Gray v. Lewis & Clark Expeditions, Inc.

• Decision Date: 27 July 1998
• Docket Number: No. 4:97CV3231.,4:97CV3231.
• Citation: 12 F.Supp.2d 993
• Court: U.S. District Court — District of Nebraska
• Parties: Nancy L. GRAY and Sterling H. Gray, Jr., Plaintiffs, v. LEWIS & CLARK EXPEDITIONS, INC., a Wyoming Corporation, Defendant.

12 F.Supp.2d 993

Nancy L. GRAY and Sterling H. Gray, Jr., Plaintiffs, v. LEWIS & CLARK EXPEDITIONS, INC., a Wyoming Corporation, Defendant.

No. 4:97CV3231.

United States District Court, D. Nebraska.

July 27, 1998.

Allan J. Eurek, Allan J. Eurek, P.C., Lincoln, NE, for Plaintiffs.

Kelly K. Brandon, Sodoro, Daly & Sodoro, Omaha, NE, for Defendants.

MEMORANDUM AND ORDER

KOPF, District Judge.

Pending before the court is a motion by Defendant to dismiss this action for lack of personal jurisdiction.¹ (Filing 3.) Plaintiffs request that if the motion is granted the matter be transferred to a federal court with proper jurisdiction. The court will grant Defendant's motion and direct the clerk of this court to transfer the action to the United States District Court for the District of Wyoming pursuant to 28 U.S.C. § 1631.

I. Facts

Plaintiffs Nancy and Sterling Gray contend that as a result of Defendant's negligence and the negligence of Defendant's employee, Nancy Gray was injured during a white-river rafting trip gone awry. Defendant Lewis & Clark Expeditions, Inc., a Wyoming corporation, argues Nebraska lacks personal jurisdiction over it. In a sworn affidavit, Donald Perkins, sole shareholder of the corporation when it was in existence, testified Lewis & Clark was never registered to transact business in this state; never possessed an interest in real property in Nebraska; never maintained any office, telephone, or agent in Nebraska; never solicited any business, nor conducted any personal business in Nebraska; never derived substantial revenue from goods used or consumed, or services rendered in Nebraska; and never contracted to supply services or goods in Nebraska. (Filing 4, Ex. 1.)

Plaintiffs reserved space on a Lewis & Clark raft ride while planning a vacation that would take them near the Grand Tetons. Nancy Gray said she contacted the Wyoming Tourist Office to inquire about rafting expeditions in the area. She subsequently received Defendant's brochure in the mail, although she does not know exactly who sent it. (Pls.' Br. at 1.) She then called Lewis & Clark's toll-free 800 number and made reservations with a credit card. She contends an agent of Lewis & Clark told her the company followed a no-cancellation policy, which meant her card would be charged whether or not Plaintiffs appeared at the scheduled time.

Plaintiffs produced evidence showing Lewis & Clark placed ads in the Trailer Life Campground/RV Park & Services Directory (Filing 19, Ex. 2), a publication marketed and sold nationwide, including, to an unknown extent, in Nebraska. (Filing 18, Ex. 5.) However, Nancy Gray testified by affidavit that she could not recall whether she saw the advertisements prior to booking the rafting trip by phone. (Filing 10, Ex. 3.)

II. Discussion

A. Right to object preserved

Plaintiffs first argue Defendant waived the right to object on personal jurisdiction grounds by failing to raise the issue within the 20-day time limit specified in Fed. R.Civ.P. 12(a). A copy of Plaintiffs' complaint was delivered to Defendant via certified mail on July 16, 1997. According to an affidavit filed by Plaintiffs' attorney, lawyers for both sides spoke on August 19, 1997 — already outside the 20-day limit — and agreed that if Defendant answered the complaint by September 5, 1997, Plaintiffs would not seek a default judgment. (Filing 8.) Defendant filed its motion to dismiss on September 5, 1997. Plaintiffs do not contend Defendant is in default, but only that Defendant cannot raise the personal jurisdiction issue because the topic was not mentioned during the August 19 conversation.

This enlargement of time agreed to by both parties is based on a misunderstanding of the Rules. Under Fed.R.Civ.P. 6(b), approval of the court is necessary to make effective a stipulation extending the time in which to answer or otherwise move in response to the complaint. Orange Theatre Corp. v. Rayherstz Amusement Corp., 130 F.2d 185, 187 (3d Cir.1942). Professional comity having the effect of lengthening lawsuits cannot be allowed to interfere with the overall purpose of the Rules, namely the just, speedy, and inexpensive determination of actions. Id. Moreover, Nebraska Local Rule 6.1 states that an enlargement of time to answer or otherwise move in response to a complaint may be granted by an order signed by the Clerk. Because court approval of this enlargement of time was neither requested nor granted, the motion in question was filed out of time. Defendant therefore would be in default following the formality of Plaintiffs filing such an application to the court. Fed. R.Civ.P. 55(b)(2).

