Hegemann v. M & M American, Inc.
Filing
13
OPINION AND ORDER Transferring case to District of Northern District of Texas, Amarillo Division. Signed by Judge Christina Reiss on 9/20/2018. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
WERNER KARL HEGEMANN,
Plaintiff,
21f8 SEP 20 AH 11: 53
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V.
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M & M AMERICAN, INC.,
Case No. 2:18-cv-00064
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Defendant.
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OPINION AND ORDER TRANSFERRING CASE
TO NORTHERN DISTRICT OF TEXAS, AMARILLO DIVISION
Plaintiff W emer Karl Hegemann brings this negligence action against Defendant
M & M American, Inc. after Plaintiff was injured in an automobile accident in Texas
when his vehicle was struck by a tractor trailer owned or leased by Defendant and
operated by an individual who is not named as a defendant. Pending before the court is
Defendant's motion to dismiss Plaintiffs claims for lack of personal jurisdiction and
improper venue pursuant to Fed. R. Civ. P. 12(b)(2) and (3). (Doc. 3.) On August 30,
2018, the court heard oral argument on the motion. On September 4, 2018, Defendant
consented to transfer of venue in this matter to the United States District Court for the
Northern District of Texas, Amarillo Division.
Plaintiff is represented by Richard K. Bowen, Esq. Defendant is represented by
Shapleigh Smith, Jr., Esq.
I.
Factual Background.
The facts are derived from Plaintiffs Complaint. Plaintiff W emer Karl Hegemann
resides in Putney, Vermont. Defendant M & M American, Inc. is a trucking company
with a principal place of business in Mason, Ohio. Plaintiffs Complaint does not
identify Defendant's state of incorporation. Plaintiff alleges, upon information and
belief, that Defendant conducts business throughout the United States, Canada, and
Mexico and is licensed with the Department of Transportation to do business in all fortyeight contiguous states. Defendant has a registered agent in the State of Vermont.
Asserting that this is an action between citizens of different states and that damages
exceed the amount-in-controversy requirement, Plaintiff claims that this court has subject
matter jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a).
On or about April 24, 2016, Plaintiff was traveling eastbound in his 1994 GMC
Sierra pickup truck on "IH 40 in Oldham County, Texas[]" when his vehicle was struck
by a 2009 White International tractor-trailer truck owned or leased by Defendant and
operated by Ratavius D. Buchanan. (Doc. 1 at 2, ,i 10.) The collision caused Plaintiffs
truck to flip over, resulting in "serious bodily injuries to its occupants." Id. at 3, ,i 13.
A police officer responding to the accident issued Mr. Buchanan a ticket for
failing to control the speed of the tractor-trailer. Mr. Buchanan had an unauthorized
passenger in the cab of the tractor-trailer and was purportedly distracted by the
unauthorized visitor when the accident occurred. Plaintiff was transported from the scene
and admitted to Northwest Texas Hospital. Based on these allegations, Plaintiff asserts
claims of negligence, respondeat superior, and negligent hire and supervision.
Defendant submitted an affidavit from its President, Brian West, which describes
Defendant's business as a for-hire, transportation company primarily serving the
Midwestern and Southern United States. Mr. West avers that Defendant is incorporated
and has its principal place of business in Ohio and is not registered with Vermont's
Secretary of State to do business in Vermont, does not have any offices, employees, or
bank accounts in Vermont, and does not own or lease any property in the state.
Mr. West avers that, since 2014, Defendant has not had any Vermont-based clients
and, as a result, earned no revenue in Vermont. "Since 2014, the number of
deliveries/pick-ups that [Defendant] has made in Vermont on an annual basis represents
.07% or less than the total number of deliveries/pick-ups made by [Defendant][.]" (Doc.
3-1 at 2, ,i 7.)
Mr. West further describes Defendant's obligations under the federal Motor
Carrier Act, which provides that a motor carrier must designate an agent upon whom
2
service of process may be made in each state in which the carrier operates. To that end,
Defendant has "made arrangements with Process Agent Service Company, Inc. to make a
'blanket designation."' Id. at 2,
,r 9.
