Collier v. Land & Sea Rest. Co.
| Decision Date | 15 October 2014 |
| Docket Number | Case No. 7:13-cv-00104 ' |
| Court | U.S. District Court — Western District of Virginia |
| Parties | ROBERT J. COLLIER, Plaintiff, v. LAND & SEA RESTAURANT CO., LLC d/b/a FRANKIE ROWLAND'S STEAKHOUSE, Defendant/Third-Party Plaintiff, v. PERFORMANCE FOOD GROUP, INC. d/b/a PERFORMANCE FOOD SERVICE-VIRGINIA, Third-Party Defendant/Crossclaim Plaintiff, v. SAM RUST SEAFOOD, INC., Third-Party Defendant/Crossclaim Defendant/Fifth-Party Plaintiff, v. CAPE COD SHELLFISH & SEAFOOD COMPANY, Fifth-Party Defendant/Sixth-Party Plaintiff, v. NORM BLOOM AND SON, LLC, Sixth-Party Defendant. |
Hon. Glen E. Conrad
Pending before the court is a motion to dismiss filed by sixth-party defendant Norm Bloom and Son, LLC ("Norm Bloom"). In its motion, Norm Bloom seeks dismissal of the sixth-party complaint against it on the ground that this court does not have personal jurisdiction over it. Norm Bloom claims that it is entitled to dismissal under both Fed. R. Civ. P. 12(b)(2), due to lack of personal jurisdiction, and Rule 12(b)(5), for insufficiency of service of process "because service through the Secretary of the Commonwealth was improper on the ground that no personal jurisdiction over Norm Bloom existed." Dkt. No. 144 at 2.
The motion has been fully briefed, the court has heard arguments, and it is now ripe for disposition. For the reasons set forth herein, the court concludes that it has personal jurisdiction over Norm Bloom and thus the motion to dismiss will be denied.
The court has already issued a number of opinions in this case, and many of them discuss the factual background of the matter in some detail. For purposes of the instant motion, a broad overview of that background will suffice. The plaintiff in this case, Robert Collier, alleges that he suffered damages, including severe bodily damage, due to eating oysters contaminated with saxitoxin at Frankie Rowland's Steakhouse in Roanoke, Virginia on April 14, 2011. Dkt. No. 1 at 1. Various parties in the chain of supply of the oysters are named as third-party defendants in the case. According to the allegations in the third-party complaints, the oysters at issue were supplied to the restaurant by Performance Food Service-Virginia ("PFG"). PFG's supplier, in turn was Sam Rust Seafood, Inc. ("Sam Rust"), which purchased the oysters from Cape Cod Shellfish & Seafood Company ("Cape Cod"), which obtained them from Norm Bloom.
Norm Bloom alleges that this court's exercise of personal jurisdiction over it would violate its due process rights because Norm Bloom lacks sufficient contacts with the Commonwealth of Virginia. Norm Bloom sets forth the following facts via affidavit and contends they establish the limited nature of its contacts with Virginia:
• Norm Bloom is a Connecticut limited liability company with a place of business in Norwalk, Connecticut. It harvests shellfish from the waters off the coast of Connecticut;
• Norm Bloom does not have offices in Virginia, does not own property in Virginia, and does not maintain any bank accounts in Virginia;
• Norm Bloom has a general website where people can order products and shellfish online, but does not advertise or market the sale of shellfish specifically in Virginia;
• Norm Bloom has no telephone listings or mailing addresses in Virginia, is not registered to do business here, and does not have an agent for service of process here;
• No employees or members of Norm Bloom are domiciled in Virginia;
• Norm Bloom has never had any direct contact with Frankie Rowland's; and
• Norm Bloom did not sell shellfish to Cape Cod (a Massachusetts company) in Virginia and Norm Bloom was not aware that Cape Cod was re-selling shellfish to suppliers (here to Sam Rust, which sold to PFG, which sold to the restaurant in Virginia);
See Dkt. No. 145-1 at 1-2 (affidavit of Norman C. Bloom).
