924 F. Supp. 2d 702
S.D.W. Va2012Background
- Dec. 2008 WV automobile collision where mother died and a minor child plaintiff injured; plaintiffs sue Norfolk Southern entities; defendants removed to federal court on diversity grounds.
- Plaintiffs named Norfolk and Southern Railway Company d.b.a. Norfolk and Southern Corporation, a misnomer later clarified to Norfolk Southern Railway Company; service of process occurred July 2012.
- Court analyzes personal jurisdiction and venue, noting West Virginia long-arm statute aligns with Due Process; defendant argues lack of both due to misnamed defendant.
- Plaintiffs request leave to amend to correct defendant’s name; amendment relates back under Rule 15 and 15(c) and is granted.
- Docket shows issues with service timing under Rule 4(k); court extends time for service to prevent prejudicing plaintiffs; action remains viable for renewal.
- Court ultimately grants motion to amend and denies dismissal for lack of personal jurisdiction/improper venue without prejudice; grants dismissal of loss of parental consortium claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction and venue viability | Fields intended Norfolk Southern Railway Company. | Defendant not properly named; lacks minimum contacts. | Denied without prejudice; amended complaint may cure naming defect. |
| Insufficient process (misnomer in summons) | Misnomer in summons should be curable by amendment. | Names do not identify existing entities. | Denied without prejudice; allow amendment to correct summons. |
| Insufficient service of process | Service timely or good cause for delay; actual service occurred. | Service beyond 120 days; not timely. | Denied; court extends time for service; action may proceed with amended service. |
| Loss of parental consortium claim viability | Parental consortium claims independent of wrongful death are viable. | Under WV law, consortium claims are derivative of wrongful death or injury to parent. | Granted; loss of parental consortium claims dismissed. |
Key Cases Cited
- Celotex Corp. v. In re Celotex Corp., 124 F.3d 619 (4th Cir. 1997) (merges long-arm with due process inquiry; specific jurisdiction standard)
- Mitrano v. Hawes, 377 F.3d 402 (4th Cir. 2004) (minimum contacts required for personal jurisdiction)
- English & Smith v. Metzger, 901 F.2d 36 (4th Cir. 1990) (due process and long-arm analysis)
- United States v. A.H. Fischer Lumber Co., 162 F.2d 872 (4th Cir. 1947) (misnomer; amendment of process permissible)
- Belcher v. Goins, 400 S.E.2d 830 (W. Va. 1990) (parens patriae; loss of parental consortium allied to wrongful death actions)
- Perkins v. United States, 55 F.3d 910 (4th Cir. 1995) (loss of consortium treated as part of wrongful death recovery; proper joinder)
- Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010) (name confusion doctrine; relation back to original pleading)
- Johnson v. Huntington Moving & Storage, Inc., 239 S.E.2d 128 (W. Va. 1977) (misnomer and amendment controls under Rule 15)