Upshaw v. WMB Construction, Inc. et al
Filing
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OPINION AND ORDER denying 10 Motion for Default Judgment; granting 12 Motion to Dismiss; granting 14 Motion for Extension of Time to Answer ; denying 14 Motion to Vacate ; denying 15 Motion to Order Service Upon the United States Sec retary of Transportation; denying 16 Motion for Imposition of Fines. Plaintiffs may file an Amended Complaint within 30 days. U Transport Corp. must appear with counsel or face dismissal. Signed by Judge William K. Sessions III on 4/9/2013. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Solomon Upshaw,
U Transport Corp.,
Plaintiffs,
v.
WMB Construction, Inc.,
William B. Brandon, Jr.,
Defendants.
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Case No. 2:12-cv-181
OPINION AND ORDER
(Docs. 10, 12, 14, 15, 16)
Plaintiffs Solomon Upshaw and U Transport Corp.,
proceeding pro se, bring this action seeking relief
regarding title to a motor vehicle that was allegedly
purchased by Defendants WMB Construction, Inc. and William
B. Brandon, Jr.
Now before the Court are several motions,
including Upshaw’s motions for default judgment (Doc. 10),
his motion for an order requiring the United States
Secretary of Transportation to return the vehicle (Doc. 15),
and his motion for imposition of fines (Doc. 16).
Also
before the Court are Defendants’ motion to dismiss (Doc. 12)
and motion for extension of time in which to file an answer
(Doc. 14).
For the reasons set forth below, Upshaw’s
motions are DENIED, Defendants’ motions are GRANTED, and
Upshaw is granted leave to file an Amended Complaint.
Factual Background
Upshaw, as President of co-plaintiff U Transport Corp.,
alleges that Defendants are “state law purchasers” of a
“towed tractor” that was sold in Rhode Island.
2.)
(Doc. 1 at
Although the claims being asserted in the Complaint are
not clear, Upshaw appears to allege that he is the rightful
owner of the vehicle, which was wrongfully “bought and
towed” to Rhode Island from Massachusetts.
Id.
Upshaw
further claims that Defendants have refused to “state the
name of the property owner and his address, and name, bill
of sale, how much [the] vehicle sold for and why the vehicle
[was] towed to and registered in Rhode Island and
Massachusetts.”
Id.
The Complaint claims to have “[n]o
state law remedy,” and asserts that this Court has subject
matter jurisdiction pursuant to the Federal Aviation
Administration Authorization Act of 1994 (“FAAA”).
Id.
Defendants’ motion to dismiss reports that Upshaw has
“asserted similar vague claims in 6 separate actions in
Massachusetts . . . .
It is only in that light that
defendants know the plaintiff is seeking some form of relief
relating to defendants’ title to a motor vehicle which they
obtained through the Rhode Island abandoned vehicle law,
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R.I. Gen. law § 39-12.1.”
(Doc. 12 at 4.)
Documents
submitted with the Complaint indicate that, at one time,
Upshaw was the owner of one or more vehicles, and that U
Transport Corp. held a permit from the Interstate Commerce
Commission to operate as a “contract carrier by motor
vehicle.”
(Doc. 1-1 at 3.)
Among the motions pending before the Court is
Defendants’ motion to dismiss for lack of subject matter,
lack of personal jurisdiction, and failure to state a claim
upon which relief may be granted.
With respect to the
question of personal jurisdiction, Defendant William Brandon
has submitted an affidavit in which he avers that he is a
resident of Taunton, Massachusetts, that Defendant WMB
Construction, Inc. has a principal place of business in
Taunton, Massachusetts, and that neither Defendant has
conducted business in Vermont.
Upshaw’s mailing address is
in Cape Neddick, Maine.
I.
Default Judgment and Defendants’ Motion to Vacate
The first motion before the Court is Plaintiffs’ motion
for default judgment.
August 7, 2012.
Plaintiffs filed their Complaint on
The Complaint was served via first class
mail, return receipt requested, that same day.
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On August
30, 2012, the Court issued an Order requiring Defendants to
answer on or before September 12, 2012.
The Order also
allowed Upshaw to file a request for a Clerk’s Entry of
Default.
Plaintiffs requested Entry of Default on September 11,
2012.
They moved for Default Judgment on October 9, 2012.
Summonses indicating in-hand, personal service upon
Defendants were also filed with the Court on October 9,
2012.
Pursuant to those summonses, Defendants’ answers were
due October 17, 2012, and they filed their motion to dismiss
on that date.
Defendants have since moved the Court to
either extend the answer deadline set forth in the August
30, 2012 Order, or to vacate the Order because the original
form of service, via first class mail, was defective.