According to Mr. West, Process Service Company
maintains a list on file with the federal Motor Carrier Safety Administration that
identifies a process agent for each of the fifty states. "Because [Defendant] made a
blanket designation, it has designated all of the people identified on that list as its process
agents." Id.
II.
Conclusions of Law and Analysis.
A.
Standard of Review.
"In the absence of a federal statute specifically directing otherwise, and subject to
limitations imposed by the United States Constitution, [the court] look[s] to the law of the
forum state to determine whether a federal district court has personal jurisdiction over a
foreign corporation." Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2016)
(citing Fed. R. Civ. P. 4(k)(l)(A)). "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." Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d
560, 566 (2d Cir. 1996).
"In evaluating whether the requisite showing has been made, [the court]
construe[ s] the pleadings and any supporting materials in the light most favorable to the
plaintiffs." Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 167 (2d
Cir. 2013). "The allegations in the complaint must be taken as true to the extent they are
uncontroverted by the defendant's affidavits." MacDermid, Inc. v. Deiter, 702 F.3d 725,
727 (2d Cir. 2012). "If the parties present conflicting affidavits, all factual disputes are
resolved in the plaintiffs favor, and the plaintiffs prima facie showing is sufficient
notwithstanding the contrary presentation by the moving party." In re Terrorist Attacks
on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013) (internal quotation marks omitted).
As the Second Circuit has explained:
[I]n resolving questions of personal jurisdiction in a diversity action, a
district court must conduct a two-part inquiry. First, it must determine
3
whether the plaintiff has shown that the defendant is amenable to service of
process under the forum state's laws; and second, it must assess whether
the court's assertion of jurisdiction under these laws comports with the
requirements of due process.
Ehrenfeld v. Mahfouz, 489 F .3d 542, 54 7 (2d Cir. 2007) (internal quotation marks
omitted) (quoting Metro. Life Ins. Co., 84 F.3d at 567).
In Vermont, state courts may exercise personal jurisdiction over a non-resident
defendant "to the full extent permitted by the ... Due Process Clause" of the Fourteenth
Amendment. State v. At!. Richfield Co., 2016 VT 22, i110, 201 Vt. 342, 349, 142 A.3d
215, 220 (internal quotation marks omitted); see also In re Roman Catholic Diocese of
Albany, NY, Inc., 745 F.3d 30, 38 (2d Cir. 2014) ("Vermont's long-arm statute ...
reflects a clear policy to assert jurisdiction over individual defendants to the full extent
permitted by the Due Process Clause.") (internal citation, footnote, and quotation marks
omitted). As a result, "the first part of [the] inquiry-the interpretation of the Vermont
law governing service of process-merges with the second part of the jurisdictional test:
whether the court's exercise of personal jurisdiction over the defendant satisfies the
requirements of due process." Metro. Life Ins. Co., 84 F.3d at 567. This "analysis
consist[s] of two components: the 'minimum contacts' test and the 'reasonableness'
inquiry." Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127
(2d Cir. 2002); see also N Aircraft, Inc. v. Reed, 572 A.2d 1382, 1386 (Vt. 1990)
(providing that "once the court determines that a nonresident defendant has purposefully
established minimum contacts within the forum State, ... several factors must be
considered to ensure that exercising personal jurisdiction over the defendant is
reasonable") (citation and internal quotation marks omitted).
"To determine whether a defendant has the necessary 'minimum contacts,' a
distinction is made between 'specific' and 'general' personal jurisdiction." In re
Terrorist Attacks, 714 F.3d at 673. Specific jurisdiction "exists when a forum exercises
personal jurisdiction over a defendant in a suit arising out of or related to the defendant's
contacts with the forum[.]" Id. at 673-74 (alteration and internal quotation marks
omitted). In contrast, general jurisdiction "is based on the defendant's general business
4
contacts with the forum and permits a court to exercise its power in a case where the
subject matter of the suit is unrelated to those contacts." Id. at 674 (alteration and
internal quotation marks omitted). "A court deciding whether it has jurisdiction over an
out-of-state defendant under the Due Process Clause must evaluate the 'quality and
nature[]' ... of the defendant's contacts with the forum state under a totality of the
circumstances test[.]" Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007)
(quoting Burger King v. Rudzewicz, 471 U.S. 462,475 (1985)).
