Miller v. Sms Schloemann-Siemag, Inc.

• Decision Date: 15 May 2002
• Docket Number: No. CIV.A.2:00-0896.,CIV.A.2:00-0896.
• Citation: 203 F.Supp.2d 633
• Parties: Donna MILLER, individually and as Administratrix of the Estate of Charles Miller, Plaintiff, v. SMS SCHLOEMANN-SIEMAG, INC., Defendant.
• Court: U.S. District Court — Southern District of West Virginia

203 F.Supp.2d 633

Donna MILLER, individually and as Administratrix of the Estate of Charles Miller, Plaintiff, v. SMS SCHLOEMANN-SIEMAG, INC., Defendant.

No. CIV.A.2:00-0896.

United States District Court, S.D. West Virginia, Charleston Division.

May 15, 2002.

Guy R. Bucci, Esquire, Timothy C. Bailey, Bucci Bailey & Javins L.C., Charleston, WV, for Plaintiff.

Arnd N. von Waldow, Douglas E. Cameron, Reed Smith Shaw & McClay, LLP, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Prior to removal, Plaintiff Donna Miller, in her individual and representative capacity, filed a seven hundred (700) page packet of material containing the briefing, record, and hearing transcript relating to the motion to dismiss for lack of personal jurisdiction asserted by Defendant SMS Scholemann-Siemag Inc. (SMS) in state court.

After conducting a careful review of the materials, along with the additional briefing submitted by both parties, the Court FINDS and CONCLUDES Plaintiff has made a prima facie showing to support the exercise of personal jurisdiction. Accordingly, the Court DENIES the motion for dismissal based on Rule 12(b)(2), Federal Rules of Civil Procedure.

I. FACTUAL BACKGROUND

In 1996, SMS, a Pennsylvania corporation, contracted with Hyundai Industries, Co., Ltd. (Hyundai) to design, build, and install a continuous steel casting machine for Dongkuk Steel Mill Ltd. (Dongkuk) in South Korea. The contract was negotiated and signed in Pennsylvania and South Korea. Neither the design, manufacture, nor any part of the performance of that contract, took place in West Virginia.

SMS entered subcontracts with other entities to facilitate the project. One subcontractor was Industrial Controls and Engineering, Inc. (ICE), which provided the machine's instrumentation. ICE later subcontracted with AIG. AIG was hired to resolve instrument calibration anomalies at the Dongkuk facility. Neither ICE nor AIG appear to be West Virginia corporations. AIG contracted with BAS Technical Employment Placement Company (BAS), a West Virginia corporation, to actually perform the work. BAS, in turn, employed Plaintiff's decedent, Charles Miller. Before hiring Miller, however, a BAS employee drove him from West Virginia to Pennsylvania for a meeting with SMS representatives. An SMS official, along with others, participated in the interview. Eventually, Miller was dispatched by BAS to the Dongkuk facility. On December 28, 1997 Miller was performing repairs at the Dongkuk steel casting factory. A malfunction occurred during the manufacturing process causing molten steel to spill, melt through a blower fan assembly, and pour onto Miller. Miller attempted to put out the flames burning his flesh by rolling on the floor and using two nearby fire extinguishers. Neither worked. His clothes were burned off by the time Brett Christman, an SMS employee, located him on a stairwell. Miller suffered burns to over 2/3 of his body.

Mr. Miller was taken to several South Korean hospitals. Concerned with the level of care he was receiving, Plaintiff Donna Miller requested her husband be transported to a critical care burn unit in the United States. Her requests to SMS for help were refused. Later, however, an SMS official presented Mrs. Miller a written proposal in her hotel room. SMS agreed to pay the cost of transport provided the Millers promised, inter alia, not to treat the transport as an SMS admission of liability for the accident. Mrs. Miller's affidavit explains:

Under the extreme duress of the circumstances in which I found myself, and without any alternative I signed the SMS ... document so that my husband, Charles Miller, would be transported to the United States to receive proper treatment in a critical care burn treatment center equipped and staffed to treat his life-threatening third degree burns which covered over sixty-eight (68%) of his body .... (Aff. of Donna Miller ¶ 11.) Unfortunately, Mr. Miller died of his injuries after returning to the United States.

In November 1999 the widowed Plaintiff instituted this action against BAS and SMS in the Circuit Court of Kanawha County. She alleged a deliberate-intention claim against BAS pursuant to West Virginia Code Sections 23-4-2(b) and (c)(2)(ii), asserting BAS "took no steps to ensure safe work environments would be provided for its employees" at its assigned jobs. (Compl.¶ 8.)