However, I note that in such an event Defendant could apply for relief from the default judgment under Fed.R.Civ.P. 55(c) and 60(b). Taking into account Plaintiffs' agreement to the invalid stipulation and Defendant's reliance upon it, the court would set aside the default and allow Defendant to once more answer the complaint with its motion to dismiss. Following these time-consuming proceedings, the same personal jurisdiction issues would again be before the court. Rather than force these additional steps upon the parties, the court, in the interest of expediency, retroactively grants leave to Defendant to file its motion to dismiss out of time.

Any effective extension of time granted to a defendant to file an answer, such as this extension, preserves the right to move under 12(b). 5a Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1361, at 449 (1990). In the present case, Lewis & Clark's first responsive pleading contained the 12(b) motion, so the personal jurisdiction objection was not waived. Foss v. Klapka, 95 F.R.D. 521, 523 (E.D.Pa.1982) (filing a motion to dismiss two days late does not constitute a waiver so long as defendant's first response raised the issue of personal jurisdiction).

B. Plaintiff need not allege personal jurisdiction in the complaint

Defendant argues Plaintiffs' complaint ought to be dismissed simply because it does not specifically allege Defendant falls under the personal jurisdiction of this court. Fed.R.Civ.P. 8(a)(1) tells us pleadings require only "a short and plain statement of the grounds upon which the court's jurisdiction depends." Courts interpret this Rule as relating to subject-matter jurisdiction rather than personal jurisdiction. Dirks v. Carnival Cruise Lines, 642 F.Supp. 971, 973 (D.Kan. 1986). Wright and Miller agree that the "complaint need not allege ... the basis for jurisdiction over defendant's person or property." 5 C. Wright & A. Miller, Federal Practice and Procedure § 1206, at 96 (1990). Because Plaintiffs adequately plead the diverse citizenship of the parties, their complaint will not be dismissed on these grounds.

C. Standard of review for personal jurisdiction questions

Regarding the merits of Defendant's motion to dismiss for lack of personal jurisdiction, the court must ask (1) whether the Nebraska long-arm statute is satisfied, and (2) whether the exercise of jurisdiction over this defendant will violate the Due Process Clause of the Fourteenth Amendment. Minnesota Mining & Mfg. Co. v. Nippon Carbide Indus. Co., Inc., 63 F.3d 694, 696-97 (8th Cir.1995), cert. denied, 516 U.S. 1184, 116 S.Ct. 1288, 134 L.Ed.2d 232 (1996).

Nebraska's long-arm statute, Neb.Rev. Stat. § 25-536 (Michie 1995)², has been interpreted to extend jurisdiction over nonresident defendants to the fullest degree allowed by the Due Process Clause of the United States Constitution. Wagner v. Unicord Corp., 247 Neb. 217, 221, 526 N.W.2d 74, 77 (1995). Thus, constitutional limits will dictate whether jurisdiction over Defendant is proper.

In order to exercise personal jurisdiction over a nonresident defendant, due process requires the defendant have "minimum contacts" with the forum state such that maintenance of a suit against that defendant does not offend "`traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). The nonresident defendant's conduct and connection with the forum state must be such that "he should reasonably anticipate being haled into court there," World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980), and it is essential that "`there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)).

Once it has been determined that the nonresident defendant purposefully established minimum contacts with the forum state, such contacts must be analyzed in light of other factors to determine whether the exercise of personal jurisdiction over the nonresident defendant comports with "fair play and substantial justice." Id. at 476, 105 S.Ct. 2174. The factors, as articulated by the Eighth Circuit Court of Appeals, are: "(1) the nature and quality of contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) convenience of the parties." Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1102 (8th Cir.1996).

With regard to the third factor, if specific jurisdiction is asserted, as it is here, "due process is satisfied if the defendant has purposely directed its activities at forum residents, and the litigation results from injuries arising out of, or relating to, those activities." Id. at 1103. The fourth and fifth factors are of secondary importance and not determinative. Land-O-Nod Co. v. Bassett Furniture Indus., Inc., 708...