B.
Whether General Jurisdiction Exists.
Plaintiff asserts that this court has jurisdiction over Defendant "by reason of its
business activities" as it provides services throughout the United States, Canada, and
Mexico, is licensed with the Department of Transportation in all forty-eight contiguous
states, and has a registered agent in Vermont. (Doc. 1 at 2, ,r 5.) In his opposition brief,
he further claims that Defendant advertises to Vermont companies, its employees use
Interstate 89 and Interstate 91 in Vermont, purchase gas in the state, and make use of
accommodations while in Vermont. 1 Based on the uncontroverted allegations set forth in
Mr. West's declaration, Defendant responds that its limited contacts with Vermont do not
permit the exercise of general jurisdiction over it.
A corporation is subject to general jurisdiction in a forum when "'the continuous
corporate operations within a state [are] so substantial and of such a nature as to justify
suit against it on causes of action arising from dealings entirely distinct from those
activities."' Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924
(2011) (quoting Int'! Shoe Co. v. Washington, 326 U.S. 310, 318 (1945)). "[T]he general
jurisdiction inquiry 'is not whether a foreign corporation's in-forum contacts can be said
to be in some sense continuous and systematic,"' but rather "'whether that corporation's
affiliations with the State are so continuous and systematic as to render it essentially at
1
Because these assertions do not appear in his Complaint or in an affidavit or declaration, they
are not properly before the court. Even if they are considered, these allegations do not change
the personal jurisdiction analysis.
5
home in the forum."' Brown, 814 F.3d at 627 (quoting Daimler AG v. Bauman,
134 S. Ct. 746, 761 (2014)).
"With respect to a corporation, the place of incorporation and principal place of
business are paradigm bases ... for general jurisdiction." Daimler, 134 S. Ct. at 760
(alteration and internal quotation marks omitted). A corporation's principal place of
business is "the place where a corporation's officers direct, control, and coordinate the
corporation's activities." Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). "In practice,
this should normally be the place where the corporation maintains its headquartersprovided that the headquarters is the actual center of direction, control, and coordination,
i.e., the 'nerve center.'[]" One West Bank, NA. v. Melina, 827 F.3d 214,218 (2d Cir.
2016) (citing Hertz, 559 U.S. at 93) (internal quotation marks omitted).
As the Second Circuit recently observed:
[I]n assessing the extent of a corporation's contacts in a state for general
jurisdiction purposes, we must assess the company's local activity not in
isolation, but in the context of the company's overall activity: the general
jurisdiction inquiry "does not focus solely on the magnitude of the
defendant's in-state contacts," but "calls for an appraisal of a corporation's
activities in their entirety, nationwide and worldwide."
Brown, 814 F.3d at 629 (quoting Daimler, 134 S. Ct. at 762 n.20). "Only in the
'exceptional' case will another jurisdiction be entitled to exercise such sweeping powers
as the use of its adjudicatory authority to decide matters unrelated to its citizens or to
affairs within its borders." Id. at 627 (quoting Daimler, 134 S. Ct. at 761 n.19). 2
2
The Daimler Court recognized Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952) as
an example of an "exceptional case" in which a corporation was subject to general jurisdiction in
a forum other than its state of incorporation or principal place of business. In Perkins, the
defendant was incorporated under the laws of the Philippines where it operated gold and silver
mines. During the Japanese occupation of the Philippines during World War II, the defendant
ceased its mining operations there, and its president moved to Ohio, "where he kept an office,
maintained the company's files and oversaw the company's activities." Daimler, 134 S. Ct. at
756. The Perkins Court held that Ohio courts could exercise general jurisdiction over the
defendant without offending due process because "Ohio was the corporation's principal, if
temporary, place of business." Id. (internal quotation marks omitted).
6
Neither of the "paradigm bases" of general jurisdiction exist here because there is
no dispute that Defendant is incorporated and has its principal place of business in Ohio.
Daimler, 134 S. Ct. at 760 (alteration and internal quotation marks omitted). The court
therefore may only exercise general jurisdiction over Defendant if this is an "exceptional"
case. See Brown, 814 F.3d at 627 (holding that "except in a truly 'exceptional' case, a
corporate defendant may be treated as 'essentially at home' only where it is incorporated
or maintains its principal place of business").
