DERRICK J. ROSS, Plаintiff, v. EARTH MOVERS, LLC., et al., Defendants.
C.A. No. S21C-02-011 MHC
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
January 19, 2023
CONNER, J.
Submitted: November 3, 2022
MEMORANDUM OPINION
Roger D. Landon, Esquire, Murphy & Landon, Wilmington Delaware. Attorney for Derrick J. Ross.
William R. Adams, Esquire, Dickie, McCamey & Chilcote, P.C., Wilmington, Delaware. Attorney for Earth Movers, LLC.
Sarah B. Cole, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, Delaware. Attorney for Oak Ridge Construction and Transport, Inc.
D. Miika Roggio, Esquire, Wilmington Delaware, Matthew Vodzak, Pro Hac Vice,
INTRODUCTION
Defendant/Third-Party Defendant Oak Ridge Construction and Transport, Inc., (“Oak Ridge“) filed a Motion to Dismiss for lack of personal jurisdiction in the pending action of Ross v. Earth Movers, LLC. Allan Myers, Inc. (“Allan Myers“)1 a defendant in the matter, who is joined by Plaintiff and other Defendants, responded in opposition to the motion. Two reasons were advanced in opposition of the motion. First, they argue Oak Ridge waived the defense of personal jurisdiction. Second, the Court is able to exercise personal jurisdiction over Oak Ridge. The Court has reviewed the parties’ submissions and the relevant law. For the reasons set forth below, the Court finds that the defense was not waived and jurisdiction over Oak Ridge is improper. Accordingly, Oak Ridges’ Motion to Dismiss is GRANTED.
FACTUAL BACKGROUND
A. Motor Vehicle Collision
This case centers around a motor vehicle collision that ocсurred on May 31, 2020.2 At approximately 8:00 p.m. a paving project began on State Route 1.3 Leroy Yuman (“Yuman“) was employed as a dump truck operator for Allan Myers.4
Yuman was driving a dump truck filled with asphalt from the asphalt plant in Dover, Delaware, to the paving project site.5 At approximately 10:25 p.m. Yuman deposited the load of asphalt at the paving project site.6 After depositing the asphalt, Yuman proceeded southbound on State Route 1 to return to the asphalt plant in Dover.7 However, before leaving the site and entering the roadway, Yuman failed to secure his dump latch, leaving the dump body in a fully extended upward position.8
While Yuman was operating the fully extended dump truck southbound on State Route 1, Derrick Ross was operating a 2019 GMC Yukon northbound on State Route 1.9 Both vehicles were nearing the Paddock Road (State Route 30) overpass.10 At the time, Ross was driving and his three minor children were passengers in the vehicle.11 Yuman approached the Paddock Road оverpass with the dump body fully extended at approximately 55-60 miles per hour.12 The extended dump body struck the bottom of the overpass causing it to completely detach from the truck.13 The dump body came to a resting point seventy feet south of the point of impact
At that same moment, Ross was traveling in the northbound lane when the dump truck suddenly entered his lane of travel.17 Ross attempted to brake to avoid a collision but was unable to due to the sudden and unexpected entrance of the dump truck in his lane of travel.18 The front of the dump truck struck the front of the GMC Yukon, pushing it backwards to a final resting place on the right shoulder of northbound State Route 1.19 After the impact with the GMC Yukon, the dump truck continued to travel eastbound off of the roadway until it ended up in an embankment where it struck a tree and came to a stop.20
The impact caused the front of the GMC Yukon to be crushed, the air bags to deploy and the rear window to shatter.21 All passengers of the GMC Yukon were transported via air lift to hospitals for serious injuries.22 As a result of the collision, Ross and his three minor children all sustained life-threating injuries requiring extensive medical treatment.23
B. Oak Ridge‘s Involvement
Following some discovery, Oak Ridge was named as a third-party defendant and subsequently a direct defendant in the amended complaint.24 Oak Ridge purchased the dump truck that was involved in the collision brand new from Worldwide Equipment of South Carolina, Inc., on or about November 27, 2013.25 Oak Ridge then sold the dump truck to North Carolina Kenworth, Inc. on or about May 30, 2018.26 North Carolina Kenworth, Inc. then transferred title of the dump truck to MHC Kenworth Raleigh on or about July 12, 2018.27 MHC Kenworth Raleigh sold the dump truck to J.R. Atkinson Co. on July 12, 2018.28 J.R. Atkinson Co. then sold the dump truck to Earth Movers some time in August of 2018.29
At some point after November 27, 2013 and prior to the collision on May 31, 2020, the dump truck‘s PTO control system was modified or altered from its original condition.30 These modifications are alleged to have rendered the PTO control system unsafe, dangerous, and/or defective.31
PROCEDURAL HISTORY RELEVANT TO OAK RIDGE
On February 2, 2022, Allan Myers filed a third-party complaint against multiple parties, including Oak Ridge. Plaintiff, Ross, filed an amended complaint on April 11, 2022, adding Oak Ridge as a direct defendant. On April 27, 2022, Oak Ridge filed an answer which did not raise pеrsonal jurisdiction. On May 6, 2022, Oak Ridge filed an amended answer which both denied personal jurisdiction and raised lack of jurisdiction as an affirmative defense.35
On May 19, 2022, Oak Ridge filed a motion to dismiss for lack of personal jurisdiction. The Court allowed the parties to engage in jurisdictional discovery. Oak Ridge renewed its Motion to Dismiss for lack of personal jurisdiction on August 10, 2022.
