Solomon Upshaw et al v. WMB Construction Inc et al

Filing 16

OPINION AND ORDER granting 14 Motion to Dismiss. Plaintiffs may file an Amended Complaint within 30 days. Plaintiff Upshaw may continue pro se, while Plaintiff U Transport Corp. must appear through counsel or face dismissal. Failure to file an Amended Complaint within 30 days will result in the dismissal of this case without prejudice. Signed by Judge William K. Sessions III on 9/12/2013. (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. 2:13-cv-76

OPINION AND ORDER
(Doc. 14)
Plaintiffs Solomon Upshaw and U Transport Corp.,
proceeding pro se, claim that a “tractor and trailor” owned
by Upshaw was wrongfully removed from a parking space in
Avon, Massachusetts and sold to Defendants WMB Construction,
Inc. and William B. Brandon, Jr.

This Court previously

dismissed a similar action involving the same parties for
lack of personal jurisdiction over Defendants.

See Uphsaw

v. WMB Construction, Inc., 2013 WL 1430462, at *3-*4 (D. Vt.
Apr. 9, 2013).

Now before the Court is Defendants’ motion

to dismiss the instant case for lack of subject matter
jurisdiction, lack of personal jurisdiction, and failure to
state a claim.

For the reasons set forth below, Defendants’

motion (Doc. 3) is GRANTED, and Upshaw is granted leave to
file an Amended Complaint.

Factual and Procedural Background
Upshaw, as President of co-plaintiff U Transport Corp.,
alleges that Defendants “deprived my tractor and trailor
from a parking space in Avon, Massachusetts without
authority September 01, 2010.” (Doc. 1 at 1.)

Based upon

the attachments to the Complaint, it appears that Upshaw is
claiming ownership of a tractor-trailor truck that was towed
from Massachusetts and sold to Defendants.

Upshaw contends

that the removal and sale of the truck violated the Federal
Aviation Administration Authorization Act of 1994 (“FAAAA”).
Upshaw originally filed this case in the United States
District Court for the Central District of California.

That

court transferred the case here, noting that Upshaw had a
related action pending in this Court.

(Doc. 9.)

The

related action, like this case, alleged Upshaw’s ownership
of the truck and violations of the FAAAA.

In an Opinion and

Order dated April 9, 2013, the Court granted Defendants’
motion to dismiss for lack of personal jurisdiction.
Upshaw, 2013 WL 1430462, at *4.

The Court also granted

Upshaw leave to amend his Complaint, id. at *5, but he
declined to do so, and the case was dismissed without
prejudice on May 15, 2013.

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In the instant case, Defendants have moved to dismiss
for lack of subject matter jurisdiction (arguing that the
FAAAA does not apply), lack of personal jurisdiction, and
failure to state a claim for 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.
Discussion
Defendants first move to dismiss for lack of subject
matter jurisdiction, specifically disputing the
applicability of the FAAAA to this case.

The Complaint

contends that the FAAAA applies because removal of the truck
was “‘related to’ the prices, routes and services of U
Transport Corp.”

(Doc. 1 at 1.)

The FAAAA, which is

codified at 49 U.S.C. § 14501, was enacted in order “to preempt 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

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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)).
The Court previously addressed the application of the
FAAAA to Plaintiffs’ claims, and concluded as follows:
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).
Upshaw, 2013 WL 1430462, at *3.

The Court therefore

proceeded to the matter of personal jurisdiction, finding
that “the question of personal jurisdiction is more easily
resolved.”

Id.

As the legal issues in this case are

essentially the same as in Plaintiffs’ previous case, the
Court will take the same approach here.
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On a Rule 12(b)(2) motion to dismiss for lack of
personal jurisdiction, the plaintiff bears the burden of
showing that the court has jurisdiction over the defendant.
Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507
(2d Cir. 1994) (“The burden of proving jurisdiction is on
the party asserting it.”).

Where, as in this case, there

has been limited discovery and the motion is being decided
without an evidentiary hearing, the plaintiff need make only
a prima facie showing of jurisdiction.

Tom and Sally’s

Handmade Chocolates, Inc. v. Gasworks, Inc., 977 F. Supp
297, 300 (D. Vt. 1997).

