Naegler v. Nissan Motor Co., Ltd., 92-1127-CV-W-3.

• Decision Date: 20 October 1993
• Docket Number: No. 92-1127-CV-W-3.,92-1127-CV-W-3.
• Parties: Kirk D. NAEGLER, Plaintiff, v. NISSAN MOTOR CO., LTD., et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

835 F. Supp. 1152

Kirk D. NAEGLER, Plaintiff, v. NISSAN MOTOR CO., LTD., et al., Defendants.

No. 92-1127-CV-W-3.

United States District Court, W.D. Missouri, W.D.

October 20, 1993.

Timothy H. Bosler, Kansas City, MO, for plaintiff.

John P. Poland, Randall R. Rhodes, Thomas O. Baker, Baker, Sterchi & Cowden; and Michael E. Waldeck, and Julie J. Gibson, Niewald, Waldeck & Brown, P.C., Kansas City, MO, for defendants.

MEMORANDUM OPINION AND ORDER

ELMO B. HUNTER, Senior District Judge.

This action is brought by plaintiff Kirk D. Naegler against defendants Nissan Motor Company, Ltd. (Nissan Japan), Nissan Motor Corporation in U.S.A. (Nissan America) and Teddy Rowe. Plaintiff is seeking damages for injuries he alleges he received as a result of a vehicular accident that occurred while he was a passenger in a 1988 four-door Stanza Nissan owned and driven by defendant Teddy Rowe. The action sounds in negligence and products liability. Each defendant has moved for dismissal of the action on grounds that this Court lacks in personam jurisdiction. The relevant jurisdictional facts follow.

Plaintiff Kirk Naegler is a natural person over eighteen (18) years of age who presently resides in Johnson County, Missouri. Nissan Japan is a Japanese Corporation with its principal place of business in Japan. It is not licensed or registered to do business in Missouri and does not have a registered agent in Missouri. Nissan America is a California Corporation with its principal place of business in California. Nissan America is not licensed or registered to do business in Missouri and does not have a registered agent in Missouri. Defendant Teddy Rowe is a natural person residing in Radcliff, Kentucky.

The vehicular accident giving rise to this action allegedly occurred on December 7, 1989, when a 1988 four-door Stanza Nissan owned and driven by defendant Teddy Rowe collided with another vehicle on Staatsstrasse 2307, in Feldkahl, Germany. The vehicle in question was manufactured by Nissan Japan at its plant in Kanagawa, Japan. The vehicle was sold to Nissan Motor Deutschland GmbH (not a party in this suit) and shipped from Japan to Bremerhaven, Germany. Ultimately the vehicle was sold to defendant Rowe by Military Car Sales of Aschaffenburg, Germany.¹

I.

The testing of personal jurisdiction, in this case, requires the Court to make a two-step inquiry: first, the Court must consider whether the Missouri long-arm statute authorizes service and jurisdiction; and, if so, such assertion of personal jurisdiction must comport with constitutional notions of due process and fair play. Fairbanks Morse Pump Corp. v. ABBA Parts, Inc., 862 F.2d 717, 718-19 (8th Cir.1988). The first prong of this analysis is controlled by state law, the second by federal law. Id.

The Missouri long-arm statute provides that non-residents are subject to service of process if they, among other things, commit a tortious act within the state, MO.ANN. STAT. § 506.500.1 (Vernon Supp.1993), provided that the cause of action arises from such tortious act, MO.ANN.STAT. § 506.500.3 (Vernon Supp.1993).² See also United Missouri Bank of Kansas City, N.A. v. Bank of New York, 723 F.Supp. 408, 410 (W.D.Mo. 1989); Cunningham v. Subaru of America, Inc., 620 F.Supp. 646, 646-47 (W.D.Mo.1985). Here, plaintiff bears the burden of establishing that personal jurisdiction exists. See generally United Missouri Bank, 723 F.Supp. at 410. Accordingly, to meet the requirements of Missouri's long-arm statute plaintiff's causes sounding in negligence and products liability must have a sufficient nexus to the tortious actions committed by the defendants within the state of Missouri.

A. DEFENDANT ROWE

Plaintiff alleges that defendant Rowe's negligent operation of the motor vehicle in question here contributed to or resulted in serious internal and spinal injuries for which the plaintiff is seeking damages. Plaintiff alleges that defendant Rowe was negligent in driving while he was impaired by alcohol; that he was driving in violation of certain provisions of the Uniform Code of Military Justice; that he was driving at an excessively high rate of speed; that he failed to keep his vehicle under control; and that he was following another vehicle too closely. As a result, defendant Rowe lost control of his vehicle, crossed into the oncoming lane, and collided head on with another vehicle. All of the above-described conduct took place while defendant Rowe was driving his car in Feldkahl, Germany.