Norm Bloom also underscores that it is currently defending a suit brought by Collier alleging the same injuries as the instant lawsuit, which is pending in a Connecticut state court.1 Norm Bloom complains that it would be unfair and unduly burdensome to require it to defend two lawsuits arising from the same incident. Dkt. No. 145 at 3. It also points out the possibility of inconsistent or conflicting verdicts as a result of two suits concerning the same subject matter. Id.
In response, and in support of its argument that the assertion of jurisdiction over Norm Bloom is permissible, Cape Cod points to the following facts:
• On at least 36 occasions between January 5, 2011 and January 3, 2013, Norm Bloom sold shellfish to Bevans Oyster Company, a seafood wholesaler incorporated and headquartered in Virginia. These sales totaled more than $790,000 and involved over 25,000 bushels of oysters, with approximately 200 oysters per bushel;2 and
• Oysters from Norm Bloom also are sold via the secondary market, such as the allegedly tainted oysters here. For example, Norm Bloom sells to Westport Agriculture, which in turn sells the shellfish to Whole Foods, a grocery store with ten Virginia locations.
See Dkt. No. 178 at Exhibits C, D, E, F, G, and H.
The plaintiff, i.e., Cape Cod, bears the burden of establishing that the court has jurisdiction over the defendant by a preponderance of the evidence. See Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). Virginia's long-arm statute, Va. Code Ann. § 8.01-328.1,3 extendspersonal jurisdiction to the extent permitted by the Due Process Clause of the United States Constitution. English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir. 1990). Thus, the court's inquiry is limited to a determination of whether it violates due process to require Norm Bloom to appear and defend in this forum. See Stover v. O'Connell Assocs., Inc., 84 F.3d 132, 135-36 (4th Cir. 1996) (cited in Sky Cable, LLC v. Coley, No. 5:11cv48, 2013 WL 3517337, *16 (W.D. Va. July 11, 2013)). This requires that the defendant have sufficient "minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation omitted).
There are two possible avenues to obtain personal jurisdiction over a defendant: general jurisdiction and specific jurisdiction. The parties here disagree about the existence of both, with Norm Bloom asserting it is not subject to jurisdiction under either and Cape Cod alleging the court could exercise both specific and general jurisdiction.
Because the court concludes specific jurisdiction may be asserted here, it is not necessary to address in detail Cape Cod's argument that this court could assert general jurisdiction over Norm Bloom. Nonetheless, the court will explain briefly why it does not have general jurisdiction over Norm Bloom.
General personal jurisdiction is "all-purpose" jurisdiction such that an individual or entity can be hauled into a state's court even when its affiliations with the state did not give rise to the conduct at issue. Daimler AG v. Bauman, 134 S. Ct. 746, 751 (2014). The Supreme Court's recent decision in Daimler sets forth the relevant standards for evaluating a claim of general personal jurisdiction. In short, general jurisdiction requires not just "continuous and systematic" contacts (the words used in Int'l Shoe to refer to specific jurisdiction), but instead requires that "the continuous corporate operations within a state [be] so substantial and of such a nature as to justify suit . . . on causes of action arising from dealings entirely distinct from those activities." Daimler, 134 S. Ct. at 761 (citing Int'l Shoe, 326 U.S. at 318.) To justify general personal jurisdiction, the corporation's affiliations with the state must be "so continuous and systematic as to render it essentially at home in the forum state." Id. (citation omitted).
Norm Bloom's direct contacts with Virginia include its website sales and sales to Bevans. It also has indirect contacts with Virginia in that it sells to suppliers, and those suppliers (or their distribution chains) sell Norm Bloom's products in Virginia. Sales through a website alone are insufficient to confer general jurisdiction if that website is focused generally on customers located throughout the United States and does not focus on or target customers in the forum state. See Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 401 (4th Cir. 2003). Based on the information provided to the court, the website here falls within that category. That is, it allows customers located anywhere to purchase Norm Bloom's products through the website, but does not focus specifically on Virginia as a target market.
As to the sales to Bevans, the record contains evidence of the volume of those sales (about $800,000 over a two-year period that includes that date of alleged injury here), but not about the percentage of Norm...
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