Rounds v. Rea, 95-CV-0497S(F).

• Decision Date: 26 November 1996
• Docket Number: No. 95-CV-0497S(F).,95-CV-0497S(F).
• Citation: 947 F.Supp. 78
• Parties: Adrianne M. ROUNDS, Plaintiff, v. Robert REA, Grand River Transportation, Inc., Musial Leasing, Inc., and Rush Truck Leasing, Defendants.
• Court: U.S. District Court — Western District of New York

947 F.Supp. 78

Adrianne M. ROUNDS, Plaintiff, v. Robert REA, Grand River Transportation, Inc., Musial Leasing, Inc., and Rush Truck Leasing, Defendants.

No. 95-CV-0497S(F).

United States District Court, W.D. New York.

November 26, 1996.

COPYRIGHT MATERIAL OMITTED

James J. Moran, P.C., Williamsville, New York (F. David Rusin, of counsel), for Plaintiff.

Saperston & Day, P.C., Buffalo, New York (Lynda M. Tarantino and Kenneth A. Krajewski, of counsel), for Defendants.

DECISION and ORDER

FOSCHIO, United States Magistrate Judge.

JURISDICTION

The parties to this matter executed a consent to proceed before the undersigned on November 22, 1995. The matter is presently before the court on Defendants' motion for summary judgment, dated July 19, 1996; Defendants' motion for a protective order, dated August 7, 1996; and, Plaintiff's motion to amend the complaint, dated August 30, 1996.

BACKGROUND

Plaintiff, Adrianne M. Rounds, filed this diversity action on June 21, 1995 alleging serious personal injuries based on an automobile accident which occurred on January 21, 1994 in Pennsylvania. Plaintiff is a resident of New York. Defendant Rea is an Ohio resident. Defendants Grand River Transportation and Musial Leasing, Inc. are Ohio corporations. Defendant Rush Truck Leasing is a Michigan corporation.

On July 19, 1996, Defendants filed a motion for summary judgment seeking dismissal of the action based on a lack of personal jurisdiction, along with a memorandum of law. Thereafter, on August 7, 1996, Defendants filed a motion for a protective order seeking a stay of discovery pending disposition of the summary judgment motion.

On August 30, 1996, Plaintiff filed a motion to amend the complaint seeking to amend the name of Defendant Rush Truck Leasing to Rush Trucking Corporation; to add a paragraph to the complaint regarding § 5102 of New York State Insurance Law, and to add a paragraph as to personal jurisdiction in New York. On the same day, Plaintiff filed four affidavits seeking to establish the presence of Rush Trucking in New York as a common carrier, and additionally stating that Rea, contrary to his assertion, had been driving in New York prior to the accident. Plaintiff also filed an opposing memorandum of law. On September 3, 1996, Defendants filed a reply memorandum.

Oral argument on the motion was deemed unnecessary.

For the reasons as set forth below, Defendants Rea, Grand River Transportation, and Musial Leasing's motion for summary judgment is GRANTED; Defendant Rush Trucking's motion for summary judgment is DENIED; Plaintiff's motion to amend the complaint is GRANTED as to Rush Trucking only; and, Defendants' motion for a protective order is DISMISSED as moot.

FACTS

On January 21, 1994, Plaintiff Adrianne Rounds was traveling from her home near Falconer, New York to her place of employment, Warren General Hospital, Warren, Pennsylvania. Plaintiff, driving a 1984 Chevrolet pickup truck, was traveling in a southerly direction on U.S. Route 62.

As Plaintiff approached the intersection of U.S. Route 62 and Jackson Run Road near the Town of Conewango in Pennsylvania, the traffic signal turned red. Plaintiff's vehicle stopped at the intersection, and was immediately struck in the rear by a tractor-trailer driven by Defendant Robert Rea. According to Defendants, after the accident, Plaintiff, a nurse, proceeded to work at the Warren hospital, while Plaintiff states that she went to the hospital emergency room for treatment, and became unable to work as a result of the collision.