Plaintiff has failed to allege the commission of any tortious act or acts by defendant Rowe within the state of Missouri. Accordingly, plaintiff has failed to meet his burden under the first prong of the Court's jurisdictional analysis as it relates to defendant Rowe. Having failed the first prong, the Court need not proceed to the second step of the analysis.

B. DEFENDANT NISSAN JAPAN

Plaintiff was a passenger in the rear seat of defendant Rowe's vehicle at the time it was involved in the above-described accident. Plaintiff pleads that the absence of rear upper torso restraints caused or contributed to the injuries he sustained in the accident. He contends that defendant Nissan of Japan was negligent in failing to properly design and test appropriate rear seat restraints. He further contends that, as a result, the vehicle was defective when it entered the stream of commerce.

It is important to note that none of the above-described acts occurred in Missouri. Indeed, from the pleadings it appears clear that the vehicle in question did not enter or move in the stream of commerce in Missouri, nor did the accident in question occur in Missouri. It appears the vehicle was manufactured in Japan, and subsequently sold and shipped to a German corporation. Eventually it wound up in the hands of Military Car Sales of Aschaffenburg, Germany, which sold it to defendant Rowe. As noted above, the accident in question also happened in Germany.

Again, plaintiff has failed to allege the commission of any tortious act or acts by defendant Nissan Japan within the state of Missouri. Even if the Court assumes, although it is not clear from the pleadings, that defendant Nissan Japan has established sufficient contacts with Missouri through the operation of its enterprise unrelated to the manufacture, design or sale of the vehicle in question, personal jurisdiction would not obtain in this case. The Missouri long-arm statute requires that the instant cause of action arise from the act or acts supplying the basis of the lawsuit. See Cunningham, 620 F.Supp. at 646-47. "In short, plaintiff has demonstrated no factual connection between the litigation and the forum sufficient to sustain longarm jurisdiction over defendant" Nissan Japan. Id. at 648. Accordingly, plaintiff has failed to meet his burden under the first prong of the Court's jurisdictional analysis as it relates to defendant Nissan Japan.

C. DEFENDANT NISSAN AMERICA

From the pleadings, it appears that Nissan America was not involved in any manner with the design, manufacture, distribution or sale of the vehicle in question. In fact, at this point, there appears no credible allegation that Nissan America committed any tortious act in Missouri. Accordingly, plaintiff has again failed to meet his burden under the first prong of the Court's jurisdictional analysis as it relates to defendant Nissan America.

II.

Plaintiff strongly urges that the fact that a Missouri resident was injured, albeit in an accident that occurred in Germany, amounts to the "commission of a tortious act within the forum state" per the Missouri long-arm statute. MO.ANN.STAT. § 506.500.1(3) (Vernon Supp.1993). To be sure the Missouri courts have held that the "commission of a tortious act within this state includes extraterritorial acts of negligence producing actionable consequences in Missouri." See e.g. State ex rel. Ranni Assocs. v. Hartenbach, 742 S.W.2d 134, 139 (Mo. banc 1987) (citations omitted).

Notwithstanding the general language used by the courts, this rule is not without limitation. Plaintiff urges that the fact that the economic consequences of the accident accrued against a Missouri resident amounts to an extraterritorial act producing actionable consequences within the forum state. The Court disagrees. The mere fact that a Missouri resident may feel the economic or financial loss as a result of out-of-state activities is not, by itself, enough to meet the requirements of Missouri's long-arm statute. See generally id. at 138 (because someone in Missouri could conceivably suffer a loss as a result of defendants out-of-state activities does not, standing alone, make defendants amenable to the courts of this state); see also State ex rel. Pain Anesthesia & Critical Care Servs., P.A. v. Ryan, 728 S.W.2d 598, 604 (Mo.App.1987) (court rejected argument that, in a case involving a surgical procedure that took place in Kansas, a non-resident defendant who negligently treated and caused a permanent injury to a Missouri resident "caused an effect" in Missouri sufficient to implicate Missouri's long-arm statute).

The general rule that a "commission of a tortious act within this state includes extraterritorial acts of negligence producing actionable consequences in Missouri" is limited by the due process concept of "minimum contacts" as articulated by the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), and its progeny. See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The courts interpreting Missouri's long-arm statute have held that jurisdiction accrues against a non-resident defendant under the long-arm statute "only if some portion of its `minimum contacts' with, or activities within, Missouri gives rise to the asserted action," see, e.g., Wooldridge v. Beech Aircraft Corp., 479 F.Supp. 1041, 1054-55 (W.D.Mo.1979), or if the extra-territorial act or acts...