Snavely v. Nordskog Elec. Vehicles "Marketeer"

• Decision Date: 06 November 1995
• Docket Number: Civil Action No. 3:93-CV-5WS.
• Citation: 947 F.Supp. 999
• Parties: Hamilton Dean SNAVELY, Plaintiff, v. NORDSKOG ELECTRIC VEHICLES "MARKETEER", a Subsidiary of Nordskog Industries, Inc., Nordskog Industries, Inc.; ABC Company and XYZ Company, Defendants, Pellerin Milnor Corporation and Travelers Insurance Company, Intervenors.
• Court: U.S. District Court — Southern District of Mississippi

947 F.Supp. 999

Hamilton Dean SNAVELY, Plaintiff, v. NORDSKOG ELECTRIC VEHICLES "MARKETEER", a Subsidiary of Nordskog Industries, Inc., Nordskog Industries, Inc.; ABC Company and XYZ Company, Defendants Pellerin Milnor Corporation and Travelers Insurance Company, Intervenors.

Civil Action No. 3:93-CV-5WS.

United States District Court, S.D. Mississippi, Jackson Division.

November 6, 1995.

Memorandum Denying Reconsideration September 25, 1996.

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John Hunter Stevens, T. Mark Sledge, Sledge & Stevens, Jackson, MS, for Hamilton Dean Snavely.

Dominic J. Ovella, Brian Thomas Carr, J. Price McNamara, Frederic Theodore Le Clercq, Hailey, McNamara, Hall, Larmann & Papale, Metairie, LA, for Pellerin Milnor Corporation and Travelers Insurance Company.

ORDER

WINGATE, District Judge.

Before the court is the motion of the defendants, Nordskog Industries, Inc., (hereinafter "NII") and Nordskog Electric Vehicles (hereinafter "NEV"), a subsidiary of Nordskog Industries, Inc., asking this court to dismiss this lawsuit against them for want of personal jurisdiction and improper venue pursuant to Rule 12(b)(2) & (3) of the Federal Rules of Civil Procedure.¹ In his complaint, plaintiff alleges that the defendants are liable to him because of their negligence in manufacturing, marketing and placing into commerce a three-wheel motorized vehicle identified as a Model Number 323 Nordskog electric vehicle, which, contends plaintiff, was defective and the cause of his accident and subsequent severe injuries. According to the affidavits submitted by the defendants, they have never had any contacts whatsoever with the State of Mississippi which would subject them to this court's jurisdiction. Citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-77, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985), the defendants assert that requiring them to litigate this personal injury lawsuit in Mississippi before this court would offend traditional notions of fair play and substantial justice.

Plaintiff and the intervenors respond that by failing to respond to various requests for admissions, the defendants have admitted personal jurisdiction over them in this forum; that denial of personal jurisdiction over the defendants in this forum would substantially prejudice the plaintiff's cause of action due to the applicable statute of limitations; that the defendants rely upon authority which has been overruled; that defendants placed an instrumentality (the three-wheel vehicle) into the stream of commerce which they knew would find its way into this forum state and which caused the plaintiff's injury; and that subjecting defendants to this court's jurisdiction for litigation of this matter would not offend due process or principles of fairness.

Unpersuaded by the argument of the plaintiff and the intervenors, this court grants the defendants' motion for the reasons which follow.

I. PARTIES AND JURISDICTION

Plaintiff Hamilton Snavely is an adult resident of Brookhaven, Mississippi. Defendants are California corporations. The intervenors are Pellerin Milnor Corporation, the plaintiff's former employer in Metairie, Louisiana, and Travelers Insurance Company, the workers compensation insurer for Pellerin Milnor Corporation. Their intervention was permitted by Order of the United States Magistrate Judge entered on March 29, 1993. This court has subject matter jurisdiction over this dispute predicated on Title 28 U.S.C. § 1332,² diversity of citizenship and amount in controversy in excess of $50,000.00.

II. PERTINENT FACTS

The plaintiff, Hamilton Dean Snavely, allegedly sustained severe personal injuries on December 8, 1986, while operating a Model 323 Nordskog Electric Vehicle in the ordinary course of his employment with the Pellerin Milnor Corporation in Metairie, Louisiana. As earlier stated, the plaintiff is an adult resident citizen of Brookhaven, Mississippi. On December 4, 1992, the plaintiff filed suit against NEV, NII and unknown potential defendants in the Circuit Court for the First Judicial District of Hinds County, Mississippi. The plaintiff's complaint accuses defendants of negligently designing the Nordskog Electric Vehicle; failing to warn the public of the vehicle's dangerous propensities; negligently marketing and selling the product in an inherently dangerous condition; and failing to equip the product with adequate safety devices. According to the plaintiff, this action was filed within the applicable Mississippi statute of limitations governing the plaintiff's claims.³ The plaintiff further alleges that he effected proper service of process upon the defendants pursuant to the Mississippi long-arm statute, Miss.Code Ann. § 13-3-57⁴ (Supp.1993), effective July 1, 1991.