At the time of the incident, Rea was employed by Defendant Musial Leasing, Inc. Musial Leasing, which is in the business of leasing trucks, had leased the tractor-trailer involved in the accident to Defendant Rush Trucking. Rea was driving the tractor-trailer on behalf of Musial Leasing. A principal of Musial Leasing, Andy Musial, is a shareholder in Defendant Grand River Transportation.

According to Plaintiff, she first observed Rea's truck while driving in New York prior to the collision. However, Rea contends that he had not been driving in New York that day, and only had been driving in Pennsylvania. Plaintiff also asserts that Rush Trucking does regular business in New York through its business with the General Motors Tonawanda Engine Plant in Tonawanda, New York, and that Rush Trucking also has designated an agent for service of process in New York. No contacts with New York have been alleged for either Musial Leasing or Grand River Transportation.

DISCUSSION

Summary judgment will be granted pursuant to Fed.R.Civ.P. 56 when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The party moving for summary judgment bears the burden of establishing the nonexistence of a genuine issue of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party's favor may be drawn, the moving party cannot obtain summary judgment. Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985).

The function of a district court in considering a summary judgment motion is not to resolve disputed issues of fact, but to determine whether there is a genuine issue to be tried. Rattner, supra, at 209. In assessing the record, including any affidavits, exhibits and other submissions, the court is required to resolve all ambiguities and to draw all factual inferences in favor of the nonmoving party. Anderson, supra, at 255, 106 S.Ct. at 2513-14; Rattner, supra, at 209.

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, supra, at 247-48, 106 S.Ct. at 2510. See also Lipton v. The Nature Company, 71 F.3d 464, 469 (2d Cir.1995). While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), a party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). The non-moving party may defeat the summary judgment motion by producing sufficient specific evidence to establish that there is a genuine issue of material fact for trial. Celotex, supra, at 322-23, 106 S.Ct. at 2552-53. "Mere conclusory allegations or denials" in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. Lipton, supra, at 469.

In this case, Defendants assert that the action should be dismissed against them based on a lack of personal jurisdiction. In response, Plaintiff seeks to amend the complaint to raise a jurisdictional basis. Additionally, Plaintiff has submitted affidavits to show that Rush Trucking does business on a continuous basis in New York, and that Robert Rea was driving in New York on the day of the accident.

In diversity jurisdiction, the law of the state in which the district court sits governs personal jurisdiction over a nonresident defendant. PC Com, Inc. v. Proteon, Inc., 906 F.Supp. 894, 904 (S.D.N.Y.1995). Therefore, in this action, New York law will determine whether personal jurisdiction exists over Defendants.

The burden of establishing jurisdiction is on the plaintiff. PC Com, Inc., supra, at 904. However, the plaintiff must make merely a prima facie showing that jurisdiction exists, despite contrary allegations by the moving party. A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79 (2d Cir.1993); Ball v. Metallurgie Hoboken-Overpelt, 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). Such a showing will not prevent the defendants from challenging the jurisdictional facts in a subsequent motion or at trial, and the plaintiff must then prove the facts supporting jurisdiction by a preponderance of the evidence. Visual Sciences, Inc. v. Integrated Communications Inc., 660 F.2d 56, 58 (2d Cir.1981).

Plaintiff asserts that personal jurisdiction in this case may be predicated under §§ 301 and 302 of the New York Civil Practice Laws and Rules. However, the court finds that, in this case, as to Rush Trucking only, the Motor Carrier Act ("the Act"), 49 U.S.C. § 10330(b), is applicable to the jurisdictional issue, and that Rush Trucking's designation of an agent in New York to receive process in compliance with the Act creates personal jurisdiction in this state.

1. The Motor Carrier Act

The Motor Carrier Act of 1935 was passed by Congress in order to regulate motor carriers which participate in interstate commerce. Under this statute, carriers traveling in interstate commerce were required to establish an agent in each state in which the motor carrier operated for the purpose of receiving service of process. 49 U.S.C. § 321(c). This section was recodified in 1978 and provides as follows:

A motor carrier or broker providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title, including a...