Opinion
Case No. 8:03CV15.
June 11, 2004
MEMORANDUM AND ORDER
This matter is before the Court on the Motion to Dismiss submitted by Defendant, Doug's Anchor Marine (Filing No. 53). Doug's Anchor Marine submitted a brief in support of its motion (Filing No. 54), and the Plaintiff, Elaine Guffey, Personal Representative of the Estate of Richard L. Guffey, submitted a brief (Filing No. 59) and Index of Evidentiary Materials (Filing No. 60) in opposition. Although the Court did review and consider the materials outside the pleadings presented by the Plaintiff, the Court finds no reason to treat the motion as one for summary judgment and to afford other parties any opportunity to present additional material pursuant to Fed.R.Civ.P. 12(b) and 56, in light of the disposition of the matter.
For the reasons stated below, the Motion to Dismiss will be granted.
FACTS
All factual allegations in the Amended Complaint (Filing No. 47) are accepted as true for purposes of the Court's review of the Motion to Dismiss.
Richard L. Guffey was a resident of Omaha, Nebraska. ( Id. ¶ 5). Doug's Anchor Marine is a "foreign corporation" with its principal place of business in Watertown, South Dakota. ( Id. ¶ 4). On or about May 15, 2001, Guffey purchased a Warrior Boat from Doug's Anchor Marine. ( Id. ¶ 11). The boat was manufactured by Sun Patio, Inc., of Minnesota. ( Id. ¶ 7). On or about June 3, 2001, Guffey died in Minnesota as the result of a boating accident, involving the Warrior Boat. ( Id. ¶¶ 13-15).
On December 5, 2002, the Plaintiff brought an action in the District Court of Douglas County, Nebraska, against Sun Patio, Inc. The action was removed to this Court on January 14, 2003. (Filing No. 1). On December 10, 2003, the Plaintiff filed an Amended Complaint adding Doug's Anchor Marine as a party defendant. (Filing No. 47). The Amended Complaint states claims against Doug's Anchor Marine based on negligence, failure to warn, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose. Doug's Anchor Marine moved to dismiss, alleging that (1) the applicable statute of limitations for wrongful death actions expired prior to the filing of the Amended Complaint, and (2) this Court lacks personal jurisdiction over Doug's Anchor Marine.
DISCUSSION
Statute of Limitations
Doug's Anchor Marine contends that under Nebraska law, actions based on wrongful death must be commenced within two years of the death. Neb. Rev. Stat. § 30-810 (Reissue 1995). The Plaintiff argues that because the death occurred in Minnesota, Minnesota's three-year statute of limitations for wrongful death actions should apply. Minn. Stat. Ann. § 573.02.
In Fed. Deposit Ins. Corp. v. Nordbrock, 102 F.3d 335 (8th Cir. 1996), the court said: "`[A] federal district court sitting in Nebraska must follow Nebraska's conflict of law rules.'" Id. at 337 (quoting Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 858 F.2d 1339, 1342, 8th Cir. 1988)). In Nordbrock, the court recognized that the Nebraska Supreme Court, as a general matter, utilizes the Restatement (Second) of Conflict of Laws (1989) for issues relating to a choice of law. Id. at 338, citing Harper v. Silva, 339 N.W.2d 826, 828 (Neb. 1987); Cockle v. Cockle, 339 N.W.2d 63 (Neb. 1983). Section 6 of the Restatement (Second) of Conflict of Laws directs a court to consider:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum.
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
With respect to the application of statutes of limitations, the Restatement (Second) of Conflict of Laws provides:
"Whether a claim will be maintained against the defense of the statute of limitations is determined under the principles stated in § 6 [supra]. In general, unless the exceptional circumstances of the case make such a result unreasonable:
(1) The forum will apply its own statute of limitations barring the claim.
(2) The forum will apply its own statute of limitations permitting the claim unless
(a) maintenance of the claim would serve no substantial interest of the forum; and
(b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence."
Restatement (Second) of Conflict of Laws § 142 (1989) (cited in Nordbrock, 102 F.3d at 338-39.
The Plaintiff cites to the Nebraska Supreme Court decision of Calvert v. Roberts Dairy Co., 496 N.W.2d 491 (Neb. 1993), for the proposition that substantive rights of parties to an action are governed by the state where the cause of action arose, while procedural matters are dictated by the law of the forum. The Plaintiff argues that this cause of action arose in Minnesota, where Guffey died, and that the application of a statute of limitations is a substantive matter. The Nebraska Supreme Court has held, however, that the application of a statute of limitations is a procedural matter. In Whitten v. Whitten, 548 N.W.2d 338 (Neb. 1996), the court considered a matter involving a car accident that occurred in Colorado. The injured plaintiff sued the driver in Nebraska court, and the trial court applied the Colorado statute of limitations. The Nebraska Supreme Court found that the suit was barred by the Nebraska statute of limitations:
Because application of the statute of limitations is a procedural matter, Nebraska's statute of limitations governed, rather than that of Colorado, the state where the cause of action allegedly rose. An action for an injury to the rights of the plaintiff, not arising on contract, can only be brought within 4 years. . . . The record reflects that the plaintiff brought this negligence action more than 5 years after the date that he alleged the accident occurred. As a result, his lawsuit against the defendant was barred by Nebraska's statute of limitations.Id. at 340.
Although the Plaintiff has not argued any application of Fed.R.Civ.P. 15(c) regarding relation back of amendments to pleadings, the Court has considered the provisions of Rule 15(c), and finds them inapplicable to this case.
