Kroger Company v. Adkins Transfer Company

• Citation: 284 F. Supp. 371
• Decision Date: 01 May 1968
• Docket Number: Civ. No. 4539.
• Parties: The KROGER COMPANY v. ADKINS TRANSFER COMPANY, Inc., et al.
• Court: U.S. District Court — Middle District of Tennessee

284 F. Supp. 371

The KROGER COMPANY v. ADKINS TRANSFER COMPANY, Inc., et al.

Civ. No. 4539.

United States District Court M. D. Tennessee, Nashville Division.

May 1, 1968.

COPYRIGHT MATERIAL OMITTED

William Harbison, Nashville, Tenn., Andrew Johnson, W. P. O'Neil, Ben W. Williamson, Jr., Knoxville, Tenn., for plaintiff.

R. B. Parker, Jr., Nashville, Tenn., for defendants Adkins Transfer Co., Inc., and Adkins Cargo Express, Inc.

S. McP. Glasgow, Jr., Nashville, Tenn., for defendant Rooks Transfer Lines, Inc.

Walter Harwood, Nashville, Tenn., for defendant Tennessee Cartage Co., Inc.

John J. Hooker, Nashville, Tenn., for defendants Harold Dornbos and Beverly Dornbos, individually, and doing business as H. J. Dornbos & Bro.

MEMORANDUM AND ORDER

FRANK GRAY, JR., District Judge.

In this diversity action, the Kroger Company (hereafter Kroger) seeks indemnification for amounts expended in settling personal injury claims of various consumers who purchased allegedly deleterious "smoked white fish chubs" at certain Kroger retail stores in Kentucky, Tennessee, and Alabama. Kroger, a corporation organized under the laws of and having its principal place of business in Ohio, purchased the fish in question in September, 1963, from H. J. Dornbos & Bro., a Michigan partnership engaged in the processing and packaging of various fish products.

The following initially named defendants were the carriers involved in transporting this shipment of fish from the Dornbos plant in Grand Haven, Michigan, to the Kroger warehouse in Nashville, Tennessee: Rooks Transfer Lines, Inc. (hereafter Rooks), a Michigan corporation having its principal place of business therein (Grand Haven to Chicago, Illinois); Adkins Transfer Company, Inc. (hereafter Adkins),¹ an Indiana corporation having its principal place of business in Tennessee (Chicago to Nashville); and Tennessee Cartage Company, Inc. (hereafter Tennessee Cartage), a Tennessee corporation having its principal place of business within this State (Adkins' Nashville terminal to the Kroger warehouse). The required jurisdictional amount is apparent on the face of the complaint.

Various motions raising procedural and jurisdictional questions have been filed by the parties herein. These will be considered infra in the following sequence.

I

On February 2, 1968, Kroger filed a motion pursuant to Rule 15(a), Federal Rules of Civil Procedure, to amend its original complaint so as to join Harold Dornbos and Beverly Dornbos, individually, and doing business as H. J. Dornbos & Bro. (hereafter Dornbos) as additional parties defendant. The initial problem posed by this motion is whether the prior motions of Adkins for a more definite statement and for production and inspection pursuant to Rules 12(e) and 34, Federal Rules of Civil Procedure, respectively, and that of Rooks to dismiss the action as to it or, alternatively, to quash the return of summons, are "responsive pleadings" within the meaning of Rule 15(a) so as to defeat Kroger's right to amend as a matter of course. The bulk of the cases dealing with this point hold that pre-trial motions attacking pleadings, such as those filed herein by Adkins and Rooks, are not "responsive pleadings" within the purview of Rule 15(a). See, e. g., Fuhrer v. Fuhrer, 292 F.2d 140 (7th Cir. 1961); Kelly v. Delaware River Joint Commission, 187 F.2d 93 (3d Cir. 1951), cert. denied, 342 U.S. 812, 72 S. Ct. 25, 96 L.Ed. 614 (1951); Ohio Casualty Ins. Co. v. Farmers Bank of Clay, Ky., 178 F.2d 570 (6th Cir. 1949). Accordingly, since no responsive pleading had been filed at the time Kroger tendered its amended complaint, the motion to amend must be regarded as made in a timely manner.

A more complex issue raised by this motion to amend is the interrelated problem of the propriety of the joinder of Dornbos pursuant to Rule 19(a), Federal Rules of Civil Procedure, and of the allegation that Dornbos is subject to the jurisdiction of this court under the Tennessee "long-arm" statute, T.C.A. § 20-235 et seq. Rule 19(a) provides, in pertinent part, that:

"A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, * * *."

