AmTrust N. Am. ex rel. Wainwright v. Sennebogen Maschinenfabrik GmbH
| Decision Date | 25 August 2020 |
| Docket Number | NO.3:19-CV-1004-J-34PDB,3:19-CV-1004-J-34PDB |
| Parties | AMTRUST NORTH AMERICA, ON BEHALF OF DOUGLAS WAINWRIGHT, Plaintiff, v. SENNEBOGEN MASCHINENFABRIK GMBH, DOING BUSINESS AS SENNEBOGEN, LLC, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Douglas Wainwright was injured at work using a "Sennebogen 835 material handling machine." The defendant, Sennebogen Maschinenfabrik GmbH ("Sennebogen GmbH"), is the alleged manufacturer of the machine.
The plaintiff, AmTrust North America ("AmTrust"), insures Wainwright's employer, Berman Brothers.1 To recover worker's compensation paid to Wainwright, AmTrust brings this subrogation action under Florida law against Sennebogen GmbH, alleging negligence (count one) and strict products liability (count two).
Sennebogen GmbH is a company organized under German law and located in Straubing, Germany. According to AmTrust, Sennebogen GmbH does business as Sennebogen, LLC ("Sennebogen LLC"), an American company in Stanley, NorthCarolina. AmTrust obtained a summons directed only to Sennebogen LLC, and CT Corporation provided the summons and complaint only to Sennebogen LLC.
Aware of the lawsuit, Sennebogen GmbH moves to quash service of process and to dismiss the complaint with prejudice for lack of personal jurisdiction. Sennebogen GmbH contends it has never done business as Sennebogen LLC, is separate from Sennebogen LLC, has no parent-subsidiary relationship with Sennebogen LLC, and has no pertinent tie to Florida.
The Court referred the matter for a report and recommendation. Doc. 24; see Doc. 17 (motion); Doc. 17-1 (motion exhibits); Doc. 25 (response); Doc. 25-1 (response exhibits); Doc. 36 (reply); Docs. 36-1-36-7 (reply exhibits); see also Doc. 12 (order permitting reply).
In July 2019, AmTrust filed the complaint in state court and obtained a summons directed only to Sennebogen LLC. Doc. 1-2 at 3; Doc. 5. The summons commands each sheriff in Florida "to serve this Summons, Complaint in this action on Defendant, SENNEBOGEN, LLC" by "serving its Registered Agent: REGISTERED AGENT C/O SENNEBOGEN, LLC 160 MINE LAKE CT, SUITE 200 RALEIGH NC 27615." Doc. 1-2 at 3. Later that month, AmTrust provided the summons and complaint to Sennebogen LLC in North Carolina through CT Corporation. Doc. 17-1 at 9.
In August 2019, Sennebogen GmbH entered an appearance in state court and removed the action to this Court based on diversity jurisdiction under 28 U.S.C.§ 1332.2 Doc. 1; Doc. 1-2 at 8; Doc. 1-3 at 1.
This Court requested information on citizenship. Doc. 6. Sennebogen GmbH filed a supplemental notice of removal with the information. Doc. 7. The Court thereafter "advised [the parties it] is satisfied of the existence of subject matter jurisdiction[.]" Doc. 10.
The parties filed a case management report but asked the Court to resolve personal jurisdiction before setting deadlines. Doc. 11. The Court agreed proceeding in that manner is appropriate, established deadlines related to the personal jurisdiction issue—including for jurisdictional discovery—, and directed the parties to submit an updated case management report within fourteen days if the Court finds personal jurisdiction. Doc. 12.
The current motion, response, and reply followed. Docs. 17, 25, 36. AmTrust makes no request for an amended or another summons, no request for more time to conduct jurisdictional discovery, no request for more time to serve Sennebogen GmbH, no request for alternative service on Sennebogen GmbH, no request to amend the complaint, and no request for an evidentiary hearing.
According to the complaint allegations, AmTrust is an entity authorized to conduct business in Florida and maintains a place of business in Boca Raton, Florida. Doc. 5 ¶ 2. AmTrust insures Berman Brothers. Doc. 5 ¶ 4. Berman Brothers is anentity authorized to conduct business in Florida and maintains a place of business in Jacksonville, Florida. Doc. 5 ¶ 3. Wainwright was a Berman Brothers' employee and is a Florida resident. Doc. 5 ¶ 5. "Sennebogen, Inc." is an entity authorized to conduct business in Florida and maintains a place of business in North Carolina. Doc. 5 ¶ 6.
On July 6, 2017, Wainwright was involved in an accident in Jacksonville when the "Sennebogen 835 material handling machine" he was using malfunctioned.3 Doc. 5 ¶¶ 10, 12. As a result, he suffered and may continue to suffer injuries and damages. Doc. 5 ¶¶ 21, 22. AmTrust paid him $77,059.32 in indemnity and medical benefits.4 Doc. 5 ¶¶ 17, 29.
The complaint is drafted sloppily, making the identities of the parties inconsistent and confusing.