On January 6, 1993, the defendants removed the plaintiff's action to this court pursuant to Title 28 U.S.C. § 1441.⁵ On January 29, 1993, while reserving objections to this court's jurisdiction and venue over them, defendants sought additional time in which to respond to plaintiff's complaint and to answer discovery requests (including requests for admissions) which the plaintiff had filed contemporaneously with his complaint in state court. This court granted defendants until February 28, 1993, to answer and to respond to the discovery filed in state court, but the defendants opted not to respond. Instead, on March 2, 1993, NEV and NII moved to dismiss the plaintiff's complaint, claiming that this court lacks personal jurisdiction over these defendants.

On June 23, 1993, this court denied the defendants' motion, finding that defendants had failed to substantiate their position with any valid affidavits. Although defendants had submitted what purported to be affidavits, the papers were not properly executed. So, finding that defendants had failed to support their argument by competent proof, this court denied defendants' motion, but permitted them to re-urge the motion in proper form.

Thereafter, on July 16, 1993, defendants re-submitted their motion, this time with properly executed affidavits. Defendants submitted two affidavits in support of their motion to dismiss. The affidavit of Scott Breckley, NEV's general manager, states that NEV's manufacturing facilities are located in Redlands, California; that NEV's corporate offices are located in Van Nuys, California; that NEV maintains no offices or facilities outside the State of California; that NEV sells its electric vehicles mostly to independent distributors and rarely to the public; that NEV has no record showing that it ever sold an electric vehicle to any distributor for delivery in Mississippi; that NEV has no record of ever having entered into an independent distributorship agreement with anyone in Mississippi; and that NEV has no record of having sold any electric vehicles directly to the public in Mississippi. Furthermore, Breckley's affidavit asserts that NEV is not licensed to do business in Mississippi; has never conducted business in Mississippi; has never maintained offices in Mississippi; and has no employees or representatives located in Mississippi.

The second affidavit submitted by general counsel for NEV and NII, Bettie L. Pearson, asserts that NII is a California corporation with its principal place of business in Van Nuys, California. According to counsel's affidavit, NEV is a wholly owned subsidiary of NII licensed to business as a California corporation, with corporate offices in Van Nuys and manufacturing facilities in Redlands, California. There is no record, says counsel, that NII or NEV has ever conducted business in Mississippi or has ever entered into any contract with anyone in Mississippi.

Meanwhile, the court entered a scheduling order and the parties commenced discovery. The plaintiff was particularly desirous of obtaining discovery bearing on defendants' motion. Thus, on January 14, 1994, this court entered an order permitting the plaintiff forty-five days in order to conduct limited discovery on the issue of whether this court had in personam jurisdiction over the defendants.

Upon completion of this discovery, the plaintiff filed a supplemental response to the defendants' motion to dismiss for want of personal jurisdiction and improper venue. According to the plaintiff's supplemental response, by and through his own investigatory efforts, he had found evidence contradicting the affidavits submitted by the defendants. According to the plaintiff's supplemental response, the defendants' products are to be found at the Jackson International Airport located in Rankin County, Mississippi, and various industrial plants in Mississippi. Additionally, says plaintiff, there is a distributor of the defendants' products, one H.G. Mouat Company located at 1991 Interstate Drive, Richland, Mississippi; and that H.G. Mouat Company has a facility located in Irondale, Alabama, which sells the defendants' products to Mississippi customers and services those products.

Because it appeared to this court that the plaintiff had presented several findings directly contrary to the defendants' assertions in their affidavits, this court ordered the defendants to submit an additional response addressing the plaintiff's assertions contained in his supplemental response to the defendants' motion to dismiss. The defendants responded as directed, denying that the defendants ever entered into a distributorship agreement with H.G. Mouat Company in Richland, Mississippi, or with any other person in Mississippi. The defendants also denied that any of its products were shipped to H.G. Mouat Company in Irondale, Alabama, for shipment to facilities in Mississippi. The defendants further denied that any of their products were located in Mississippi.

Accompanying the defendants' response were certain invoices which, say the defendants, reflected all sales to H.G. Mouat in Irondale, Alabama, between March 30, 1989, and May 1, 1994. Defendants say that...