Considering the factors set forth in sections 6 and 142 of the Restatement (Second) of Conflict of Laws, and the Nebraska Supreme Court's analysis in Whitten, the Court concludes that the Plaintiff's cause of action against Doug's Anchor Marine is barred by Nebraska's statute of limitations for wrongful death actions.
Personal Jurisdiction
To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff need only make a prima facie showing of personal jurisdiction over the defendant. Digi-Tel Holdings, Inc. v. Proteq Telecomm. (PTE), Ltd., 89 F.3d 519, 522 (8th Cir. 1996); Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558, 561 (8th Cir. 2003). When sitting in diversity, a federal court may exercise personal jurisdiction over a non-resident defendant if (1) the long-arm statute of the forum state, in this case Neb. Rev. Stat. § 25-536 (1995), allows personal jurisdiction over the defendant; and (2) the court's exercise of personal jurisdiction comports with the Due Process Clause of the Fourteenth Amendment. Minnesota Mining Mfg. Co. v. Nippon Carbide Indus. Co., Inc., 63 F.3d 694, 696-97 (8th Cir. 1995). Because the Nebraska long-arm statute has been interpreted to extend to the constitutional limit, the Court must only determine whether its exercise of personal jurisdiction over Doug's Anchor Marine offends due process. Oriental Trading Co., Inc. v. Firetti, 236 F.3d 938, 943 (8th Cir. 2001).
Under the Due Process Clause of the Fourteenth Amendment, the Court may exercise personal jurisdiction over a non-resident defendant if (1) the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws, Hanson v. Denckla, 357 U.S. 235, 253 (1958); and (2) the maintenance of the suit does not offend traditional notions of fair play and substantial justice. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92 (1980). The nonresident defendant's contacts must be more than "random, fortuitous, or attenuated." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). The defendant's contacts with the forum state should be such that the defendant "should reasonably anticipate being haled into court there." World-Wide Volkswagen, 444 U.S. at 297. These minimum contacts must exist either at the time the cause of action arose, the time the suit is filed, or within a reasonable period of time immediately prior to the filing of the lawsuit. Clune v. Alimak AB, 233 F.3d 538, 544 n. 8 (8th Cir. 2000)." Pecoraro, 340 F.3d at 558, 562.
The Eighth Circuit has established a five-factor test that "incorporates the notions of both `minimum contacts' and `fair play and substantial justice.'" Sybaritic, Inc. v. Interport Int'l, Inc., 957 F.2d 522, 524 (8th Cir. 1992). The five factors the Court must consider are: (1) the nature and quality of contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) convenience of the parties. Digi-Tel Holdings, Inc., 89 F.3d at 522. The first three factors are of primary importance, "while the last two factors are secondary." Pecoraro, 340 F.3d at 562.
The third factor has been construed to distinguish between specific jurisdiction and general jurisdiction. Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 819 (8th Cir. 1994). "Specific jurisdiction refers to jurisdiction over causes of action arising from or related to a defendant's actions within the forum state," while "[g]eneral jurisdiction . . . refers to the power of a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose." Sondergard v. Miles, Inc., 985 F.2d 1389, 1392 (8th Cir. 1993).
The Plaintiff alleges that Sun Patio marketed the Warrior Boat to Guffey at boat shows in Omaha, Nebraska, on its website, and with promotional hand-outs. (Amended Complaint ¶ 8). With respect to Doug's Anchor Marine, however, the Amended Complaint contains no allegations from which the Court can infer personal jurisdiction. In the Plaintiff's brief in opposition to the Motion to Dismiss, the Plaintiff alleges that Doug's Anchor Marine "has contacts with Nebraska residents, and sells boats to numerous Nebraskans." (Filing No. 59 at 2.) The Plaintiff does not allege that any such contacts or sales occur within the state of Nebraska, however. The Plaintiff also alleges that Doug's Anchor Marine "receives many contacts from running a boat show in Sioux City, Iowa, which is on the border with Nebraska. As Sioux City is close to Nebraska, many of these contacts are from Nebraska." ( Id.) Again, there is no allegation that Doug's Anchor Marine's contacts with Nebraskans occur in Nebraska. The Plaintiff alleges that Guffey placed his order by phone with Sun Patio, Inc., for the manufacture of the boat in Minnesota, and that Guffey took delivery of the boat in South Dakota, before transporting it to Minnesota for recreational use. ( Id.) While the Plaintiff's brief alleges some telephone communication between Guffey and Doug's Anchor Marine, it is not alleged that Doug's Anchor Marine initiated phone communications with Guffey or that it reached into Nebraska by telephone or mail to solicit business from Guffey or others.
Based on the allegations in the Amended Complaint, and considering the arguments in the Plaintiff's brief in opposition to the Motion to Dismiss, the Court cannot conclude that Doug's Anchor Marine had the requisite minimal contacts with Nebraska necessary to supply this Court with either general or specific personal jurisdiction over Doug's Anchor Marine. If the issue of personal jurisdiction were the only basis for the motion to dismiss, the Court would grant the motion without prejudice. Because the motion is also granted due to the expiration of the applicable statute of limitations, however, the defects in the Amended Complaint with respect to the Plaintiff's causes of action against Doug's Anchor Marine cannot be cured by further amendment.
IT IS ORDERED:
1. The Motion to Dismiss on behalf of Defendant Doug's Anchor Marine (Filing No. 53) is granted.
2. The Amended Complaint (Filing No. 47) shall be dismissed as to Defendant Doug's Anchor Marine.