In response to Kroger's assertion of judicial jurisdiction by virtue of T.C.A. § 20-235 et seq., Dornbos has filed a motion seeking, inter alia, to dismiss this action as to it or, in lieu thereof, to quash the return of summons on the ground that it is not subject to the personal jurisdiction of Tennessee courts under the foregoing provisions. The common issue presented by both of the above motions, therefore, is whether Dornbos is subject to out-of-state service of process pursuant to T.C.A. § 20-235(b) which provides, in pertinent part, that:

"Jurisdiction of persons unavailable to personal service in state — Classes of actions to which applicable. — Persons who are nonresidents of Tennessee * * * are subject to the jurisdiction of the courts of this state as to any action or claim for relief arising from:

* * * * * *

"(b) Any tortious act or omission within this state;

* * * * * * "`Person' as used herein shall include corporations and all other entities which would be subject to service or sic: of process if present in this state. Any such person shall be deemed to have submitted to the jurisdiction of this state who acts in the manner above described through an agent or personal representative."

The resolution of this question involves the following two determinations: (1) whether the jurisdictional facts alleged by Kroger are such as to authorize service of process under T.C.A. § 20-235(b) and § 20-236 and, if so, (2) whether the exercise of in personam jurisdiction thus authorized is compatible with the due process clause of the Fourteenth Amendment. See Fayette v. Volkswagen of America, Inc., 273 F.Supp. 323, 326 (W. D.Tenn.1967); cf. Temco, Inc. v. General Screw Products, Inc., 261 F.Supp. 793, 796 (M.D.Tenn.1966).

The relevant² jurisdictional facts alleged in the amended complaint, in substance, are that Dornbos negligently processed, inspected, and shipped the fish in question in that certain inherently deleterious and potentially toxic substances were not rendered harmless. Kroger, alleging that it was unable to detect these contaminants, distributed this product to certain of its retail supermarkets where it was purchased by various customers who thereafter contracted a type of food poisoning which resulted in personal injuries and deaths. Consequently, certain actions were commenced in Tennessee and other jurisdictions charging Kroger with negligence, violations of State and Federal Pure Food and Drug Laws, and with breaches of warranty. Kroger, deeming itself legally liable, settled these claims allegedly after having given adequate notice to all defendants herein of the filing and pendency of these actions.

When viewed in the context of the foregoing allegations, it is clear that the first of the above inquiries calls for a construction of the statutory language "any tortious act or omission within this state."

At the outset, however, some attention must be given to the contention of Dornbos that T.C.A. § 20-235 et seq.³ cannot be applied retroactively to confer jurisdiction based on an event or transaction occurring prior to its passage. Upon consideration, it is the opinion of the court that the express language of T.C.A. § 20-239⁴ is dispositive of this question and, therefore, that this contention is without merit. See Note, Expanded Bases of Jurisdiction — An Examination of Tennessee's New "Long-Arm" Statute, 18 Vand.L.Rev. 1484, 1504 (1965).

The arguments raised by Dornbos in support of its conclusion that T.C.A. § 20-235(b) is inapplicable to the instant factual allegations are essentially twofold: first, that an action for indemnity is premised upon either an express or implied contract, not upon the allegedly tortious conduct of the indemnitor, and, secondly, that any allegedly tortious conduct for which it could be held liable occurred exclusively in Michigan and therefore did not take place "within this state" as is required by T.C.A. § 20-235(b).

This first contention is not well taken. In the closely analogous case of Beetler v. Zotos, 388 F.2d 243 (7th Cir. 1967), the court was faced with this same issue, that is, whether an action for indemnification against a nonresident indemnitor comes within § 17(1) (b) of the Illinois "long-arm" statute which predicates in personam jurisdiction, as does T.C.A. § 20-235(b), upon "the commission of a tortious act within this State."⁵ In concluding that out-of-state service of process pursuant to § 17(1) (b) was valid, the Court of Appeals reasoned that:

"an indemnitee, where he seeks to recover for damages paid for injuries caused by the negligent or wrongful act of the indemnitor, may proceed by action ex delicto, as by an action on the case — a tort action." (388 F.2d at 245) Citations omitted.

The second prong of Dornbos' attack on the applicability of T.C.A. § 20-235 (b) poses the more difficult question of whether this provision encompasses a situation where an injury within the forum is allegedly the proximate result of tortious conduct occurring without the forum. Since the only two reported decisions dealing with this aspect of T.C.A. § 20-235(b) reached opposite conclusions,⁶ it is necessary to search for additional precedential authority.

In Temco, Inc. v. General Screw Products, Inc., supra, this court discussed the substantial identity of the Tennessee and Illinois "long-arm" statutes:

"The similarity of the statutes indicates that the Illinois act may well have been a guide to the drafter of the Tennessee statute. This conclusion is reinforced by the fact that the Illinois law is one of the older "long-arm" statutes and has been copied by

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