Precision IBC, Inc. v. Wagner Ink, Inc.

• Decision Date: 19 April 2013
• Docket Number: CA 1:12-00671-C
• Parties: PRECISION IBC, INC., Plaintiff, v. WAGNER INK, INC., ALBERT WAGNER, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

PRECISION IBC, INC., Plaintiff,

v.WAGNER INK, INC., ALBERT WAGNER, et al., Defendants.

CA 1:12-00671-C

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE: April 19, 2013

MEMORANDUM OPINION AND ORDER

The parties have consented to the exercise of jurisdiction by the undersigned Magistrate Judge for all proceedings in this Court pursuant to 28 U.S.C. § 636(c). And presently before the Court is a motion to dismiss for lack of personal jurisdiction filed by both named defendants, Wagner Ink, Inc. and Albert Wagner (also referred to collectively as, simply, the defendants), which also requests, in the alternative, the transfer of this action to the United States District Court for the Eastern District of New York. (Doc. 14.) The plaintiff, Precision, has filed an opposition (Doc. 17), and the defendants have filed a reply (Docs. 21, 24-1). As explained fully below, the Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction is due to be DENIED as to Defendant Wagner Ink, Inc. and GRANTED as to Defendant Albert Wagner. The alternative motion to transfer venue pursuant to 28 U.S.C. § 1404(a) is due to be DENIED.

I. Precision's Motions to Strike.

First, however, the Court must address Precision's motions requesting the Court strike (1) Albert Wagner's affidavit in support of the motion to dismiss/transfer venue (Doc. 14-2) because that "affidavit is replete with improper qualifications that areinsufficient to establish the existence of a 'fact' based upon personal knowledge[]" (see Doc. 18); (2) the defendants' original reply brief (Doc. 21) because it is twice the length allowed by Local Rule 7.1(b) and presents new arguments not raised in the defendants' principal brief (see Doc. 23); and (3) Albert Wagner's amended affidavit (Doc. 21-1), which Precision asserts contradicts his previous affidavit (see Doc. 23).

While the Court will exercise its discretion to consider Precision's evidentiary objections to Wagner's affidavits "on an ongoing basis herein, and only to the extent necessary to resolve the pending" motion, King v. Alabama Dep't of Pub. Health, Civil Action No. 09-0503-WS-C, 2010 WL 3522381, at *1 n.1 (S.D. Ala. Sept. 2, 2010),¹ it should be noted, at the outset, that Precision's continued efforts to strike Wagner's affidavit(s), after Wagner filed an amended affidavit, is a waste of the Court's and the parties' resources.

First, as one court noted, in the context of summary judgment, "[i]t is the function of a court, with or without a motion to strike, to review carefully both statements of material facts and statements of genuine issues and the headings contained therein and to eliminate from consideration any argument, conclusions, and assertions unsupported by the documented evidence of record offered in support of the statement." Rangel v. Schmidt, Cause No. 2:09-CV-071, 2011 WL 5570691, at *4 (N.D. Ind. Nov. 16, 2011) (denying motion to strike certain paragraphs in a plaintiff's "Clarified Affidavit"—which, in part, asserted the affidavit contained "speculation that [fell] outside [plaintiff's] personal knowledge"—noting, "Motions to strike are heavilydisfavored, and usually only granted in circumstances where the contested evidence causes prejudice to the moving party. This Court can give Rangel's Clarified Affidavit the credit to which it is due, without the need to employ a motion to strike. The Court is able to sift through the evidence and to consider each piece under the applicable federal rules . . . .") (citations omitted); compare id., with Serrano v. Cablevision Sys. Corp., 863 F. Supp. 2d 157, 163 (E.D.N.Y. 2012) (noting, for example, a court may choose to either strike or "simply decline to consider those aspects of a supporting affidavit that do not appear to be based on personal knowledge or are otherwise inadmissible") (citations omitted).

Moreover, courts, rightly, frown upon continued efforts to strike affidavits where an affiant files a second affidavit "indicating that the information contained within [the initial] affidavit is based on his personal knowledge." United Steelworkers of Am., AFL-CIO-CLC v. Hempt Bros., Inc., 866 F. Supp. 164, 166 (M.D. Pa. 1994) (finding such objections to be "not persuasive")² ; cf. Whitehead v. Pilgrim's Pride Corp., No. Civ.A. 05-1323-A, 2006 WL 220834, at *2 (W.D. La. Jan. 27, 2006) ("We are perplexed by two things surrounding Defendants' request. First, Defendants failed to cite any authority in which a court refused to consider an affidavit if the declarant appeared to have personal knowledge and to be competent, but failed to make such affirmative statements. Second, we are surprised Plaintiffs did not solve the problem, as is often done, by filing a supplemental affidavit following Defendant's Motion to Strike, inwhich Plaintiffs would have added language to inform us that Mr. Whitehead was competent and had personal knowledge, if those things are in fact true.") (emphasis added).

