Dierig v. Lees Leisure Indus., Ltd.

• Decision Date: 23 November 2011
• Docket Number: Civil Action No. 11–125–DLB.
• Citation: 830 F.Supp.2d 330
• Parties: Thomas H. DIERIG, Plaintiff v. LEES LEISURE INDUS., LTD., et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

830 F.Supp.2d 330

Thomas H. DIERIG, Plaintiff

v.LEES LEISURE INDUS., LTD., et al., Defendants.

Civil Action No. 11–125–DLB.

United States District Court, E.D. Kentucky,Northern Division,at Covington.

Nov. 23, 2011.

Edwin W. Tranter, Tranter & Meier, Fort Thomas, KY, for Plaintiff.

David V. Kramer, Deters, Benzinger & Lavelle, P.S.C., Crestview Hills, KY, Todd Vanderveer McMurtry, Dressman Benzinger Lavelle, Cincinnati, OH, for Defendants.

MEMORANDUM OPINION & ORDER

DAVID L. BUNNING, District Judge.

Plaintiff Thomas H. Dierig (“Dierig”) commenced this civil action against Defendants Lees Leisure Industries, Limited (“Lees Leisure”),¹ Lite Tent Camper, LLC (“Lite Tent”), and Jimmie G. Dawkins (“Dawkins”) alleging product liability claims, including negligence and breach of warranty, for the malfunction of a latch on a pull tent trailer manufactured by Lees Leisure and sold to Plaintiff by Dawkins of Lite Tent, a distributor of Lees Leisure products.

This matter is currently before the Court on Defendants' Joint Motion to Dismiss (Doc. # 11). The motion has been fully briefed by the parties (Docs. # 12, 18). Defendants have additionally filed a Motion to Strike Exhibit 16 to Plaintiff's Response (Doc. # 17; see Doc. # 12–16). This motion has likewise been fully briefed (Docs. # 19, 20). On November 17, the Court conducted oral argument on these motions. Attorney Edwin Tranter appeared on behalf of Plaintiff, and Attorneys David Kramer and David Dirr appeared on behalf of the Defendants. These matters are now ripe for review. For the reasons set forth below, Defendants' Joint Motion to Dismiss is granted in part and denied in part, and Defendants' Motion to Strike is denied as moot.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Thomas H. Dierig, a citizen of Kentucky, is a motorcyclist and camper. In September 2009 Plaintiff became interested in purchasing a tent trailer, specifically one manufactured by Canadian corporation Lees Leisure, to be pulled behind his motorcycle. (Doc. # 12 at 1). Plaintiff developed this interest through conversation with a fellow member of the Gold Wing Road Riders (“Gold Wing”) who owned a Lees Leisure pull tent trailer, Plaintiff's review of Lees Leisure advertisements in Wing World magazine, and his review of Lees Leisure brochures. ( Id. at 1–2). The Lees Leisure website and brochure directed Plaintiff to contact Jimmie Dawkins of Lite Tent in South Carolina, its nearest distributor, for more information. Lite Tent was also touted as the exclusive authorized distributor in the Southeast and the only factory authorized distributor in this region, according to its website. ( Id. at 4). Upon contacting Dawkins at the direction of Lees Leisure's website and brochure, Dawkins advised Plaintiff that he had a trailer of the price range and description requested, and agreed to place the item on hold. ( Id. at 5).

On September 25, 2009, Plaintiff met with Dawkins at the Gold Wing bike rally in North Carolina. (Doc. # 12 at 5). Finding the unit suitable, Plaintiff purchased the pull tent trailer and received a Bill of Sale and a Certificate of Origin from Dawkins. Both of these documents listed Plaintiff's name and address in Highland Heights, Kentucky, and the Certificate also bore the signature of a representative of Lees Leisure. ( Id. at 5–6). The trailer in question was manufactured in Canada by Lees Leisure and sold to a retailer in Florida in 2005. (Doc. # 11–1 at 3). After acquiring the trailer from the Florida retailer, and prior to this sale, Lite Tent had used this particular trailer as a demonstration model. ( Id.).

In July 2010, Plaintiff drove his motorcycle with the attached tent trailer from his home in Kentucky to British Columbia, Canada. During this trip, the pin used by Plaintiff to secure the latch holding the trailer lid in place became unfastened. Consequently, the lid of the trailer opened while Plaintiff was traveling in British Columbia. The effect of the wind blowing against the open tent trailer allegedly caused the motorcycle to be “thrown about the road, and caused the Plaintiff to lose control of his motorcycle and be thrown off of his cycle into a ditch, resulting in Plaintiff being seriously injured.” (Doc. # 1 at 6). Plaintiff states that this latch system constituted a defective and unreasonably dangerous condition because it lacked the proper latch pin, and the manufacturer and distributor provided insufficient instructions as to the type of pin necessary to alleviate this dangerous condition. ( Id.). Plaintiff filed suit alleging three separate counts of product liability, including negligence in manufacturing and selling a defective product, and failure to warn consumers of the danger, as well as breach of express and implied warranties. ( Id. at 5–9). Plaintiff seeks “compensatory damages in an amount of $500,000; for his cost herein expended, for interest on the judgment until paid in full, for trial by jury, and for any and all further relief to which [he] may be entitled.” ( Id. at 9).

