Taylor v. Sethmar Transp., Civil Action 2:19-cv-00770

• Decision Date: 12 October 2021
• Docket Number: Civil Action 2:19-cv-00770
• Parties: VANESSA H. TAYLOR, Personal Representative of the Estate of Joseph A. Savage, deceased, Plaintiff, v. SETHMAR TRANSPORTATION, INC.; FREIGHT MOVERS, INC.; Z BROTHERS LOGISTICS, LLC; and ALISHER MANSUROV, Defendants.
• Court: U.S. District Court — Southern District of West Virginia

VANESSA H. TAYLOR, Personal Representative of the Estate of Joseph A. Savage, deceased, Plaintiff,
v.
SETHMAR TRANSPORTATION, INC.; FREIGHT MOVERS, INC.; Z BROTHERS LOGISTICS, LLC; and ALISHER MANSUROV, Defendants.

Civil Action No. 2:19-cv-00770

United States District Court, S.D. West Virginia, Charleston

October 12, 2021

MEMORANDUM OPINION AND ORDER

John, T. Copenhaver, Jr., Senior United States District Judge.

Pending is defendant Sethmar Transportation, Inc.'s (“Sethmar”) motion to dismiss the first amended complaint, filed March 25, 2020.

I. Background

Plaintiff Vanessa H. Taylor (“Taylor”) is a South Carolina resident and is the widow of, and personal representative of the estate of, Joseph A. Savage, deceased (“Savage”). First Am. Compl. ¶ 1, ECF No. 50. Sethmar is an Oregon corporation with its principal place of business in Kansas. Id. ¶ 2. Sethmar operates as a “broker” registered with the Federal Motor Carrier Safety Administration (“FMCSA”)

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under USDOT No. 2225596. See id. ¶¶ 2, 11, 66. The FMCSA defines a “broker” as

a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling providing, or arranging for, transportation by motor carrier for compensation

49 U.S.C. § 13102(2).^[1] Sethmar advertises that it “offers both private fleet and common carrier capacity across the Continental United States.” First Am. Compl. ¶ 2; see also Sethmar Mem. Supp. 4 (stating that this representation is taken from “Sethmar's website”).

This action arises out of a November 9, 2017, fatal accident that occurred on Interstate 77 in Kanawha County involving Savage and a tractor trailer driven by defendant Alisher Mansurov (“Mansurov”). See First Am. Compl. ¶¶ 15-17.

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Mansurov, a Pennsylvania resident, was driving northbound^[2] at a high rate of speed in a tractor trailer when he lost control, crashed through the concrete median barrier, and completely blocked the southbound roadway. Id. ¶¶ 6, 15-16. Savage, who was traveling southbound, crashed into the tractor trailer and perished. Id. ¶ 17.

At the time of the incident, Mansurov was transporting freight from Halifax, Virginia, to Elkhart, Indiana. Id. ¶¶ 6, 10, 12. Sethmar had been hired by Sunshine Mills, Inc., who needed the freight transported from its Halifax, Virginia, facility, to arrange for transportation of the freight. Id. ¶¶ 2-3, 10. Sethmar had hired Freight Movers, Inc. (“Freight Movers”), Z Brothers Logistics, LLC (“Z Brothers”), “and/or” Mansurov to transport the freight. Id. ¶ 11. The first amended complaint also alleges that Freight Movers, “and/or” Z Brothers, had hired Mansurov to transport the freight. Id. ¶ 12. According to the first amended complaint, “the only practical

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route between [Halifax, Virginia, and Elkhart, Indiana] is through West Virginia.” Id. ¶ 2 (emphasis in original).

Mansurov allegedly lacked a valid driver's license to operate a tractor trailer. Id. ¶ 13. Mansurov also allegedly “had at least eight moving violations in the five years prior to the collision and lacked the required knowledge set forth in 49 C.F.R. § 383.111, ” which includes

proper procedures for performing basic maneuvers, the effects of speed, the procedures and techniques for controlling the space around the vehicle and basic information on hazard perception and how to make emergency maneuvers, and the ability to “read and speak the English language sufficiently to converse with the general public, [to] understand highway traffic signs and signals[ . . . ], [to] respond to official inquiries, and [to] make entries on reports and records.”

Id. ¶ 35 (alterations added and quoting 49 C.F.R. § 391.11). In addition, Freight Movers allegedly

had a history of safety violations including in the areas of unsafe driving and drivers' hour-of-service, employing drivers with “red flag” violations such as driving with a suspended commercial driver's license, speeding, inattentive driving, failure to obey traffic control device, and phone use, among other things.

Id. ¶ 63. And “Z Brothers' federal motor carrier operating authority had [allegedly] been involuntar[ily] [re]voked over a year prior to the collision.” Id. Generally, Taylor claims that “Freight Movers, Z Brothers and Mansurov each lacked the competence and due care required to transport the” freight. Id. ¶ 65.

