Farani v. File
| Decision Date | 30 September 2021 |
| Docket Number | Civil Action 3:16-CV-227 |
| Parties | TAVITA FARANI, TYLER BUNTING and MICHAEL LOCKE PLAINTIFFS v. LESLIE FILE DEFENDANT EVANSTON INSURANCE COMPANY JUDGMENT DEBTOR |
| Court | U.S. District Court — Southern District of Mississippi |
Before this court is the motion [doc. no. 206] of the purported Judgment Debtor, Evanston Insurance Company (“EIC”) requesting this court to dismiss this case for lack of in personam jurisdiction. EIC also had requested, in the alternative, that this court transfer this case to the United States District Court of Nebraska to be consolidated with the pending declaratory judgment action Evanston Insurance Company v. Prime Time Healthcare LLC, Case No. 8:16-cv-159, 2018 WL 3369688, *1 (D. Neb. July 10, 2018). Subsequent to the filing of EIC's motion and prior to the hearing on this matter, a Stipulated Judgment was entered in the Nebraska case, bringing that litigation to a conclusion. At the hearing of this matter all participating attorneys stated their agreement that EIC's request to transfer this case to the federal district court of Nebraska is now moot.
This court conducted hearings on the instant motion on September 20, 2019, and September 23, 2019.
This case was tried to a jury in June of 2018. The case stemmed from a car wreck that occurred in the State of North Dakota. The jury found in favor of the three Plaintiffs and against the driver, Leslie File, in the sum of $877, 780.00 for Tavita Farani; $617, 707.61 for Tyler Bunting; and $583 519.00 for Michael Locke, amounts totaling over $2 million. File, a resident of the State of Mississippi, was a traveling nurse employed with Prime Time HealthCare (hereafter Prime Time) and was on assignment in the State of Montana at the time of the wreck. She was driving an automobile rented for her use by Prime Time, and was traveling back to Montana after visiting friends in North Dakota. The jury did not find against the employer, Prime Time, because they determined that File was not acting within the course and scope of her employment at the time of the wreck.
File's personal insurance company, Progressive, has paid its full coverage amount of $50, 000 to the Plaintiffs here. File's employer, Prime Time Health Care, had a $1 million automobile policy with Travelers Insurance, which covered Prime Time's employees. Travelers, too, has paid its full coverage amount of $1 million to the parties injured in the wreck. File's employer, Prime Time HealthCare LLC, was also insured by Evanston Insurance Company (EIC) under a $2 million umbrella policy, that purportedly covered Prime Time employees for amounts above what the underlying insurer would pay. It is this latter policy which is at issue here.
Plaintiffs contend that EIC, as an insurer of Prime Time is also an insurer of File, who, at the time of the collision, was driving a vehicle rented for her by Prime Time. In its motion to dismiss, EIC says 1) this court does not have general or specific personal jurisdiction over it and 2) Plaintiffs have not used the proper procedures to collect on the judgment.
When a nonresident defendant contests personal jurisdiction, the Plaintiff bears the burden of establishing the district court's jurisdiction over that nonresident defendant. Allred v. Moore & Peterson, 117 F.3d 278, 281 (5th Cir. 1997); Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985). To exercise personal jurisdiction in this lawsuit, this court must find (1) that EIC is subject to jurisdiction under Mississippi's Long-Arm Statute (Miss. Code Ann. § 13-3-57), and (2) that the exercise of in personam jurisdiction comports with the due process requirements of the Fourteenth Amendment of the United States Constitution.[1] Aviles v. Kunkle, 978 F.2d 201, 203-04 (5th Cir. 1992); EEOC v. Vicksburg Healthcare, LLC, No. 3:13cv895-KS-MTP, 2014 WL 4715463, at *2 (S.D.Miss. Sept. 22, 2014).
Mississippi's Long-Arm Statute provides:
Any non-resident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the constitution and laws of this state as to doing business herein, who shall make a contract with the resident of the state to be performed in whole or in part by any party in the state, or who shall commit a tort in whole or in part in this state against a resident or non-resident of the state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state.
Miss. Code Ann. §13-3-57 (emphasis added).
