Nebraska, Doc. 1 at iii! 12-13, and likewise the injury occurred in McCook, Nebraska,
Doc. 1 at iJ 9.
Under the five factors, Accelerated Genetics had only one relevant contact with South
Dakota in the form of a phone call, and the nature and quality of the contacts are thus very
limited. The cause of action is for negligence, which is alleged to have occurred entirely in
Nebraska, unconnected to any behavior or activity of Accelerated Genetics within South Dakota.
Although South Dakota has an interest in providing a forum to its residents, the convenience-ofthe-parties factor favors litigation in Nebraska where the incident occurred and presumably all
eye witnesses other than Caffee herself reside.
Therefore, it is hereby
ORDERED that Defendant's Motion to Dismiss Plaintiffs Complaint Pursuant to Fed. R.
Civ. P. 12(b)(2) and 12(b)(3), Doc. 6, will be granted without prejudice to refiling in Nebraska,
but the Court will hold off on entering judgment for 14 calendar days to allow Caffee's counsel
either to negotiate a stipulation to change venue and transfer to the District of Nebraska or to
move for such a venue change and transfer.
Cl~"'" day of March, 2017.
BY THE COURT:
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