Allan Myers filed a response in Opposition to Oak Ridge‘s Motion to Dismiss on September 9, 2022. The Plaintiff and other Defendants filed responses joining in suppоrt of Allan Myers Response.
WAIVER OF PERSONAL JURISIDCTION DEFENSE
As a threshold matter, Plaintiff, who joined Allan Myers’ Motion in Opposition, argues that Oak Ridge failed to assert the defense of lack of personal jurisdiction in its initial pleading and therefore waived the defense.
In making their argument, Plaintiff relies on Hornberger Management Co. v. Haws & Tingle General Contractors, Inc.36 In Hornberger, the defendant filed a motion to dismiss on various grounds, including lack of personal jurisdiction, without leave of the court and over three weeks after the extended deadline for dispositive motions.37 The Court held that the defense of personal jurisdiction was waived because defendant‘s conduct was inconsistent with such a defense.38 The Court concluded the defendant submitted to jurisdiction of the court by participating in an arbitration process without raising jurisdiction, filing a motion for a trial de novo, entering into a case scheduling order, participating in discovery, stipulating to an extension of time for filing case dispositive motions and failing to file the motion before the deadline.39 In this case, Plaintiff contends Oak Ridge did not raise the defense of personal jurisdiction in its “first dеfensive move,”40 and therefore the motion to dismiss should be denied.
A. Applicable Law
Superior Court Civil Rule 12(h) states, in pertinent part:
(h) Waiver or Preservation of Certain Defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of procеss, or insufficiency of service of process is waived . . . (B) if it is neither made by motion under this Rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.43
Superior Court Civil Rule 15(a) states:
(a) Amendments. A party may amend the party‘s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon thе trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise, a party may amend the party‘s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the Court otherwise orders.44
In Plummer v. Sherman,45 the Delaware Supreme Court analyzed the rules stated above and determined that when an answer does not raise personal jurisdiction, but the answer is amended within 20 days after it is served to raise personal jurisdiction, the defense is not waived.46
B. Oak Ridge Did Not Waive the Defense
Here, Oak Ridge filed their first amended answer within 20 days after it was served. Therefore, pursuant to
In addition, the case at hand can be differentiated from Hornberger. As mentioned above, the defendant in Hornberger filed their motion to dismiss for lack of personal jurisdiction over three weeks after the extended deadline for dispositive motions. The defendant also appeared to submit to personal jurisdiction by continually participating in Court processes. This is not the case for Oak Ridge. Although Oak Ridge did not initially assert lack of personal jurisdiction, they did so in the amended answer. Oak Ridge did not wait an extended period of time after the deаdline, nor did it continue to participate in Court processes that would indicate submission to jurisdiction.
Plaintiff emphasized the language from Hornberger that stated defendant must challenge personal jurisdiction when he makes his first defensive move.48 Oak Ridge did assert personal jurisdiction in their amended answer, as what could be considered part of their first defensive move. Since Oak Ridge properly raised the defense of lack of personal jurisdiction in their amended answer it was not waived.