When considering a motion to

dismiss for lack of personal jurisdiction, a district court
may consider matters outside the pleadings.

See Dorchester

Fin. Secs., Inc., v. Banco BRJ, S.A., 722 F.3d 81, 86 (2d
Cir. 2013).

Materials presented by the plaintiff should be

construed in the light most favorable to the plaintiff and
all doubts should be resolved in its favor.

See A.I. Trade

Fin., Inc. v. Petra Bank, 989 F.2d 76, 79–80 (2d Cir. 1993).
Personal jurisdiction determinations are governed by a
two-part inquiry.

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

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statute, and then consider whether asserting personal
jurisdiction would violate principles of due process.
id. at 567–68.

See

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)); see also Dall v. Kaylor, 163 Vt. 274, 275, 658 A.2d
78, 79 (1995).
The due process analysis requires courts to consider:
(1) whether the defendant has sufficient “minimum contacts”
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.
Ins. Co., 84 F.3d at 567.

Metro. Life

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,

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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.
See Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158,
164 (2d Cir. 2010).

Specific, or “case-linked”

jurisdiction, see Goodyear Dunlop 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

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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 Plaintiffs’ filings offer no support
for specific jurisdiction.

The Complaint, first filed in

California, does not mention Vermont.

(Doc. 1 at 1-3.)

The

events alleged in the Complaint occurred in Massachusetts
and Rhode Island.

Documentation attached to the Complaint

suggests contacts with other states, including Tennessee and
Delaware, but not (with the exception of litigation in this
Court) Vermont.

In sum, the Complaint offers no indication

that the claims in this case relate in any way to the State
of Vermont.
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

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lawsuit, courts impose a “more stringent” version of the
minimum contacts test for general jurisdiction than for
specific jurisdiction.

In re Terrorist Attacks on September

11, 2001, 714 F.3d 659, 674 (2d Cir. 2013).

Specifically,

to establish general jurisdiction, Plaintiffs are required
to show contacts that are “so continuous and systematic as
to render [Defendants] essentially at home in the forum
state.”

Goodyear, 131 S. Ct. at 2851 (quotation marks and

citation omitted).
The facts asserted here do not support a finding of
general jurisdiction.

Indeed, there is no support in either

the Complaint or its attachments for the Court to find that
Defendants have had any, much less “continuous and
systematic,” contacts with Vermont.

Id.

Furthermore, 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

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residents, and deliberately targeted Vermont for sales).
The Court therefore finds that Plaintiffs have failed to
make a prima facie showing to support general jurisdiction.
The second component of due process “asks whether the
assertion of personal jurisdiction comports with
‘traditional notions of fair play and substantial justice’ —
that is, whether it is reasonable under the circumstances of
the particular case.”

Metro. Life Ins. Co., 84 F.3d at 568

(quoting Int’l Shoe Co. v. State of Wash., Office of
Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945)).
Even assuming some relationship between this case, or the
Defendants, and Vermont, it is plain from the pleadings that
it would be unreasonable to compel Defendants to litigate in
this District.

The Court therefore finds that it has no

personal jurisdiction over Defendants, and their motion to
dismiss on this basis (Doc. 14) is GRANTED.
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).

In this case, the pleadings offer no

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support for exercising personal jurisdiction over
Defendants.

Nonetheless, the Court cannot say at this time

that any effort to amend the Complaint would be futile.
More specifically, an Amended Complaint might set forth
additional facts to support federal court jurisdiction in
Vermont.
Before it grants leave to amend, the Court notes that
Plaintiff U Transport Corp. is not represented by counsel.
Upshaw does not claim to be an attorney, and a layperson
cannot represent a corporation.

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).

Accordingly, if

Plaintiff U Transport Corp. is to continue as a party to
this case, it may only do so through counsel.
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 show that jurisdiction is proper in this

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Court.

The Amended Complaint must be captioned “Amended

Complaint,” and will completely supersede the current
Complaint.

The Amended Complaint must be filed 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.
Conclusion
For the reasons set forth above, Defendants’ motion to
dismiss for lack of personal jurisdiction (Doc. 14) is
GRANTED.

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 through counsel or face dismissal.
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
12th day of September, 2013.
/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court

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