The caption names "AmTrust North America, on behalf of Douglas Wainwright" as the "Plaintiff" (in the singular) and "Sennebogen Maschinenfabrik GmbH d/b/a/ Sennebogen, LLC" as the "Defendants" (in the plural). Doc. 5 at 1.
The introductory paragraph refers to "Amtrust North America, on behalf of Douglas Wainwright," as the "Plaintiffs" (now in the plural) and "Sennebogen Maschinenfabrik GmbH d/b/a/ Sennebogen, LLC" as the "Defendants" (again in the plural). Doc. 5 at 1.
In a description of the parties, the complaint refers to, "Plaintiff, AmTrust North America" (back to the singular), Doc. 5 ¶ 2, and to, "Defendant, Sennebogen, Inc. (hereinafter 'Sennebogen')" (an unidentified entity; an apparent typographical error), Doc. 5 ¶ 6.
Two paragraphs describe "Defendant, Sennebogen":
For the negligence count, the complaint refers to "Plaintiffs, AmTrust, and Berman Brothers, Inc." Doc. 5 ¶ 11. Other paragraphs refer to "Plaintiffs, AmTrust, Wainwright, and Berman Brothers, Inc.," Doc. 5 ¶ 18, allege that "[a]s a direct and proximate result of the negligence and carelessness of Sennebogen LLC, Amtrust" suffered damage, Doc. 5 ¶ 19, and refer to Wainwright as "Plaintiff," Doc. 5 ¶ 12, then to Berman Brothers as "Plaintiff," Doc. 5 ¶ 15, and then to AmTrust as "Plaintiff," Doc. 5 ¶ 16. The count ends with, "WHEREFORE, Plaintiff, AmTrust, demands Judgment as set forth below." Doc. 5 at 5.
For the strict-products-liability count, the complaint refers to "The Plaintiffs, AmTrust, Associated Industries Insurance Company, Inc., Claimant [Wainwright], and Colmex Contractors, Inc." Doc. 5 ¶ 25. No paragraph identifies or describes "Associated Industries Insurance Company, Inc.," or "Colmex Contractors, Inc." Seegenerally Doc. 5. Other paragraphs refer to "Plaintiffs, AmTrust, Wainwright, and Berman Brothers, Inc.," Doc. 5 ¶ 30, allege that "[a]s a direct and proximate result of the dangerous and defective machinery of Sennebogen LLC, AmTrust has incurred various and diverse expenses," Doc. 5 ¶ 31, and refer to Berman Brothers as "Plaintiff," Doc. 5 ¶ 27. The count and the complaint end with, "WHEREFORE, Plaintiff demands judgment against Defendant as follows ...." Doc. 5 at 7.
The complaint includes the allegation, "Defendant, Sennebogen, is now, and at all times mentioned in this complaint was, placing its goods into the stream of commerce in Florida." Doc. 5 ¶ 9. For the negligence claim, AmTrust alleges, "At all times mentioned in this complaint Sennebogn [sic] so negligently and carelessly designed, manufactures, constructed, assembles, inspected, and sold the machinery, Sennebogen 835, that it was dangerous and unsafe for its intended uses." Doc. 5 ¶ 13. For the strict-products-liability claim, AmTrust alleges, "At all times mentioned in this complaint, the machinery, Sennebogen 835 and its component parts were defective as to design, manufacture, and warnings, causing the machinery to be in a dangerous and defective condition that made it unsafe for its intended use." Doc. 5 ¶ 26.
The undersigned construes the complaint to be by AmTrust and against Sennebogen GmbH in accord with AmTrust's apparent intent inferred from: the complaint's caption naming only AmTrust as the plaintiff and Sennebogen GmbH as the defendant;5 the complaint's focus on the machine manufactured by Sennebogen GmbH; the reference to only AmTrust as the plaintiff in the first wherefore clause;the reference to only one "Plaintiff" and only one "Defendant" in the second wherefore clause; and, most importantly, AmTrust's failure to contend otherwise in response to the current motion.6
AmTrust appears to proceed under Fla. Stat. § 440.39. The statute is part of Florida's workers' compensation laws. See Fla. Stat. title XXXI (Labor), ch. 440 (Workers' Compensation), § 440.39 (). The statute provides that if a covered employee is injured or killed in the course of employment by a third-party's negligence or wrongful act, the employee can accept benefits and sue the third party, but if the employee fails to sue the third party within a year, the insurer can sue the third party in the insurer's name or in the employee's name and is subrogated to the employee's rights. Fla. Stat. § 440.39(4)(a).
Citing Federal Rule of Civil Procedure 4, Sennebogen GmbH argues the Court should quash service of process because AmTrust served the wrong entity—Sennebogen LLC instead of Sennebogen GmbH—and the two entities are different.7Doc. 17 at 5-6. Sennebogen GmbH explains it is organized and exists under the laws of Germany and is in Germany. Doc. 17 at 2. Sennebogen GmbH explains it has never and does not now do business as Sennebogen LLC. Doc. 17 at 2. And Sennebogen...
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