Mohamed v. Mazda Motor Corp.

• Citation: 90 F.Supp.2d 757
• Decision Date: 27 March 2000
• Docket Number: No. 2:99-CV-0231(TH).,2:99-CV-0231(TH).
• Parties: Abdul Ali MOHAMED, Individually And As Next Friend For, Shehrazade Mohamed, A Minor Child, And As Representative of the Estate of Dr. Khaduah Abdul Ali Mohamed, Plaintiffs, v. MAZDA MOTOR CORPORATION, and Mazda Motor of America, Inc., Defendants.
• Court: United States District Courts. 5th Circuit. United States District Court of Eastern District Texas

90 F.Supp.2d 757

Abdul Ali MOHAMED, Individually And As Next Friend For, Shehrazade Mohamed, A Minor Child And As Representative of the Estate of Dr. Khaduah Abdul Ali Mohamed, Plaintiffs, v. MAZDA MOTOR CORPORATION, and Mazda Motor of America, Inc., Defendants.

No. 2:99-CV-0231(TH).

United States District Court, E.D. Texas, Marshall Division.

March 27, 2000.

Carl R. Roth, Michael Smith, Law Office of Carl R. Roth, Marshall, TX, Robert MN Palmer, Law Office of Robert MN Palmer, Springfield, MO, for plaintiffs.

Lewin Plunkett, Plunkett & Gibson, San Antonio, TX, for Mazda Motor of America Inc., defendant.

MEMORANDUM AND OPINION ORDER

HEARTFIELD, District Judge.

Before this Court is Defendant Mazda Motor of America, Inc. d/b/a Mazda North American Operations' Opposed Motion to Transfer for Improper Venue Or, In the Alternative, Opposed Motion to Transfer Venue Due to Inconvenient Forum [4]. Having considered the motion, the response, the reply to the response, the surreply to the reply, the "response" to the sur-reply, and the arguments of counsel, this Court DENIES SUBJECT TO REURGING AFTER FURTHER DISCOVERY Defendant Mazda's Opposed Motion to Transfer for Improper Venue or, In the Alternative, Opposed Motion to Transfer Venue Due to Inconvenient Forum [4] as to the motion to transfer for improper venue; and it DENIES Defendant Mazda's Opposed Motion to Transfer for Improper Venue or, In the Alternative, Opposed Motion to Transfer Venue Due to Inconvenient Forum [4] as to the motion to transfer under Title 28 U.S.C. § 1404(a).

1. Facts and Procedural History

On October 22, 1998 Dr. Khadijah Mohamed was driving down Greenville Avenue in Dallas, Texas. Dr. Khadijah Mohamed, driving a Mazda Protege sedan, pulled into Greenville's intersection with Park Lane. While trying to turn left onto eastbound Park Lane, Dr. Khadijah Mohamed collided with a pick-up truck driven by Gregory J. Graham. Dr. Khadijah Mohamed did not survive the collision.

On November 19, 1999 Dr. Khadijah Mohamed's surviving husband, Dr. Abdul Mohamed, individually, as representative of her estate, and as next friend of their seven-year-old daughter, instituted this wrongful death and survival action asserting product liability claims against Defendants Mazda Motor Corporation and Mazda Motor of America, Inc., which manufactured and sold his wife's sedan. Specifically, Dr. Abdul Mohamed alleges that his wife was restrained only by the passive shoulder belt which failed to prevent her death; moreover, Dr. Mohamed alleges the passive shoulder belt, in fact, inflicted injuries which proximately caused her death.

On December 13, 1999 Defendant Mazda Motor of America, Inc. d/b/a Mazda North American Operations' filed its Opposed Motion to Transfer for Improper Venue or, In the Alternative, Opposed Motion to Transfer Venue Due to Inconvenient Forum ("Mazda's Motion to Transfer") [4]. After receiving a response, a reply to the response, a sur-reply to the reply, and a "response" to the sur-reply, this Court now feels confident it can rule on Mazda's Motion to Transfer [4]. It's DENIED.

2. Rule 12(b) Motion to Dismiss or Transfer for Improper Venue

A. Timing for Improper Venue Motion Compared to Transfer for Convenience Motion

Rule 12(h) of the Federal Rules of Civil Procedure reads in relevant part:

(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

FED.R.CIV.P. 12(h)(1). First, this Court notes that this rule speaks to improper venue — not transfer of venue for convenience of the parties and the witnesses under Title 28 U.S.C. § 1404(a).¹ Professors Wright, Miller, and Cooper: "Section 1404(a) sets no limit on the time at which a motion to transfer may be made. Such a motion is not an objection to improper venue, which, under Rule 12(b), would be required to be made before the answer." CHARLES A. WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE ("WRIGHT, MILLER, & COOPER") § 3844, at 334-335 (2d ed.1986) (emphasis added) (citing American Standard v. Bendix Corp., 487 F.Supp. 254, 261 (D.C.Mo.1980); Nowotny v. Turner, 203 F.Supp. 802 (D.C.N.C.1962); and Spence v. Norfolk & W. Ry. Co., 89 F.Supp. 823 (D.C.Ohio 1950)). In fact, a Section 1404(a) transfer motion can technically be made at any time. In American Standard the district court held that a delay of four years in bringing a transfer motion did not, in itself, bar the motion. 487 F.Supp. at 261. The district court found the motion "timely" since the four-year delay had not been shown to be "a dilatory tactic, or that the defendant would be prejudiced solely because of the delay." Id.