In Brown, the Second Circuit found defendant Lockheed Martin's contacts with
the forum of Connecticut were insufficient under Daimler to permit the exercise of
general jurisdiction. Lockheed had a physical presence in Connecticut for over three
decades and had obtained and maintained a certificate to do business in that state. It
employed between approximately thirty to seventy workers in Connecticut from 2008
through 2012, derived approximately $160 million in revenue for its Connecticut-based
activities, and paid Connecticut taxes on that revenue. The Second Circuit explained that
"Lockheed's business in Connecticut, while not insubstantial, constitute[ d] only a very
small part of its portfolio[;]" that, "in each of the years from 2008 through 2012, when
suit was filed, its Connecticut-based employees represented less than 0.05% of
Lockheed's full workforce[;]" and that the "$160 million in gross revenue that Lockheed
derived from its Connecticut operations over five years never exceeded 0.107% of the
company's total annual revenue." Id. at 629. As a result, the Second Circuit held that
"Lockheed's contacts with Connecticut fall far short of the relationship that Due Process
requires, under Daimler and Goodyear, to permit the exercise of general jurisdiction over
Lockheed by Connecticut courts." Id. at 630.
In this case, Defendant's contacts with Vermont are nominal to nonexistent in
comparison to Lockheed's contacts with Connecticut. Since 2014, Defendant's deliveries
and pick-ups make up 0.07% or less of its total number of deliveries or pick-ups.
Defendant is not registered to do business in Vermont. It does not have any offices,
employees, or bank accounts in Vermont and does not lease or own any property here.
Without any Vermont-based clients, Defendant has not earned any revenue in Vermont.
7
Defendant's nominal to nonexistent business activities in the State of Vermont do not
subject it to general jurisdiction here.
C.
Whether Defendant Consented to General Jurisdiction in Vermont.
Because personal jurisdiction "is a waivable right, there are a variety of legal
arrangements by which a litigant may give express or implied consent to the personal
jurisdiction of the court." Burger King, 471 U.S. 462 at 473 n.14 (internal quotation
marks omitted). Plaintiff argues that Defendant has consented to general jurisdiction
through its appointment of a registered agent in Vermont pursuant to the Motor Carrier
Act, 49 U.S.C. § 13304(a). Relying on the Second Circuit's decision in Brown,
Defendant counters that a motor carrier does not consent to general jurisdiction in every
state in which it designates a registered agent and that Plaintiffs broad interpretation of
the Motor Carrier Act would violate Due Process.
Section 13304(a) of the Motor Carrier Act governs the designation of an agent for
service of process and provides that:
A motor carrier or broker providing transportation subject to jurisdiction
under chapter 135, ... shall designate an agent in each State in which it
operates by name and post office address on whom process issued by a
court with subject matter jurisdiction may be served in an action brought
against that carrier or broker.
49 U.S.C. § 13304(a). The phrase "jurisdiction under chapter 135" "generally refers to
the jurisdiction of the Secretary of the Department of Transportation and the Surface
Transportation Board[] ... over the interstate transportation by motor carrier and the
procurement of that transportation." W Express, Inc. v. Villanueva, 2017 WL 4785831,
at *5 n.4 (M.D. Tenn. Oct. 24, 2017) (citing 49 U.S.C. §§ 13102(1 ), (2)) (internal
quotation marks omitted).
In Brown, the Second Circuit held that the Connecticut business registration
statute, which required foreign corporations transacting business in Connecticut to
maintain a registered agent in the state, did not constitute consent to general jurisdiction
in Connecticut. The Brown court reasoned that the statute did not "expressly provide[]
that foreign corporations that register to transact business in the state shall be subject to
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the 'general jurisdiction' of the Connecticut courts or direct[] that Connecticut courts may
exercise their power over registered corporations on any cause asserted by any person."