Mississippi's Long-Arm Statute has three sections that provide three distinct bases for personal jurisdiction, referred to as the three prongs. They are the ‘contract' prong; the ‘tort' prong; and the ‘doing business' prong. See Walker v. World Ins. Co., 289 F.Supp.2d 786, 788 (S.D.Miss. 2003). To exercise jurisdiction over EIC, this court must find one or more of the following: 1) that EIC entered into a contract to be performed in whole or in part in Mississippi; 2) that EIC committed a tort, in whole or in part in Mississippi; or 3) that EIC was “doing business” in Mississippi. Sorrells v. R.&R. Custom Coach Works, Inc. 636 So.2d 668, 671 (Miss. 1994).
EIC does not discuss the Long-Arm Statute in its opening brief at all. Its sole argument in its opening brief is that personal jurisdiction over it is not consistent with the due process provisions of the Fourteenth Amendment, because EIC lacks sufficient minimum contacts with Mississippi to be subjected to either specific or general personal jurisdiction in this state.
EIC only mentions the Long-Arm Statute in its Reply brief. The general rule in the Fifth Circuit is that arguments raised for the first time in a reply brief are waived. See e.g., Hamstein Cumberland Music Group v. Williams, 532 Fed.Appx. 538, 543 n.4 (5th Cir. 2013) (citing Medina Cnty. Envtl. Action Ass'n v. Surface Transp. Bd., 602 F.3d 687, 702 (5th Cir. 2010)); Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010); United States v. Jackson, 426 F.3d 301, 304 n.2 (5th. Cir. 2005).
Following the general rule, this court, thus, construes EIC's argument in its Reply brief to be waived.
Even so, however, as discussed later in this opinion, this court is persuaded that EIC is subject to the “doing business” prong of Miss. Code Ann. §13-3-57. This court further is persuaded that this court's exercise of personal jurisdiction over EIC comports with due process principles.
If a non-resident defendant is subject to the Long-Arm Statute of the forum state, a plaintiff must then show, in order to establish personal jurisdiction, that the exertion of personal jurisdiction over the nonresident defendant comports with due process principles. The due process determination requires, first, that the nonresident defendant must have “purposefully availed itself of the benefits and protections of the forum state by establishing ‘minimum contacts' with the forum state.” Latshaw v. Johnson, 167 F.3d 208, 211 (5th Cir. 1999) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945)). Secondly, the exercise of in personam jurisdiction over the nonresident defendant must not offend “traditional notions of fair play and substantial justice.” Allred v. Moore & Peterson, 117 F.3d 278, 285 (5th Cir. 1997).
The plaintiff has the burden to make a prima facie showing that personal jurisdiction is proper. Luv N' Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006). The court must accept the plaintiffs' uncontroverted allegations and resolve all conflicts between the facts contained in the parties' affidavits and other documentation in plaintiffs' favor. Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002). See also Ruston Gas Turbines, Inc., v. Donaldson Company, Inc. v. Corchran, Inc., 9 F.3d 415 (5th Cir. 1993).
EIC's entire argument against personal jurisdiction in its motion to dismiss, consists of only one paragraph. That argument boils down to this. EIC claims plaintiffs have not demonstrated that EIC had sufficient minimum contacts with Mississippi to support either general or specific personal jurisdiction. EIC's entire argument on personal jurisdiction is as follows:
Further, this Court lacks personal jurisdiction over EIC with respect to this ancillary proceeding because EIC is an Illinois domestic surplus lines carrier without an office or other physical presence in Mississippi. More specifically, EIC only issues insurance policies through various surplus lines brokers, and with respect to the subject policy, it was issued to a Nebraska resident (Prime Time) through a surplus lines broker located in Overland Park, Kansas as evidenced by the Declarations Page of Exhibit “A.” Accordingly, Plaintiffs have failed to demonstrate sufficient minimum contacts to the support the exercise of either general or specific personal jurisdiction over EIC here in Mississippi, further supporting a dismissal of this proceeding. See, Daimler AG v. Bauman, 134 U.S. 746, 754-58 (2014); see also, Pitts v. Ford Motor Co., 127 F.Supp.3d 676 (S.D.Miss. 2015); Mullen v. Bell Helicopter Textron, 136 F.Supp.3d 740 (S.D.Miss. 2015); Trustmark National Bank v. Sevier County Bank, 2014WL4816154, *4 (S.D.Miss., 9/24/14); and Roxco, Ltd. v. Harris Specialty Chemicals, 133 F.Supp.2d 911 (S.D.Miss. 2000)(Judge Wingate presiding).
General jurisdiction occurs when the defendant's activities in the state are continuous and systematic. If the contacts are systematic and continuous, personal jurisdiction is conferred even if...
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