STANDARD OF REVIEW
When a motion to dismiss challenges personal jurisdiction, the burden is on the plаintiff to show a basis for the court‘s jurisdiction over the nonresident defendant.49 This burden is satisfied by the plaintiff if they can make out a prima facie case that the court‘s exercise of personal jurisdiction is proper.50 A two-step analysis is used to determine if Delaware courts can obtain personal jurisdiction.51 First, the Court must consider whether jurisdiction under the Delaware Long-Arm Statute,
ANALYSIS
A. Delaware Long Arm Statute
1. General and Specific Personal Jurisdiction
The Delaware Long Arm Statute provides when a court may exercise personal jurisdiction over a nonresident defendant. The statute states, in pertinent part, that jurisdiction is appropriate if the defendant:
(1) transacts any business or performs any character of work or service in the State; (2) contracts to supply services or things in this State; (3) causes tortious injury in thе State by an act or omission in this State; (4) causes tortious injury in the State or outside of the State by any
act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenues from services, or things used or consumed in the State.54
The statute can be further separated into two main categories.55 Sections 3104(c)(1), (c)(2), and (c)(3) are specific jurisdiction provisions.56 Section 3104(c)(4) is a general jurisdiction provision.57
General jurisdiction is based on the rеlationship between the forum and the party.58 However, Allan Myers is not seeking general personal jurisdiction under subsection (c)(4).59 Therefore, general personal jurisdiction need not be discussed further.
Specific jurisdiction is triggered when the plaintiff‘s claims arise out of acts or omissions, by the defendant, that take place in Delaware.60 Specific jurisdiction under subsections (c)(1)-(3) is not met. As stated in an affidavit by Michael Muckenfuss, the President of Oak Ridge, Oak Ridge is not and has never been a Delaware corporation or maintained a principal place of business in Delaware.61 Oak Ridge has no physical or mailing address, phone number, bank account, office, employees, or other personnel in the State of Delaware.62 It does not own, lease, use, or otherwise possess any office, warehouse, or other real or personal property in the State of Delaware.63 In addition, Oak Ridge does not sell any materials in Delaware, nor does it transport matеrials, transact, or solicit business in Delaware.64 Lastly, no revenue is derived from services or things consumed in Delaware.65
Additionally, Allan Myers alleges that since Oak Ridge sold the dump truck to Kenworth, a multi-state dealer with a website searchable by Delaware residents, that Oak Ridge should have known the truck could later reach Delaware, and therefore, Oak Ridge should be subject to jurisdiction in Delaware.66 Oak Ridge cannot be subject to specific jurisdiction just because the company it sold the dump truсk to has an internet presence which could have caused the dump truck to be seen by people in Delaware. Delaware law requires that the out-of-state defendant committed an act or omission in Delaware that resulted in the tortious injury.67 “When considering whether the defendant acted in the forum state, courts . . . require ‘something more’ from the defendant than ‘the knowledge that their website could be viewed or that their product could be used in the forum state.‘”68 The defendant needs to target the contents of the website toward Delaware in a manner that would purposefully avail itself of
Therefore, Allan Myers is left with a dual jurisdiction argument to establish this Court can exercise personal jurisdiction over Oak Ridge.
2. Dual Jurisdiction
The Delaware Supreme Court first recognized dual jurisdiction in 1986. Several cases have since expanded upon the notion of dual jurisdiction. When a dual jurisdiction argument is advanced, the Court examines jurisdiction under both
Our Courts have broadly construed jurisdiction to the mаximum extent possible to protect the citizens of Delaware. “In fact, the only limit placed on § 3104 is that it remain within the constraints of the Due Process Clause.”72 So, when a defendant has sufficient contacts with Delaware and the plaintiffs’ claim arises out of those contacts, dual jurisdiction is appropriate.73 When analyzing if dual jurisdiction is satisfied, the court looks to whether there was an intent or purpose on the part of the defendant to serve the Delaware market.74 If the intent to serve thе Delaware market results in the introduction of a product to Delaware and the cause of action arises from an injury caused by that product, dual jurisdiction is satisfied.75
In Boone v. Oy Partek Ab, the Court held that the long arm statute was satisfied via
The Court in Diaz Cardona v. Hitachi Koki Co., LTD, also found dual jurisdiction was satisfied.80 In Diaz Cardona, the defendant set up a Delaware corporation as its exclusive U.S. distribution site for the purpose of selling products in the states,
In this case, there is a complete lack of evidence that Oak Ridge does or solicits business in Delaware, engages in any other course of conduct in Delaware, or derives substantial revenue from things used or consumed in Delaware. Not only is there no “persistent course of conduct in Delaware,”85 there is no conduct directed at or in Delaware at all.
