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Schall v. Suzuki Motor of America, Inc.

United States District Court, W.D. Kentucky, Owensboro Division

May 11, 2017

DEREK SCHALL PLAINTIFF
v.
SUZUKI MOTOR OF AMERICA, INC., SUZUKI MOTOR CORPORATION, and NISSIN KOGYO CO., LTD. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., Chief Judge.

         This matter is before the Court on Defendant Nissin Kogyo Co., Ltd.'s motion to dismiss for lack of personal jurisdiction. (DN 110.) Fully briefed, this matter is ripe for decision. For the following reasons, the motion is DENIED.

         I. Background

         Plaintiff Derek Schall was injured in a motorcycle accident on July 19, 2013, in Daviess County, Kentucky. (Pl.'s Am. Compl. [DN 5] ¶ 39.) He alleges that the accident was caused by defects in the front brake master cylinder on the motorcycle, a 2007 Suzuki GSX-R600. (Id.) He has brought an action against Suzuki Motor Corporation (“SMC”), the manufacturer of the motorcycle; Suzuki Motor of America, Inc. (“SMA”), the importer of the motorcycle; and Nissin Kogyo Co., Ltd. (“Nissin”), the manufacturer of the front brake master cylinder, alleging strict products liability and negligence. (Id. at ¶ 41-52.)

         Schall filed his amended complaint on July 18, 2014. (Id.) The summons for Nissin was returned executed on August 13, 2014, after Schall directed the Kentucky Secretary of State to send process to Nissin at its place of business in Japan via registered mail. (Summons [DN 13] at 1-3.) Nissin subsequently filed a motion to dismiss due to insufficient service of process and a lack of personal jurisdiction. (DN 17.) However, Schall subsequently served Nissin via an international service processor. (See Order Appointing International Service Processor [DN 9] at 1.) After receiving process via the international service processor, Nissin filed an answer to the complaint on November 7, 2014, asserting a lack of personal jurisdiction as an affirmative defense. (Answer [DN 29] at 1.) However, it withdrew its motion to dismiss for insufficient service and lack of personal jurisdiction on January 21, 2015. (DN 41.)

         Since that time, the parties have been engaged in discovery. Key events include the filing of a joint Rule 26(f) planning meeting report on April 29, 2015 (DN 49); the entry of a stipulated protective order on August 8, 2015 (DN 54); telephonic court proceedings on October 23, 2015, and January 29, 2016 (DN 61, 65); and the entry of an order amending the protective order on November 8, 2016, which was opposed by Nissin. (DN 85, 98). Schall further alleges that Nissin has participated in the litigation through making initial disclosures, responding to discovery requests, attending and participating in depositions, producing a corporate representative for deposition, requesting extensions of time to comply with discovery requests, and issuing subpoenas. (Pl.'s Resp. to Mot. to Dismiss [DN 111] at 4-6.) Nissin filed the present motion seeking dismissal for lack of personal jurisdiction on March 24, 2017. (DN 110.)

         II. Standard of Review

         The party asserting personal jurisdiction has the burden of showing that such jurisdiction exists. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). Personal jurisdiction is “[a]n essential element of the jurisdiction of a district . . . court” and without personal jurisdiction the court is “powerless to proceed to an adjudication.” Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 382 (1937). A federal court applies a two-step inquiry to determine whether it may exercise personal jurisdiction over a non-resident defendant: “(1) whether the law of the state in which the district court sits authorizes jurisdiction, and (2) whether the exercise of jurisdiction comports with the Due Process Clause.” Brunner v. Hampson, 441 F.3d 457, 463 (6th Cir. 2006). The district court's exercise of jurisdiction over an out-of-state defendant must be consistent with both the forum state's long-arm statute and the constitutional requirements of due process. Id. When a district court rules on a Rule 12(b)(2) motion to dismiss without an evidentiary hearing, the plaintiff need only make a “prima facie” case that the court has personal jurisdiction. See, e.g., Conn v. Zakharov, 667 F.3d 705, 711 (6th Cir. 2012).

         III. Discussion

         In its motion to dismiss, Nissin argues that it lacks the necessary contacts with Kentucky to meet the requirements of the Kentucky long-arm statute or to comport with the Due Process Clause. Schall's response does not take issue with this argument; instead, it argues that Nissin has forfeited the defense of lack of personal jurisdiction by failing to timely move the Court for dismissal and participating in the litigation extensively for the past two-and-a-half years. By failing to respond to the merits of Nissin's personal jurisdiction argument, the Court will consider its opposition to the merits of Nissin's argument waived. See Street v. U.S. Corrugated, Inc., 2011 WL 304568, at *8 (W.D. Ky. Jan. 25, 2011). Thus, the Court need only consider whether Nissin forfeited its personal jurisdiction defense.

         The Sixth Circuit has sent mixed signals in recent cases on what constitutes forfeiture of a Rule 12 defense like personal jurisdiction. In Gerber v. Riordan, 649 F.3d 514 (6th Cir. 2011), the court noted that “personal jurisdiction is a due process right that may be waived either explicitly or implicitly . . . [as t]he actions of the defendant may amount to a legal submission to the jurisdiction of the court.” Gerber, 649 F.3d at 518 (citing Days Inn Worldwide, Inc. v. Patel, 445 F.3d 899, 905 (6th Cir. 2006)). The court articulated the following rule governing forfeiture of a Rule 12 defense like personal jurisdiction:

In deciding whether Defendants waived the personal jurisdiction defense, we must determine whether any of Defendants' appearances and filings in the district court constituted legal submission to the jurisdiction of the court. As an initial matter, we note that while the voluntary use of certain district court procedures serve as constructive consent to the personal jurisdiction of the district court, not all do. Only those submissions, appearances and filings that give Plaintiff a reasonable expectation that Defendants will defend the suit on the merits or must cause the court to go to some effort that would be wasted if personal jurisdiction is later found lacking, result in waiver of a personal jurisdiction defense.

Id. at 519 (quotations, citations, and brackets omitted). Subsequently, in King v. Taylor, 694 F.3d 650 (6th Cir. 2012), a case focused on the forfeiture of a deficient service defense rather than personal jurisdiction, the court cited much of the above language. However, it also noted that the decision on whether forfeiture has occurred is to be based on the “defendant's conduct prior to raising the defense, ” and that a court should “consider all of the relevant circumstances.” King, 694 F.3d at 659. This language is inconsistent with Gerber's direction to only look to the defendant's “submissions, appearance and filings, ” as Gerber implies that those three actions are the only relevant events that are to be considered, whereas King seems to take into consideration the defendant's entire course of conduct throughout the litigation.

         The differences between these two standards matter in this case, since, as will be discussed more fully, Nissin has made relatively few submissions, appearances, or filings, but its entire course of conduct throughout the litigation creates a more reasonable expectation that it would defend the suit on the merits.[1] Other district courts have noted that Gerber “discuss[es] . . . other aspects of the litigation [that] would be entirely superfluous” if the court truly intended a limited standard for forfeiture. Mattson v. Troyer, 2016 WL 5338061, at *3 (N.D. Ohio Sep. 23, 2016). Other “cases following Gerber have declined to interpret it so narrowly[, ] and require the consideration of all the relevant circumstances when determining waiver.” Allstate Ins. Co. v. Electrolux Home Products, Inc., 2014 WL 3615382, at *5 n. 4 (N.D. Ohio July 18, ...


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