Brown, 814 F.3d at 634. In light of the "essentially at home" test announced by the
Supreme Court in Goodyear and Daimler, the Second Circuit found that "federal due
process rights likely constrain an interpretation that transforms a run-of-the-mill
registration and appointment statute into a corporate 'consent'-perhaps unwitting-to
the exercise of general jurisdiction by state courts, particularly in circumstances where
the state's interests seem limited." Id. at 637. The Second Circuit further observed:
If mere registration and the accompanying appointment of an in-state
agent-without an express consent to general jurisdiction-nonetheless
sufficed to confer general jurisdiction by implicit consent, every
corporation would be subject to general jurisdiction in every state in which
it registered, and Daimler's ruling would be robbed of meaning by a backdoor thief.
Id. at 640.
Consistent with Brown, the majority of Circuit Courts of Appeals have concluded
that appointing a registered agent is insufficient to establish general jurisdiction over a
corporation. 3 Although Brown interpreted a state statute, its reasoning applies to the
federal Motor Carrier Act as well because it does not "expressly provide" that
corporations who register to transact business in a state and appoint a registered agent
thereby consent to general jurisdiction.
In contrast, the Eighth Circuit in Ocepekv. Corp. Transp., Inc., 950 F.2d 556 (8th
Cir. 1991) squarely considered the Motor Carrier Act's designation of an agent provision
3
See Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1293 (11th Cir. 2000) (rejecting
personal jurisdiction over a corporation based on the corporation's appointment of agent for
service of process, because "casual presence of a corporate agent in the forum is not enough to
subject the corporation to suit where the cause of action is unrelated to the agent's activities");
Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179, 183 (5th Cir. 1992) ("To assert, as
plaintiffs do, that mere service on a corporate agent automatically confers general jurisdiction
displays a fundamental misconception of corporate jurisdictional principles."); Ratliff v. Cooper
Labs., Inc., 444 F.2d 745, 748 (4th Cir. 1971) ("Applying for the privilege of doing business is
one thing, but the actual exercise of that privilege is quite another.... The principles of due
process require a firmer foundation than mere compliance with state domestication statutes.")
(citation omitted).
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and held that the defendant consented to personal jurisdiction. The Ocepek court looked
to Congress's intended purpose in passing the Motor Carrier Act, noting that "[o]ne of
the goals of the [statute] was to protect citizens of the United States from injury resulting
from the actions of interstate carriers." Id. at 559. Consistent with that purpose, the
Eighth Circuit interpreted the statute and corresponding regulations, which "say nothing
about limited designations," and found that "this silence reflects that no such limitations
were contemplated by the drafters." Id. at 560.
Ocepeck is non-binding precedent that pre-dates and is arguably inconsistent with
Daimler. More critically, its reasoning is inconsistent with Brown, which concluded that
a registration statute's silence did not "expressly provide" for the exercise of general
jurisdiction. Brown, 814 F.3d at 634; see also Davis v. Quality Carriers, Inc., 2009 WL
1291985 at *5 (D.N.J. May 7, 2009) ("Nothing in the language of [the Motor Carrier Act]
or the applicable [Department of Transportation] regulations even suggests that a motor
carrier or other covered entity submits to the jurisdiction of each state in which it
designates an agent for service of process.").
The only case cited by Plaintiff that post-dates Daimler is Grubb v. Day to Day
Logistics, Inc., 2015 WL 4068742 (S.D. Ohio July 2, 2015). There, the court found that
the defendant had consented to be sued for an out-of-state automobile accident because it
designated an agent pursuant to the Motor Carrier Act. In doing so, it relied on Sixth
Circuit precedent, Shapiro v. Southeastern Greyhound Lines, 155 F.2d 135 (6th Cir.
1946), which does not address issues of personal jurisdiction. 4 The court found that
Shapiro was "unaffected by Daimler[,]" which generally limits general jurisdiction over a
corporation to its state of incorporation and principal place of business, but did not
address when a corporation consents to personal jurisdiction. Grubb, 2015 WL 4068742,
at *4. This court, by contrast, is bound by the Second Circuit's decision in Brown, which
4
Shapiro, instead, addressed a district court order "quashing service of summons on the ground
that the venue of the cause of action is improperly laid in the district." Shapiro v. Se. Greyhound
Lines, 155 F.2d 135, 136 (6th Cir. 1946). Thus, "[t]he exercise of personal jurisdiction was not
in question [in Shapiro]." W Express, Inc. v. Villanueva, 2017 WL 4785831, at *6 (M.D. Tenn.