The case that is most analogous to Oak Ridge‘s connections, or lack thereof, with Delaware is Fischer v. Hilton.86 Although decided before dual jurisdiction was recognized, it was analyzed in the same manner, using both
Here, Oak Ridge had no way of knowing the truck would ultimately be used in Delaware. And to reiterate, Oak Ridge did not regularly do business or engage in persistent conduct in Delaware. Specific, general, and dual jurisdiction are not met under Delaware‘s Long Arm Statute.
B. Constitutional Analysis
Even if the requirements of the Long Arm Statute were met, due process considerations would preclude the exercise of jurisdiction. The second step in the personal jurisdictional analysis is the Due Process requirement. This step is further broken down into two prongs, minimum contacts and fairness.
1. Minimum Contacts
The first prong of the constitutional analysis is determining whether Oak Ridge engaged in minimum contacts with Delaware. In other words, did Oak Ridge act in a manner to purposefully avail itself of the privilege of conducting activities within Delaware.91
A state court is ablе to exercise personal jurisdiction over a nonresident defendant as long as minimum contacts exist between the defendant and the
In determining whether there are minimum contacts, the courts look to see if there is a substantial connection between the defendant and the forum state. The contacts must come by actions of the defendant purposefully directed towards the forum state. Conduct between the defendant and forum state includes but is not limited to performing services in the forum state, soliciting business either through salespersons in the forum state or advertising reasonably calculated to reach the forum state, mаking regular sales to residents of the forum state, and seeking to serve the forum state‘s market.95
World-Wide Volkswagen Corp. v. Woodson provides the Court with a basis for what equates to minimum contacts. In World-Wide Volkswagen Corp. a products liability suit was instituted in an Oklahoma state court by the plaintiffs for personal injuries that were sustained in Oklahoma after an automobile accident.96 An Audi was purchased by the plaintiffs in New York while they were residents of New York.97 After a year of owning the Audi in New York, the plaintiffs moved from New York driving the Audi to their new home in Arizona.98 On the way to Arizona the plаintiffs were passing through Oklahoma when another car struck the rear of their Audi causing a fire which severely injured the plaintiffs.99
The Supreme Court found that there was a total absence of the affiliating circumstances that are necessary to exercise state-court jurisdiction.100 The defendants engaged in no activity whatsoever in Oklahoma.101 The defendants did not close sales, perform services, solicit business, nor advertise in a manner reasonably calculated to reach Oklahoma.102 They availed themselves of none of the privileges and benefits of Oklahoma law.103 Jurisdiction could not be established on one isolated occurrence of a single Audi being sold in New York to New York residents that happened to suffer an accident while passing through Oklahoma.104
The Court surmised it may be foreseeable the Audi would end up in Oklahoma because it is designed to move about roadways, but that is not enough.105 “Foreseeability alone has never been a sufficient
It is clear, based on this record, Oak Ridge did nothing that could be construed as purposefully availing itself of the privilege of conducting business in Delaware, thus invoking the benefits and protections of Delaware‘s laws.111 This Court would exceed the limits of due process if it were to exercise jurisdiction over Oak Ridge.
2. Fairness
Although this Court has found that Oak Ridge is not subject to personal jurisdiction from either the Delaware Long Arm Statute, or the minimum contacts requirement, the Court will briefly discuss the second prong of the due process analysis.
Not only does a defendant have to have minimum contacts with the forum state to satisfy the due process analysis, but those contacts also must be “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”112
The Court weighs several factors in determining if jurisdiction is fair under the due process clause. The burden on the defendant is always a primary concern.113 However that burden is weighed with the other factors. These factors include: “[t]he forum State‘s interest in adjudicating the dispute; the plaintiff‘s interest in obtaining convenient and effective relief . . .; the interstate judicial system‘s interest in obtaining the most efficient resolution of controversies; and the shared interest of several States in furthering substantive social policies.”114
Oak Ridge will suffer from the burden of having to litigate in a Delaware court when they are entirely based in South Carolina. In addition, the simple act of selling a truck in South Carolina to a North Carolina company, which is then involved in an auto accident in Delaware years later does not mean Oak Ridge could or should have reasonably foreseen being hauled into court in Delaware. Also, there still has not been confirmation as to when the modifications to the dump truck‘s PTO system were made, meaning no party is even remotely certain that it was Oak Ridge who made the modifications. It is entirely unreasonable
CONCLUSION
For the reasons set forth above Defendant Oak Ridge‘s Motion to Dismiss is GRANTED.
IT IS SO ORDERED.
/s/ Mark H. Conner
Mark H. Conner, Judge
cc: Prothonotary