United States District Court, D. Vermont
OPINION AND ORDER TRANSFERRING CASE TO NORTHERN
DISTRICT OF TEXAS, AMARILLO DIVISION
Christina Reiss, Judge
Werner 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.
is represented by Richard K. Bowen, Esq. Defendant is
represented by Shapleigh Smith, Jr., Esq.
facts are derived from Plaintiffs Complaint. Plaintiff Werner
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 forty-eight 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).
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,
¶ 10.) The collision caused Plaintiffs truck to flip
over, resulting in "serious bodily injuries to its
occupants." Id. at 3, ¶ 13.
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.
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.
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, ¶7.)
West further describes Defendant's obligations under the
federal Motor Carrier Act, which provides that a motor
carrier must designate an agent upon whom 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, ¶ 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.
Conclusions of Law and Analysis.
Standard of Review.
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)(1)(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).
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).
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 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, 547 (2d Cir.
2007) (internal quotation marks omitted) (quoting Metro.
Life Ins. Co., 84 F.3d at 567).
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. Ail. Richfield Co., 2016 VT 22,
¶ 10, 201 Vt. 342, 349, 142 A.3d 215, 220 (internal
quotation marks omitted); see also In re Roman Catholic
Diocese of Albany, N.Y., 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).
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 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
Whether General ...