Contacts with Kentucky

Defendant Lees Leisure, the manufacturer of the trailer, acknowledges that they did place advertisements in Wing World, a nationally distributed magazine, which Plaintiff received at his home in Kentucky. (Docs. # 11–1 at 7; 12 at 2). Defendants further assert that Plaintiff initiated contact with Lite Tent and its agent, Dawkins, in South Carolina, eventually conducting the purchase of the product in North Carolina. (Doc. # 11–1 at 7). Additionally, Defendants contend that “Lees Leisure has sold only one trailer to a Kentucky customer through its website,” and that “Lite Tent has delivered only two trailers in the state.” ( Id. at 10). Defendants also note that they have no distributors, offices, employees or agents, property or bank accounts in the state of Kentucky. (Doc. # 11–1 at 2, 13).

In addition to the conduct admitted by Defendants, Plaintiff includes a numbered list in his response. (Doc. # 12 at 14). Plaintiff first addresses the shortcomings of Defendants' allegations by noting that Defendants have sold more Lees Leisure products to residents of Kentucky than the three trailers alleged in the motion to dismiss, including camper and trailer accessories. ( Id. at 4–7). Plaintiff additionally highlights the presence of a customer testimonial in a Lees Leisure products brochure, labeled as from a resident of Walton, Kentucky. ( Id. at 3). This brochure also contained the names and contact information of Lite Tent and Dawkins. (Doc. # 12–3 at 4). Plaintiff further alleges that Dawkins, knowing Plaintiff to be a resident of Kentucky, “induced [him], in a telephone conversation, to have a business meeting with [Dawkins] to discuss why [Plaintiff] should buy a tent trailer.” (Doc. # 12 at 14). Finally, Plaintiff emphasizes that prior to and including the time of purchase, Dawkins, and thereby Lite Tent, knew that Plaintiff was a resident of Kentucky and would be promptly returning to his home state with the purchased trailer. As evidence of this, Plaintiff highlights the fact that he had to write his name and home address on the Bill of Sale and Certificate of Origin, both presented to him by Dawkins at the time of purchase. ( Id.).

II. ANALYSIS

A. Defendant's Joint Motion to Dismiss for Lack of Personal Jurisdiction Is DENIED as to Lite Tent and GRANTED as to Lees Leisure

1. Standard

In considering a jurisdictional motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff, as the party asserting personal jurisdiction, always bears the burden of demonstrating that jurisdiction exists. See, e.g., Serras v. First Tenn. Bank Nat'l Assn., 875 F.2d 1212, 1214 (6th Cir.1989); CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996). When the court chooses to rule without conducting an evidentiary hearing, a plaintiff may defeat such motion upon a prima facie showing of personal jurisdiction. CompuServe, 89 F.3d at 1262 (citing Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir.1991)). To counter a well supported motion, the plaintiff may not rest on pleadings alone, “but must set forth, ‘by affidavit or otherwise[,] ... specific facts showing that the court has jurisdiction.’ ” Serras, 875 F.2d at 1214 (quoting Weller v. Cromwell Oil Co., 504 F.2d 927, 930 (6th Cir.1974)). Without a hearing, the court “does not weigh the controverting assertions of the party seeking dismissal,” but rather “the court must consider the pleadings and affidavits in a light most favorable to the plaintiff.” CompuServe, 89 F.3d at 1262. The Sixth Circuit has articulated this rule “to prevent nonresident defendants from regularly avoiding personal jurisdiction simply by filing an affidavit denying all jurisdictional facts.” Theunissen, 935 F.2d at 1459. Therefore, “[d]ismissal ... is proper only if all the specific facts which the plaintiff ... alleges collectively fail to state a prima face case for jurisdiction.” Id.

In determining whether a defendant is subject to personal jurisdiction, the Court must employ a two step process. The first step is to determine whether personal jurisdiction over the defendant would be in accordance with the requirements of Kentucky's long-arm statute.² If jurisdiction may be properly extended under the long-arm statute, the Court proceeds to the second step. At step two of analysis, the Court examines whether the exercise of personal jurisdiction would offend the due process rights granted under the Constitution.

2. Agency

Plaintiff attempts to employ the tenets of agency law to support his demand that “all contacts between Mr. Dawkins and Mr. Dierig be considered as contacts between Lees Leisure and Mr. Dierig for purposes of Federal Due Process specific jurisdiction analysis.” (Doc. # 12 at 17). Asserting the existence of “apparent authority,” Plaintiff purports to have relied on this assumed agency relationship when conducting business with Lite Tent and Dawkins....