Compared with the clarity of her claim against BAS, however, her claims against SMS are somewhat vague. First, the style of the case reads, in part, "DONNA MILLER, individually and as Administratrix of the ESTATE OF CHARLES MILLER." (Compl. at 1 (emphasis added).) Second, Count IV reads:

56. Plaintiff realleges paragraphs 1 through 27 in Count IV of her Complaint.

57. The actions of the defendant SMS in requiring Donna Miller to execute under duress a release of claims before transporting the decedent Charles Miller to appropriate medical facilities is of such an outrageous and unconscionable nature as to shock the reasonable person. As such, this wilful and wanton conduct is of a nature to allow an award of punitive damages against defendant SMS.

(Id. ¶¶ 56 and 57.) Some of the incorporated allegations include:

19. Decedent Charles Miller was transported to various hospitals in [South] Korea where the conditions, including sterility of the facility and the qualifications of physicians, caused grave concern to decedent's wife, Donna Miller.

20. After repeated requests that her husband be transported to the United States for the best care given his horrific injuries, defendants agreed to pay for the substantial cost of such transportation only if Donna Miller signed a release of claims related to her husband's injuries.

21. Under duress and the extraordinary circumstances under which Donna Miller found herself, without advice or aid of counsel, she executed a release as the only means to have her husband transported to a reputable burn center in the United States.

(Id. ¶¶ 19-21.)

Prior to removal, SMS had pending before the Circuit Court of Kanawha County a motion to dismiss for lack of personal jurisdiction. As noted, the briefing was extensive.¹ After some time, Judge King's secretary informed the parties Plaintiff should submit a proposed Order denying the motion to dismiss. While the proposed Order was awaiting Judge King's signature, SMS removed.²

II. DISCUSSION

A. Governing Standard

Since no decision had been entered by Judge King prior to removal, the Court has reviewed the entire record submitted by the parties de novo.

One applicable long arm statute³ is found in West Virginia Code Section 31-1-15. Section 31-1-15 provides:

Any foreign corporation which shall conduct affairs or do or transact business in this state without having been authorized so to do pursuant to the provisions of this article shall be conclusively presumed to have appointed the secretary of state as its attorney-in-fact with authority to accept service of notice and process on behalf of such corporation and upon whom service of notice and process may be made in this state for and upon every such corporation in any action or proceeding described in the next following paragraph of this section....

For the purpose of this section, a foreign corporation not authorized to conduct affairs or do or transact business in this state pursuant to the provisions of this article shall nevertheless be deemed to be conducting affairs or doing or transacting business herein (a) if such corporation makes a contract to be performed, in whole or in part, by any party thereto, in this state, [or] (b) if such corporation commits a tort, in whole or in part, in this state .... The making of such contract ... [or] the committing of such tort ... shall be deemed to be the agreement of such corporation that any notice or process served upon, or accepted by, the secretary of state pursuant to the next preceding paragraph of this section in any action or proceeding against such corporation arising from, or growing out of, such contract [or] tort ... shall be of the same legal force and validity as process duly served on such corporation in this state.

Id. (emphasis added).

In In re Celotex Corp., 124 F.3d 619 (4th Cir.1997), the Court of Appeals discussed the standards for determining whether a defendant is subject to personal jurisdiction:

In order for a court to validly exercise personal jurisdiction over a non-resident defendant: (1) a statute must authorize service of process on the non-resident defendant, and (2) the service of process must comport with the Due Process Clause. Because the West Virginia long-arm statute is coextensive with the full reach of due process, it is unnecessary in this case to go through the normal two-step formula for determining the existence of personal jurisdiction. Rather, the statutory inquiry necessarily merges with the Constitutional inquiry....

A court's exercise of personal jurisdiction over a non-resident defendant is consistent with the Due Process Clause if the defendant has sufficient "minimum contacts" with the forum such that requiring the defendant to defend its interests in the forum does not "offend `traditional notions of fair play and substantial justice.'" Later cases have clarified that the minimum contacts must be "purposeful." This "purposeful" requirement rests on the basic premise that traditional notions of fair play and substantial justice are offended by requiring a non-resident to defend itself in a forum when the non-resident never purposefully availed itself of the privilege of conducting activities within the forum, thus never invoking the benefits and protections of its laws. Moreover, this "purposeful" requirement "helps ensure that non-residents have fair warning that a particular activity may subject them to litigation within the forum."

When, as here, a court's power to exercise personal jurisdiction over a non-resident defendant is...