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Taylor claims that “Sethmar knew or should have known” of Freight Movers', Z Brothers', and Mansurov's “incompetence and lack of care based on, among other things, industry standards and practices for reasonably careful and prudent freight brokers.” Id. ¶ 66. Taylor also claims that Sethmar maintained an employment or agency relationship with Freight Movers, Z Brothers, and Mansurov, and is therefore vicariously liable for their conduct. Id. ¶ 57. Taylor alleges that Sethmar “had the right or power to control the manner of work performed, the right to discharge, [the right to control] the method of payment and/or [the right to control] the level of skill involved, . . . with respect to Defendants Freight Movers, Z Brothers and/or Mansurov and the transportation of this Load.” Id. ¶ 58.

On October 23, 2019, Taylor filed her complaint in this court, invoking the court's diversity jurisdiction. Compl. ¶ 7, ECF No. 1. On March 3, 2020, the court granted Taylor leave to file the first amended complaint, ECF No. 49, which Taylor filed that same day, ECF No. 50. She brings seven counts against the defendants: negligence and recklessness against Mansurov (Count I); vicarious liability against Z Brothers for the conduct of Mansurov (Count II); negligence and recklessness against Z Brothers (Count III); vicarious liability against

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Freight Movers for the conduct of Z Brothers and Mansurov (Count IV); negligence and recklessness against Freight Movers (Count V); vicarious liability against Sethmar for the conduct of Freight Movers, Z Brothers, and Mansurov (Count VI); and negligence and recklessness against Sethmar in selecting the other defendants to transport the freight (Count VII). First Am. Compl. ¶¶ 21-69.^[3] Taylor seeks, inter alia, compensatory and punitive damages. Id. ad damnum clause.

On December 10, 2019, the West Virginia Secretary of State accepted service of process for the original complaint on Sethmar's behalf as its alleged attorney-in-fact under West Virginia Code § 56-3-33(a). ECF No. 16. On March 16, 2020, Taylor served process for the first amended complaint on a resident of Bruceton Mills, West Virginia, who was allegedly designated to accept service on Sethmar's behalf. ECF No. 56.

On March 25, 2020, Sethmar moved to dismiss the first amended complaint. ECF No. 62. Sethmar argues that (1) the court lacks personal jurisdiction over Sethmar, (2) Taylor failed properly to serve Sethmar, (3) Taylor has failed to state a valid claim against Sethmar, and (4) federal law preempts the

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negligent selection of a contractor claim against Sethmar. Sethmar Mem. Supp. 2, ECF No. 63.

To support its motion, Sethmar submitted the Declaration of Ben Bolan (“Bolan”) and a “Contract Carrier Agreement” between Sethmar and Freight Movers, dated November 8, 2017. See Sethmar Mot. Dismiss Exs. 1-2, ECF Nos. 62-1, -2. Bolan, Sethmar's president, declares that Sethmar is a broker that strictly “arranges, or offers to arrange, the transportation of property by an authorized motor carrier.” Sethmar Mot. Dismiss Ex. 1, Bolan Decl. ¶¶ 2, 4. Bolan further declares that Sethmar generally does no business in, and does not have any contact with, West Virginia. See id. ¶¶ 7-8, 12-13. According to Bolan, Sethmar engaged Freight Movers as an independent contractor and “never contracted with or employed” Z Brothers or Mansurov. Id. ¶¶ 5-6, 9 (citing Sethmar Mot. Dismiss Ex. 2, Contract Carrier Agreement). Bolan also avers that Sethmar “did not propose, suggest, or command a particular route be taken by the freight carrier in its delivery of the freight from Virginia to Indiana . . . or know that it would be routed through West Virginia.” Id. ¶ 14. Last, Bolan identifies Sethmar's registered agents for service of process, none of whom are the West Virginia Secretary of State but one of

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whom appears to be the Bruceton Mills resident upon whom Taylor served the first amended complaint. See id. ¶¶ 10-11.

A “Rate Confirmation Sheet” attached to the Contract Carrier Agreement provides that the carrier is Freight Movers and the driver is an individual named Sergej. Sethmar Mot. Dismiss Ex. 2, Contract Carrier Agreement. Pickup is identified in Halifax, Virginia, and delivery is identified in Elkhart, Indiana. Id. The scheduled pickup time is listed as 10:00 on November 9, 2017, and the scheduled delivery time is listed as between 07:00 and 16:00 on November 10, 2017. Id.

In response, Taylor submitted Google Maps directions from Halifax, Virginia, to Elkhart, Indiana. Taylor Resp. Ex. A, ECF No. 77-1. The directions list three alternate routes, each of which pass through West Virginia and range from 8 hours and 4 minutes to 9 hours and 17 minutes. See id.

On March 11, 2020, the court ordered a “stay [of] all proceedings herein except insofar as they relate to motions to dismiss and jurisdictional issues, including evidentiary matters with respect to personal jurisdiction and service of process.” ECF No. 49.

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II. Motion to Dismiss Standards

A. Rule 12(b)(2) -- Lack of personal jurisdiction

Rule 12(b)(2) permits a court to dismiss a complaint for “lack of personal jurisdiction.” Fed.R.Civ.P. 12(b)(2). When a district court considers a Rule 12(b)(2) motion without an evidentiary hearing, “the party asserting jurisdiction has the burden of establishing a prima facie case of jurisdiction.” Hawkins v. i-TV Digitalis Tavkozlesi zrt., 935...