Molke v. Tanner et al

First MOTION to Dismiss for Lack of Jurisdiction

D.N.J.February 24, 2017

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY RICHARD H. MOLKE, JR., Plaintiff, v. KURT TANNER, d/b/a KURT TANNER MOTORCARS, and CLASSIC SHOWCASE, INC., Defendants. : : : : : : : : : : : : : Civil Action No. 2:16-cv-09034-ES-MAH Return Date: March 20, 2017 DEFENDANT CLASSIC SHOWCASE, INC.’S NOTICE OF MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF PERSONAL JURISDICTION PURSUANT TO FED. R. CIV. P. 12(b)(2) OR, ALTERNATIVELY, TO TRANSFER VENUE PURSUANT TO FED. R. CIV. P. 12(b)(3) PLEASE TAKE NOTICE that on March 20, 2017, or such other date and time as determined by the Court, Defendant Classic Showcase, Inc. (“Classic”), through its attorneys at McCarter & English, LLP, will move before the Honorable Esther Salas, U.S.D.J., United States District Court for the District of New Jersey, Martin Luther King, Jr. Building and U.S. Courthouse, 50 Walnut Street, Newark, New Jersey 07101, for an entry of an Order dismissing Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(2) with prejudice, or alternatively, to transfer venue pursuant to Fed. R. Civ. P. 12(b)(3). PLEASE TAKE FURTHER NOTICE, that in support of this motion, Classic will rely upon the letter brief submitted herewith, and the Motion and supporting papers submitted by Co- Defendant Kurt Tanner, d/b/a Kurt Tanner Motorcars. A proposed Order is also submitted herewith. Case 2:16-cv-09034-ES-MAH Document 15 Filed 02/24/17 Page 1 of 3 PageID: 349 2 McCARTER & ENGLISH, LLP Counsel for Defendant Classic Showcase, Inc. Dated: February 24, 2017 By: s/Gregory J. Hindy Gregory J. Hindy Gregory J. Hindy Guillermo C. Artiles Four Gateway Center 100 Mulberry Street Newark, New Jersey 07102 ghindy@mccarter.com (973) 639-6954 Case 2:16-cv-09034-ES-MAH Document 15 Filed 02/24/17 Page 2 of 3 PageID: 350 3 CERTIFICATE OF SERVICE I, Guillermo C. Artiles, Esq., hereby certify that on February 24, 2017, I caused to be served on behalf of DEFENDANT CLASSIC SHOWCASE, INC.’S NOTICE OF MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF PERSONAL JURISDICTION PURSUANT TO FED. R. CIV. P. 12(b)(2) OR, ALTERNATIVELY, TO TRANSFER VENUE PURSUANT TO FED. R. CIV. P. 12(b)(3) and this Certificate of Service via electronic mail and electronic court filing system upon counsel for Plaintiff Richard H. Molke, Jr. Dated: February 24, 2017 s/Guillermo C. Artiles Guillermo C. Artiles Case 2:16-cv-09034-ES-MAH Document 15 Filed 02/24/17 Page 3 of 3 PageID: 351 Gregory J. Hindy Partner T: 973-639-6954 F: 973-297-3883 ghindy@mccarter.com McCarter & English, LLP Four Gateway Center 100 Mulberry Street Newark, NJ 07102-4056 T. 973.622.4444 F. 973.624.7070 www.mccarter.com BOSTON HARTFORD STAMFORD NEW YORK NEWARK EAST BRUNSWICK PHILADELPHIA WILMINGTON WASHINGTON, DC February 24, 2017 VIA ECF AND FEDERAL EXPRESS Honorable Esther Salas, U.S.D.J. U.S. District Court for the District of New Jersey Martin Luther King Building and U.S. Courthouse 50 Walnut Street Newark, New Jersey 07101 Re: Molke vs. Tanner, et al., Civil Action No. 16-9034 (ES) (MAH) Dear Judge Salas: We represent Defendant Classic Showcase, Inc. (“Classic”) in the above- captioned action. Please accept this letter in lieu of a more formal brief in support of Classic’s Motion to Dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(2). Classic joins in the substantive arguments advanced by Co-Defendant Kurt Tanner d/b/a Kurt Tanner Motorcars (“Tanner”), and adds additional facts below regarding the Complaint’s lack of personal jurisdiction over Classic. In support of this Motion, Classic relies primarily on case law cited by Tanner in its Motion to Dismiss. Simply put, the same reasons that mandate dismissal of this matter as to Tanner are equally—if not more applicable—to Classic. Classic has no deliberate or purposeful ties to the State of New Jersey, as required by law. Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007). The only relevant tie to New Jersey, in this entire controversy, is apparently Plaintiff’s residence and the current location of the vehicle at issue. And, as provided below, these two facts alone, are insufficient to subject Classic to personal jurisdiction in New Jersey under the most basic principles of personal jurisdiction. Classic, a small classic car restoration business in Oceanside, California, was contacted by Plaintiff after Plaintiff was referred to Classic by another California vendor previously used by Plaintiff. At no time did Classic solicit business from Plaintiff. Upon being engaged in California by Plaintiff, Classic completed a pre- purchase inspection of the subject vehicle in California, at Classic’s place of business. After Plaintiff purchased the vehicle, Plaintiff engaged Classic to do some restoration work on the vehicle. Again, such work took place solely at Classic’s California shop. Classic never visited Plaintiff in New Jersey. In fact, the only instances where Classic and Plaintiff met were in Oceanside, California at Classic’s shop or in Arizona, at a classic car concours d’elegance, where Plaintiff displayed the vehicle at issue in this suit. Case 2:16-cv-09034-ES-MAH Document 15-1 Filed 02/24/17 Page 1 of 2 PageID: 352 Hon. Esther Salas, U.S.D.J. February 24, 2017 Page 2 Without delving into the merits of Plaintiff’s allegations, Plaintiff eventually decided to sell the vehicle. Plaintiff contracted with Classic to sell the vehicle in California, at Classic’s shop. Soon thereafter, and before the vehicle could be sold, Plaintiff apparently changed his mind and decided to keep the vehicle. Plaintiff arranged to have the vehicle shipped from Classic’s California shop to Plaintiff in New Jersey. To do so, Plaintiff hired an automobile transport company, Passport Transport. Passport Transport picked the vehicle up at Classic’s California shop and transported it to Plaintiff’s home in New Jersey. The vehicle, as we understand, is currently in New Jersey. But the vehicle’s presence, and Plaintiff’s residence in New Jersey, are insufficient grounds to haul Classic into New Jersey. After all, the “unilateral activity of those who claim some relationship with a nonresident defendant is insufficient.” Smal & Partners UK Ltd. v. Podhurst Orseck P.A., No. CIV. 11-5260 JLL-MAH, 2012 WL 1108560, at *4 (D.N.J. Mar. 2, 2012), report and recommendation adopted, No. CIV.A. 11-05260 JLL, 2012 WL 1107727 (D.N.J. Apr. 2, 2012). Although Plaintiff and Classic communicated by telephone and electronic mail, such minimum contacts “do not trigger personal jurisdiction unless they show purposeful availment.” Id. citing Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 455 (3d Cir. 2003). Additionally, “contacts with a state's citizens that take place outside the state are not purposeful contacts with the state itself.” Id. citing O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007). Here, Classic’s minimal contacts with Plaintiff by telephone and electronic mail while Classic sat in California and Plaintiff presumably was in New Jersey, do not rise to the level of purposeful availment to fairly subject Classic to personal jurisdiction in New Jersey. Because Plaintiff can do no more than point to his residence and the vehicle’s current location as basis for personal jurisdiction over Classic, we respectfully submit that the Complaint be dismissed with prejudice as to Classic for lack of personal jurisdiction. We thank Your Honor and the Court for considering our submission. Respectfully submitted, s/Gregory J. Hindy Gregory J. Hindy cc: Honorable Michael A. Hammer, U.S.M.J. (via ECF) Counsel of Record (via ECF and Email) Case 2:16-cv-09034-ES-MAH Document 15-1 Filed 02/24/17 Page 2 of 2 PageID: 353 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY RICHARD H. MOLKE, JR., Plaintiff, v. KURT TANNER, d/b/a KURT TANNER MOTORCARS, and CLASSIC SHOWCASE, INC., Defendants. : : : : : : : : : : : : : Civil Action No. 2:16-cv-09034-ES-MAH Return Date: March 20, 2017 [PROPOSED] ORDER THIS MATTER having been opened to the Court upon the motion of Defendant Classic Showcase, Inc. (“Classic”), through its attorneys at McCarter & English, LLP, for entry of an Order dismissing Plaintiff’s Complaint in its entirety with prejudice pursuant to Fed. R. Civ. P. 12(b)(2), or alternatively, to transfer venue pursuant to Fed. R. Civ. P. 12(b)(3). and the Court having considered the submissions of the parties; and good cause having been shown; IT IS ON THIS _____ day of _________________, 2017 ORDERED THAT Defendant Classic Showcase, Inc.’s Motion to Dismiss Plaintiff’s Complaint as to Classic is GRANTED; IT IS FURTHER ORDERED that Plaintiff’s Complaint is dismissed in its entirety with prejudice as to Classic; or ALTERNATIVELY, the case is transferred pursuant to Fed. R. Civ. P. 12(b)(3). ___________________________________ HONORABLE ESTHER SALAS, U.S.D.J. Case 2:16-cv-09034-ES-MAH Document 15-2 Filed 02/24/17 Page 1 of 1 PageID: 354