Under Federal Rule of Civil Procedure 4(d), a plaintiff
may request that a defendant waive personal service of the
summons.
While the request may be sent via mail, there is
no indication in this case that Upshaw included a waiver
form or a prepaid means of returning the form as required by
the Rule.
See Fed. R. Civ. P. 4(d)(1)(C).
waivers were filed with the Court.
Moreover, no
In absence of either a
valid Rule 4(d) waiver request or response, service of
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process needed to be accomplished pursuant to Fed. R. Civ.
P. 4(e).
Under Rule 4(e), service upon an individual must be
made either in accordance with state law, or by “(A)
delivering a copy of the summons and of the complaint to the
individual personally; (B) leaving a copy of each at the
individual’s dwelling or usual place of abode with someone
of suitable age and discretion who resides there; or (C)
delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.”
R. Civ. P. 4(e).
Fed.
Under Vermont law, the requirements are
nearly identical.
Vt. R. Civ. P. 4(d)(1).
Here, service
was accomplished by means of in-hand service by a Deputy
Sheriff in Massachusetts in compliance with Rule 4(e).
(Docs. 8, 9.)
Pursuant to the terms of the summonses and Fed. R. Civ.
P. 12(a)(1)(A), Defendants’ answer was due within 21 days
after service.
Given that the summonses were personally
served on September 26, 2012, Defendants timely filed their
motion to dismiss on October 17, 2012.
To the extent that
the Court ordered an answer prior to October 17, 2012, an
extension of time is warranted, as the initial effort at
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service of process via first class mail was insufficient.
Accordingly, Defendants’ motion for extension of time is
GRANTED, and their motion to vacate is DENIED as moot.
Plaintiffs’ motion for default judgment, premised upon the
assertion that Defendants’ failed to file a timely response
to the Complaint, is DENIED.
II. Defendants’ Motion to Dismiss
Next before the Court is Defendants’ motion to dismiss
for lack of subject matter jurisdiction, lack of personal
jurisdiction, and failure to state a claim.
With respect to
subject matter jurisdiction, the Complaint cites the FAAAA,
which is codified at 49 U.S.C. § 14501.
The Complaint
asserts that Plaintiffs “seek FAAAA preemption” because the
statute allegedly governs “any law related to a price,
route, or service of any motor carrier, recovery tractor and
trailer.”
(Doc. 1 at 1.)
Defendants argue that the statute
grants jurisdiction to the Interstate Transportation Board,
and “clearly does not assign jurisdiction to the Vermont
Federal Court for the private cause of action alleged here
by a citizen from Maine against a citizen and/or corporation
from Massachusetts . . . .”
(Doc. 12 at 2.)
In 1994, Congress enacted the FAAAA in order “to pre-
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empt state trucking regulation.”
See Rowe v. New Hampshire
Motor Transport Ass’n, 552 U.S. 364, 368 (2008).
Accordingly, the statute provides that “a State . . . may
not enact or enforce a law . . . related to price, route, or
service of any motor carrier . . . with respect to the
transportation of property.”
49 U.S.C. § 14501(c)(1).
The
term “related to” has been defined as “having a connection
with or reference to rates, routes, or services.”
New York
Motor State Truck Ass’n v. Pataki, 2004 WL 2937803, at *5
(S.D.N.Y. Dec. 17, 2004) (citing Morales v. TransWorld
Airlines, Inc., 504 U.S. 374, 384 (1992)).
In this case, Plaintiffs’ claims do not appear to
pertain to the “transportation of property,” or to
transportation rates charged by a participant in the
trucking industry.
Instead, the case appears to concern
Upshaw’s prior ownership of one or more vehicles, and issues
relating to legal title.
It is therefore unclear whether
jurisdiction is proper under the FAAAA.
Compare Rockwell v.
United Parcel Service, Inc., 1999 WL 33100089, at *2 (D. Vt.
July 7, 1999) (asserting jurisdiction under the FAAAA where
carrier delivered a dangerous package).
Irrespective of whether this matter falls within the
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jurisdictional purview of the FAAAA, the question of
personal jurisdiction is more easily resolved.
Plaintiffs’
bear the burden of showing that the Court has personal
jurisdiction over Defendants.
See Chaiken v. VV Publ’g
Corp., 119 F.3d 1018, 1025 (2d Cir. 1997).
In a case such
as this where there has been no discovery, he can satisfy
his burden by offering prima facie evidence of jurisdiction.
See id.; see also Tom and Sally’s Handmade Chocolates, Inc.
v. Gasworks, Inc., 977 F. Supp. 297, 299 (D. Vt. 1997).
A two-part inquiry governs personal jurisdiction
determinations.