Of course, crafty litigants can't ambush their opponents with a tactical Section 1404(a) transfer motion on the eve of trial. "A motion to transfer should be made with `reasonable promptness.'" Henderson v. AT & T Corp., 918 F.Supp. 1059, 1065 & n. 6 (S.D.Tex.1996) (citing Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir.), cert. denied, 493 U.S. 935, 110 S.Ct. 328, 107 L.Ed.2d 318 (1989)). Reasonable promptness? What's that? If a litigant resisting transfer successfully shows the Section 1404(a) transfer motion is a dilatory tactic, or that it would be prejudiced solely because of the delay in bringing the motion, then the litigant moving for transfer has failed to show "reasonable promptness" in bringing his transfer motion. See American Standard, 487 F.Supp. at 261; Peteet, 868 F.2d at 1436. Nevertheless, unlike a motion to dismiss for improper venue, there is absolutely no reason why a litigant seeking a Section 1404(a) transfer must so move before the original answer.

B. Improper Venue

Defendant Mazda argues the Plaintiffs have improperly filed suit in the Eastern District of Texas. Title 28 U.S.C. § 1391(c) provides that a case may be brought in "a judicial district where any defendant resides, if all defendants reside in the same state."² 28 U.S.C. § 1391(c). Defendant Mazda first argues that venue is improper because "a manufacturer or national distributor may only be subject to personal jurisdiction where the product caused injury." MNAO's Reply to Plaintiffs' Response to Defendant's Motion to Transfer Venue [20] at p. 2 (emphasis added). To bolster this unique proposition, Defendant Mazda cites the following passage from the Rutter Group Practice Guide: Federal Civil Procedure Before Trial:

Manufacturer or national distributor.

A manufacturer or national distributor (as distinguished from a retailer or local distributor) may be subject to personal jurisdiction wherever the product causes injury. It is enough that the manufacturer of distributor "purposefully" attempts to serve a market in the forum state. Local courts may properly "assert personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state."

Rutter Group Practice Guide: Federal Civil Procedure Before Trial ("Practice Guide"), § 3.175 (5th Cir. ed.1999) (emphasis in original). Did you notice something different between Defendant Mazda's proposition and the passage used to support it? The word "only." Defendant Mazda artificially injects "only" into the passage to support its proposition that all across the country aggrieved plaintiffs must sue manufacturers where the product causes the injury, regardless whether the manufacturer is subject to personal jurisdiction in other forums. Defendant Mazda's entire argument rests upon the erroneous belief that manufacturers may only be subject to "specific" personal jurisdiction where the product causes injury, thereby nullifying "general" personal jurisdiction in product liability cases.

Well the very authority Defendant Mazda uses to argue it can force plaintiffs to sue only where the injury occurs belies such a puzzling interpretation of the law:

Effect: Where general jurisdiction exists, the defendant can be sued on any claim arising anywhere. Such jurisdiction will be found where defendant is engaged in substantial interstate business (e.g., a major car manufacturer, airline, etc.).

Practice Guide, ¶ 3:104 (italics in original; underline added). The Hittner treatise uses entities such as major car manufacturers as the veritable poster children for general personal jurisdiction — precisely the Plaintiffs' basis for jurisdiction in this case — since they have sued both the vehicle manufacturer (who has not yet appeared) and the national distributor. Suffice it to say major car manufacturers or national distributors, like Defendant Mazda, may be subject to general personal jurisdiction in this Court in product liability cases.

C. Personal Jurisdiction

"Under the Federal Rules of Civil Procedure, a federal court in a diversity case may exercise jurisdiction over a nonresident corporate defendant only if permitted by state law." Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 214 (5th Cir.2000) (citing FED.R.CIV.P. 4(e)(1), 4(h)(1), and 4(k)(1)). The Texas long-arm statute:

In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:

(1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;

(2) commits a tort in whole or in part in this state; or

(3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.

TEX.CIV.PRAC. & REM.CODE.ANN. § 17.042 (Vernon 1997). "Under the Texas long-arm statute, a court has personal jurisdiction over a foreign defendant to the fullest...