Oct. 24, 2017).
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held that the "mere registration and the accompanying appointment of an in-state agentwithout an express consent to general jurisdiction" does not constitute consent to personal
jurisdiction. Brown, 814 F.3d at 640.
Because Defendant's designation of a registered agent pursuant to the Motor
Carrier Act does not constitute consent to be sued in Vermont, Plaintiff has not met his
burden to demonstrate that general jurisdiction exists.
D.
Whether Specific Jurisdiction Exists.
Defendant further argues that specific jurisdiction is lacking because none of
Plaintiffs claims arise out of any of its contacts with Vermont but rather relate to an
automobile accident that occurred in Texas. Plaintiff responds that Defendant has
sufficient contacts with the forum to satisfy Vermont's long-arm statute and that his
claims have a relationship to Defendant's contacts in Vermont.
"[A] State may authorize its courts to exercise [specific] personal jurisdiction over
an out-of-state defendant if the defendant has 'certain minimum contacts with [the State]
such that the maintenance of the suit does not offend 'traditional notions of fair play and
substantial justice."' Goodyear, 564 U.S. at 923 (alteration in original) (quotinglnt'l
Shoe, 326 U.S. at 316). "For the purpose of establishing specific personal jurisdiction,
the necessary fair warning requirement is satisfied if the defendant has purposefully
directed his activities at residents of the forum, and the litigation results from alleged
injuries that arise out of or relate to those activities." In re Terrorist Attacks, 714 F.3d
at 674 (internal quotation marks omitted); see also Bristol-Myers Squibb Co. v. Super. Ct.
o/California, San Francisco Cty., 137 S. Ct. 1773, 1780 (2017) (stating that "there must
be an affiliation between the forum and the underlying controversy, principally, an
activity or an occurrence that takes place in the forum State and is therefore subject to the
State's regulation.") (internal quotation marks and alteration omitted).
"The inquiry whether a forum State may assert specific jurisdiction over a
nonresident defendant focuses on the relationship among the defendant, the forum, and
the litigation." Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (internal quotation marks
omitted). In order for the court to exercise "case-linked" or specific jurisdiction, "the suit
11
must arise out of or relate to the defendant's contacts with the forum." Bristol-Myers
Squibb, 137 S. Ct. at 1780 (emphasis, internal quotation marks, and alterations omitted).
There must be "'some act by which the defendant purposefully avail[ed] itself of the
privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws."' Goodyear, 564 U.S. at 924 (quoting Hanson v. Denckla, 357
U.S. 235, 253 (1958)). The '"minimum contacts' analysis looks to the defendant's
contacts with the forum State itself, not the defendant's contacts with persons who reside
there." Walden, 134 S. Ct. at 1122. "When there is no such connection, specific
jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in
the State." Bristol-Myers Squibb, 137 S. Ct. at 1781.
Here, none of the claims raised in Plaintiffs Complaint arise out of Defendant's
contacts with Vermont. Instead, they arise out of a motor vehicle accident that took place
in Texas between a Vermont driver and Mr. Buchanan who is from another state. The
accident was investigated by Texas law enforcement and Plaintiff was treated and
released from a Texas hospital. Plaintiff has thus neither established that Defendant has
sufficient minimum contacts for specific jurisdiction nor established that his suit is
related to those contacts. As a result, no further analysis of specific jurisdiction is
warranted. See Metro. Life Ins. Co., 84 F.3d at 568 ("A reviewing court must first
examine the defendant's contacts with the forum. If the same do not exist in sufficient
abundance, that is, if the constitutionally necessary first-tier minimum is lacking, the
inquiry ends.") (internal quotation marks omitted).
Because Plaintiff has not met his burden to establish either general or specific
jurisdiction exists at the pleading stage, Defendant's motion to dismiss for lack of
personal jurisdiction is GRANTED. 5
E.
Whether the Court Should Permit Jurisdictional Discovery.
Without expressly requesting jurisdictional discovery, Plaintiff notes that this
court can exercise its discretion to permit jurisdictional discovery and conduct an
5
For this reason, the court does not and need not address Defendant's motion to dismiss based
on improper venue.