See Metro. Life Ins. Co. v. Robertson–Ceco
Corp., 84 F.3d 560, 567 (2d Cir. 1996).
Generally, a court
must first review the state long-arm statute, and then
consider whether asserting personal jurisdiction would
violate principles of due process.
See id. at 567–68.
However, because Vermont’s long-arm statute allows
jurisdiction over a defendant to the full extent permitted
by the Due Process Clause, the inquiry is reduced to only
the due process analysis.
See id. at 567 (citing Bechard v.
Constanzo, 810 F. Supp. 579, 582-83 (D. Vt. 1992)).
The due process analysis requires courts to consider:
(1) whether the defendant has sufficient “minimum contacts”
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with the forum state, and (2) if such contacts exist,
whether jurisdiction based on such contacts is reasonable
under the circumstances of the particular case.
Id.
To
satisfy the first prong of this analysis, a non-resident
defendant must have sufficient minimum contacts with the
forum state that the defendant “should reasonably anticipate
being haled into court there.”
World–Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 297 (1980)).
“[M]inimum contacts
must have a basis in ‘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.’”
Asahi Metal
Industry Co., Ltd. v. Superior Court of California, Solano
County, 480 U.S. 102, 109 (1987) (quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 475 (1985)).
“Intentional and
affirmative action by the nonresident defendant in the forum
state is the key to personal jurisdiction.”
Ben & Jerry’s
Homemade, Inc. v. Coronet Priscilla Ice Cream Corp., 921 F.
Supp. 1206, 1210 (D. Vt. 1996).
For purposes of the minimum contacts test, courts draw
a distinction between “specific” and “general” jurisdiction.
Specific, or “case-linked” jurisdiction, see Goodyear Dunlop
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Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851
(2011), exists “when a State exercises personal jurisdiction
over a defendant in a suit arising out of or related to the
defendant’s contacts with the forum.”
Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8
(1984).
General, or “all-purpose” jurisdiction, see
Goodyear, 131 S. Ct. at 2851, “is based on the defendant’s
general business contacts and permits a court to exercise
its power in a case where the subject matter of the suit is
unrelated to those contacts.”
Metro. Life, 84 F.3d at
567–68; see also Grand River Enterprises Six Nations, Ltd.
v. Pryor, 425 F.3d 158, 166 (2d Cir. 2005) (“No single event
or contact connecting defendant to the forum state need be
demonstrated; rather, the totality of all defendant’s
contacts with the forum state must indicate that the
exercise of jurisdiction would be proper.”).
In this case, the parties’ filings offer no support for
specific jurisdiction, as there is no indication that this
case arises out of Defendants’ contacts with Vermont.
Plaintiffs’ allegations make reference to registrations in
Rhode Island and Massachusetts, as well as contacts with the
States of New Jersey, Maine, and Alabama.
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(Doc. 1 at 2-3.)
Aside from the case caption bearing the name of this Court,
and brief mention of the Vermont Truck and Bus Association’s
status as a party in an apparently unrelated civil case
previously presented to the United States Court of Appeals
for the First Circuit, the Complaint makes no reference to
the State of Vermont.
resident.
Upshaw himself appears to be a Maine
The Brandon affidavit places Defendants in
Massachusetts, and states that title to the vehicle in
question was secured by a previous owner pursuant to Rhode
Island’s abandoned vehicle law.
(Doc. 12-1 at 1.)
Absent specific jurisdiction, the Court must consider
whether it may exercise general jurisdiction over
Defendants.
Because the contacts that establish general
jurisdiction are unrelated to the events giving rise to the
suit, courts impose a “more stringent” version of the
minimum contacts test for general jurisdiction than for
specific jurisdiction.
Metro. Life, 84 F.3d at 568.
Specifically, to establish general jurisdiction, Upshaw is
required to show contacts that are “continuous and
systematic as to render [Defendants] essentially at home in
the forum state.”
Goodyear, 131 S. Ct. 2851.
Again, the facts asserted here do not support a finding
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of general jurisdiction.
Indeed, the Brandon affidavit
establishes that he and his company, Defendant WMB
Construction, Inc., have never conducted any business in
Vermont.
Compare Metro. Life, 84 F.3d at 572–73 (finding
minimum contacts sufficient to support general jurisdiction
in a “close case” in which the defendant had $4 million in
Vermont sales, registered to do business in Vermont,
maintained relationships with dealers and builders in
Vermont, provided advertising and support to Vermont
residents, and deliberately targeted Vermont for sales).
The Complaint does not offer prima facie evidence of
jurisdiction, and Upshaw has not provided any facts to
contradict Brandon’s statements.