Accordingly, while the Court will "review carefully" the statements in Wagner's affidavit, as amended, to ensure that such statements are based on Wagner's personal knowledge (as it would without the benefit of motions to strike), Precision's motions to strike as to the affidavits are DENIED as unnecessary. As to the defendants' allegedly improper initial reply brief, the Court GRANTS their motion for leave (Doc. 24) to file a substitute, conforming reply brief (Doc. 24-1), and will only consider the arguments they present therein. Cf. King, 2010 WL 3522381, at *1 n.1. Therefore, Precision's first motion to strike (Doc. 18) is DENIED; Precision's second motion to strike (Doc. 23) is GRANTED IN PART and DENIED IN PART; and the defendants' original reply brief (Doc. 21) is STRICKEN.

II. Relevant Background.³

Precision is a Delaware corporation that maintains its principal place of business in Alabama (Doc. 1, compl., ¶ 1), whereas New York is the domicile of Defendant Albert Wagner and where Defendant Wagner Ink is incorporated and maintains its principal place of business (compare id., ¶¶ 2, 3, with Doc. 14-2, Wagner Aff., ¶¶ 1, 2). "Precision is in the business of selling and leasing intermediate bulk containers[, alsoreferred to as "tanks,"] designed to store and transport hazardous and sensitive materials like petroleum, chemicals, pharmaceuticals, and food products" (Doc. 17-1, Wolfe Aff., ¶ 2), and, during the relevant time, Wagner Ink "was a manufacturer and distributor of ink for use in commercial printing, generally for use by printing shops" (Doc. 14-2, ¶ 3).⁴

Wagner Ink contacted Precision in January 2009 to inquire about leasing two tanks. (Doc. 17-1, ¶ 3.) Thereafter, over the span of more than two years, Precision and Wagner Ink entered into three separate lease-purchase agreements: in January 2009, for the lease of two tanks; in March 2010, for the lease of twelve tanks; and in March 2011, for the lease of fifteen tanks. (Doc. 1, ¶¶ 11-13.) As with the first lease-purchase agreement, Wagner Ink contacted Precision to inquire about entering the second and third agreements. (Doc. 17-1, ¶¶ 4, 6.) All three agreements, which "were identical except for the quantity of Tanks, their respective execution dates, and the rental price per month for each Tank" (Doc. 1, ¶ 14), required, among other things, that the monthly rental fee be paid to Precision at its principal office in Fairhope, Alabama and that Alabama law governed (id., ¶¶ 15, 16).

According to Precision, Wagner Ink was "frequently late making its monthly rental payments" under the first agreement. (Doc. 17-1, ¶ 3.) Precision thus required Wagner Ink "to pay the past due rent under the first agreement before [it] would consider leasing Wagner Ink additional tanks. Wagner Ink paid the past due amount to Precision in Fairhope and assured Precision that going forward [it] would timely paythe monthly rental fees in accordance with the agreements." (Id., ¶ 4.) But, according to Precision, late payments persisted, and, like before, Precision required payment of past due rental amounts owed pursuant to the first two agreements and assurance that payments would be timely going forward before entering into the third lease-payment agreement. (Id., ¶ 6.) After execution of the third agreement, Precision alleges, Wagner Ink sent it a worthless check and ceased paying Precision the monthly rental fees in violation of the three lease-purchase agreements; it then contacted Wagner Ink, through its president, Albert Wagner, to demand payment of the rental fees and the return of/payment for the tanks. (Doc. 1, ¶¶ 22, 23; Doc. 17-1, ¶ 7.) Precision further alleges that, in response, Wagner Ink and Albert Wagner stated that they had already sold the tanks "to third parties and had given the proceeds of the sale to their creditors." (Doc. 1, ¶ 24.)

As to the named defendants, the complaint states causes of action for breach of contract (against Wagner Ink) and, as to both Wagner Ink and Albert Wagner, conversion, wantonness, unjust enrichment, and money had and received.

III. Personal Jurisdiction.

The named defendants assert that this Court lacks personal jurisdiction over them under either a traditional Due Process analysis or pursuant to the Calder "effects" test for intentional torts. Precision asserts that the Court has personal jurisdiction over both defendants pursuant to the "effects" test and that the Court may assert jurisdiction over Wagner Ink under a traditional Due Process analysis. Specifically, in the introduction to its response, Precision provides:

This Court has specific personal jurisdiction over the defendants because both Wagner Ink and Albert Wagner engaged in intentional tortious conduct aimed at and with full knowledge that their conduct would causeinjury to an Alabama resident. The defendants' intentional tortious conduct alone is sufficient to establish specific jurisdiction over both defendants.

Moreover, this Court has specific jurisdiction over

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