12
evidentiary hearing. "A district court is 'typically within its discretion' to order
jurisdictional discovery where a plaintiff has 'made out a prima facie case for
jurisdiction."' Funk v. Belneftekhim, 861 F.3d 354, 366 (2d Cir. 2017) (quoting Frontera
Res. Azer. Corp. v. State Oil Co. of the Azer. Republic, 582 F.3d 393, 401 (2d Cir. 2009)).
In this case, that threshold requirement has not been satisfied. In addition, Plaintiff has
not identified discovery that may enable him to satisfy the requirements for personal
jurisdiction over Defendant.
F.
Whether the Court Should Transfer this Case.
28 U.S.C. § 1404 states that: "[f]or the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district or
division where it might have been brought or to any district or division to which all
parties have consented." 28 U.S.C. § 1404(a). "Section 1404(a) is merely a codification
of the doctrine offorum non conveniens for the subset of cases in which the transferee
forum is within the federal court system; in such cases, Congress has replaced the
traditional remedy of outright dismissal with transfer." At!. Marine Constr. Co., Inc. v.
US. Dist. Ct.for the W Dist. a/Texas, 571 U.S. 49, 60 (2013). It "reflects an increased
desire to have federal civil suits tried in the federal system at the place called for in the
particular case by considerations of convenience and justice." Van Dusen v. Barrack,
376 U.S. 612, 616 (1964) (footnote omitted).
As the Supreme Court has observed, § 1404 "was designed as a federal
housekeeping measure, allowing easy change of venue within a unified federal system."
Piper Aircraft Co. v. Reyno, 454 U.S. 235,254 (1981) (internal quotation marks omitted).
Therefore, "[d]istrict courts [are] given more discretion to transfer under§ 1404(a) than
they [have] to dismiss on grounds offorum non conveniens[,]" id. at 253, and "motions
for transfer ... are determined upon notions of convenience and fairness on a case-bycase basis." Cuyahoga Equip. Corp. v. United States (In re: Cuyahoga Equip. Corp.),
980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22,
29 (1988)).
13
"[A] district court considering a§ 1404(a) motion ... must evaluate both the
convenience of the parties and various public-interest considerations." Atl. Marine, 571
U.S. at 62.
Factors relating to the parties' private interests include relative ease of
access to sources of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; possibility of view of premises, if view would be appropriate to
the action; and all other practical problems that make trial of a case easy,
expeditious and inexpensive. Public-interest factors may include the
administrative difficulties flowing from court congestion; the local interest
in having localized controversies decided at home; and the interest in
having the trial of a diversity case in a forum that is at home with the law.
The [c]ourt must also give some weight to the plaintiffT's] choice of forum.
Id. at 62 n.6 (internal citations, alterations, and quotation marks omitted). 6 It is the
moving party's burden to prove by clear and convincing evidence that a transfer is proper
under§ 1404(a). See NY Marine & Gen. Ins. Co. v. Lafarge NA., Inc., 599 F.3d 102,
113-14 (2d Cir. 2010).
Plaintiff has requested that rather than outright dismissal, the court transfer the
case so that Plaintiff will not face a statute of limitations issue if he must file his suit
elsewhere. Defendant consents to transfer. As the witnesses to the accident, the location
of the scene, some of the treating physicians, the availability of compulsory process, and
the likely application of Texas law all favor transfer, the court hereby GRANTS
Plaintiffs request.
6
The Second Circuit has articulated the relevant factors as follows: "(1) the plaintiffs choice of
forum, (2) the convenience of witnesses, (3) the location ofrelevant documents and relative ease
of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6)
the availability of process to compel the attendance of unwilling witnesses, and (7) the relative
means of the parties." NY Marine & Gen. Ins. Co. v. Lafarge NA., Inc., 599 F.3d 102, 112 (2d
Cir. 2010) (internal quotation marks omitted).
14
CONCLUSION
For the foregoing reasons, the court TRANSFERS this matter to the United States
District Court for the Northern District of Texas, Amarillo Division and upon transfer,
will dismiss this case without prejudice pursuant to Defendant's motion (Doc. 3).
SO ORDERED.
Dated at Burlington, in the District of Vermont, this :io...,.,_, day of September, 2018.
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