The Court therefore finds
that it has no personal jurisdiction over Defendants, and
their motion to dismiss on this basis is GRANTED.
III.
Leave to Amend
The Second Circuit has held that district courts
“should not dismiss [a pro se Complaint] without granting
leave to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be
stated.”
Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)
(citation omitted).
Here, Upshaw has offered no support for
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his assertion that jurisdiction is proper in Vermont.
Furthermore, the Complaint is difficult to understand, and
plaintiff U Transport Corp. is barred from proceeding
without counsel.
See Local Rule 11(b) (“A corporation . . .
may not appear pro se in any proceeding.”); Eagle Assocs. v.
Bank of Montreal, 926 F.2d 1305, 1308–10 (2d Cir. 1991)
(holding that a “layman” may not represent a separate legal
entity).
Nonetheless, the Court cannot say at this time
that any effort to amend the Complaint would be futile.
More specifically, the Court cannot determine at this stage
whether Upshaw’s claims are entirely without merit, or
whether there may be facts to support federal court
jurisdiction in Vermont.
Accordingly, Plaintiffs are granted leave to file an
Amended Complaint.
The Amended Complaint must comply with
Rule 8(a) of the Federal Rules of Civil Procedure, in that
it must clearly state the grounds for relief and include
legible factual allegations.
The Complaint must also allege
sufficient facts to establish that jurisdiction is proper in
this Court.
The Amended Complaint must be captioned
“Amended Complaint,” and will completely supersede the
current Complaint.
The Amended Complaint must be filed
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within 30 days of the date of this Opinion and Order, and
failure to do so will result in the dismissal of this case
without prejudice.
Finally, if U Transport Corp. wishes to
continue as a party in this case, it must appear through
counsel or face dismissal.
IV. Remaining Motions
Upshaw has recently filed two additional motions with
the Court.
In the first, he moves the Court to order
service upon the United States Secretary of Transportation,
and to order the government to return the “tractor and
trailor deprived by state defendants.”
(Doc. 15 at 1.)
The
motion states that the return would be pursuant to the
Secretary’s delegated authority under 49 U.S.C. § 13905.
The United States Secretary of Transportation is not a
named party in this case, and is therefore not subject to
service of process.
Nor has Upshaw demonstrated that 49
U.S.C. § 13905 applies in this case.
Section 13905 sets out
effective periods of registration for motor carriers.
49 U.S.C. § 13905.
See
“On complaint or on the Secretary’s own
initiative,” Section 13905 allows the Secretary to suspend,
amend or revoke a registration for, among other things, noncompliance with the statute, an applicable regulation, an
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order of the Secretary, or a condition of registration.
49
U.S.C. § 13905(d).
Lack of registration does not appear to be the basis of
a claim for relief in this case.1
Furthermore, nothing
Upshaw has filed in this case establishes that he is
entitled to injunctive relief, with or without assistance
from the federal government.
The motion to serve the
Secretary of Transportation, and to order return of the
vehicle, is therefore DENIED.
Upshaw’s most recent motion asks the Court to impose
fines against Defendants.
The motion asserts that “the
issue is defendants using state laws taking I.C.C. tractor
and trailor without a judicial trial or due process of law.”
(Doc. 16 at 3.)
Although Upshaw cites several federal
statutes, his motion does not establish that Defendants have
violated any of those statutes’ provisions.
The motion is
therefore DENIED.
Conclusion
For the reasons set forth above, Plaintiffs’ motion for
1
In other litigation brought by Upshaw, the United States
District Court for the District of Massachusetts concluded that
Section 13905 “does not evince a Congressional intent to create a
private cause of action for harm caused by a motor vehicle’s lack of
registration.” Upshaw v. Andrade, 2012 WL 996783, at *5 (D. Mass.
Mar. 2, 2012).
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default judgment (Doc. 10), motion to order service upon the
United States Secretary of Transportation (Doc. 15), and
motion for imposition of fines (Doc. 16) are DENIED.
Defendants’ motion to dismiss for lack of personal
jurisdiction (Doc. 12) is GRANTED, as is their motion for
extension of time in which to file an answer (Doc. 14).
Defendants’ motion to vacate (Doc. 14) is DENIED.
Plaintiffs may file an Amended Complaint within 30 days
of this Opinion and Order.
Plaintiff Upshaw may continue to
proceed pro se, while plaintiff U Transport Corp. must
appear with counsel or face dismissal.
The Amended
Complaint must be captioned “Amended Complaint,” and will
completely supersede the current Complaint.
Failure to file
an Amended Complaint within 30 days will result in the
dismissal of this case without prejudice.
Dated at Burlington, in the District of Vermont, this
9th day of April, 2013.
/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court
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