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Overland Ventures, LLC v. Giant Tyres Usa, LLC

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

September 16, 2014

OVERLAND VENTURES, LLC and PAUL FERRUZZA, Individually, and d/b/a OVERLAND VENTURES, LLC, Plaintiffs,
v.
GIANT TYRES USA, LLC, MIDWEST COAL, LLC, A & B RETREADING, LLC, ADKINS TIRE, LLC, JASON ELBERT ADKINS, INDIVIDUALLY AND D/B/A LAURITA MINING, GIANT TYRES USA, LLC, MIDWEST MINING, MIDWEST COAL, LLC, A & B RETREADING, LLC, ADKINS TIRE, LLC AND JOHN DOES 1-10, Defendants.

MEMORANDUM OPINION AND ORDER

KEITH STARRETT, District Judge.

This matter is before the Court on the Defendants' Motion to Dismiss [107]. Having considered the submissions of the parties, the record, and the applicable law, the Court finds that the motion is well taken and this action will be dismissed without prejudice for lack of personal jurisdiction.

I. BACKGROUND

This proceeding has its origins in a separate action filed by Pro-Logistics Forwarding (Pty) Ltd. ("Pro-Logistics") against Robison Tire Co., Inc. ("Robison"). On April 25, 2013, Pro-Logistics filed suit against Robison in this Court, asserting that Robison breached an agreement for the sale of twelve (12) industrial mining tires to Pro-Logistics in exchange for $987, 460.00. ( See Compl. [1].) Subject matter jurisdiction was grounded on diversity of citizenship under Title 28 U.S.C. § 1332. Pro-Logistics' Complaint states that the company is a citizen of South Africa and that Robison is a citizen of Mississippi for purposes of diversity jurisdiction.

On June 5, 2013, Robison filed its Third-Party Complaint [10] against Overland Ventures, LLC ("Overland") and Paul Ferruzza ("Ferruzza"), Individually and d/b/a Overland. The Third-Party Complaint indicates that Robison contracted with Ferruzza and Overland in order to fill Pro-Logistics' tire order. It is also alleged that Ferruzza and Overland breached their agreement to supply Robison with the twelve mining tires in exchange for $905, 800.00.

On January 10, 2014, Overland and Ferruzza filed their own Third Party Complaint [80] against Giant Tyres USA, LLC, Midwest Coal, LLC, A & B Retreading, LLC, Adkins Tires, LLC, and Jason Elbert Adkins, Individually and d/b/a Laurita Mining, Giant Tyres USA, LLC, Midwest Mining, Midwest Coal, LLC, A & B Retreading, LLC, and Adkins Tire, LLC (hereinafter collectively referred to as "Adkins"). Overland asserts that it contracted with Adkins to purchase twelve mining tires in order to supply the tires to Robison. Overland also alleges that Adkins breached the contract by failing to deliver the tires despite being paid the contract price of $780, 000.00. Overland and Ferruzza's Third Party Complaint [80] asserts the following claims for relief: breach of contract, fraud, money had and received, negligent misrepresentation, and conversion. Subject matter jurisdiction is also predicated on diversity of citizenship. The Third Party Complaint posits that Ferruzza is a citizen of Colorado and Overland is a Colorado limited liability company, while Jason Elbert Adkins and each entity Defendant may be served with process in Ohio.

On March 5, 2014, the United States Magistrate Judge Michael T. Parker severed Ferruzza and Overland's third party claims against Adkins into this separate action. ( See Order [111].) Judge Parker found that the claims were permitted under Federal Rule of Civil Procedure 14. However, Judge Parker also found that leaving Adkins in the proceeding would unnecessarily delay the resolution of the previously filed claims pending between Pro-Logistics, Robison, Ferruzza, and Overland.

Adkins presently seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(2) (lack of personal jurisdiction), (b)(3) (improper venue), and (b)(6) (failure to state a claim). In the alternative, Adkins requests an order compelling arbitration pursuant to 9 U.S.C. § 4. Adkins has submitted an affidavit in support of the Motion to Dismiss [107], stating, inter alia, that neither he nor any of his companies have ever done business in Mississippi; that he has never been to Mississippi; that his companies have no offices, employees, contacts, or any other connections with Mississippi; and, that neither he nor any of his companies have ever contracted, done business, or committed a tort in Mississippi. (Adkins Aff. [107-1] at ¶ 7.) The Court finds that the issue of personal jurisdiction is dispositive. Therefore, the other grounds presented in the Motion to Dismiss need not be addressed.

II. DISCUSSION

Two requirements must be satisfied in order for a district court sitting in diversity to assert personal jurisdiction over a nonresident. See Pervasive Software, Inc. v. Lexware GmbH & Co. KG, 688 F.3d 214, 220 (5th Cir. 2012). "First, the forum state's long-arm statute must confer personal jurisdiction. Second, the exercise of jurisdiction must not exceed the boundaries of the Due Process Clause of the Fourteenth Amendment." Id. (citing Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999)). The plaintiff must establish personal jurisdiction, but need only present a prima facie case to meet his burden. See Luv n' care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006) (citing Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir. 1982)). The Court may decide the jurisdictional issue by receiving affidavits, depositions, interrogatories, and other forms of discovery. See Adams v. Unione Mediterranea Di Sicurta, 220 F.3d 659, 667 (5th Cir. 2000) (citing Jobe v. ATR Mktg., Inc., 87 F.3d 751, 753 (5th Cir. 1996)). The uncontroverted allegations of the complaint are to be taken as true, and factual disputes evidenced by the parties' affidavits are to be resolved in the plaintiff's favor. See Freudensprung v. Offshore Technical Servs., Inc., 379 F.3d 327, 343 (5th Cir. 2004) (citation omitted).

Mississippi's long-arm statute states in pertinent part:

Any nonresident... who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state.

Miss. Code Ann. § 13-3-57. This statute consists of three prongs: (i) the contract prong; (ii) the tort prong; and (iii) the doing-business prong. See Walker v. World Ins. Co., 289 F.Supp.2d 786, 788 (S.D.Miss. 2003). Generally, a nonresident plaintiff may not invoke the contract or doing-business prong of the statute.[1] An exception exists if a nonresident corporation is qualified to do business in Mississippi by the Secretary of State. See Dale Carter, Inc., 2007 WL 2454058, at *2 (citations omitted). The Complaint points to Colorado as Ferruzza and Overland's state of residence. ( See Third Party Complaint [80] at ¶¶ 1-2.) Furthermore, no claim or evidence of Overland being qualified to do business in Mississippi is before the Court. Therefore, only the tort prong of section 13-3-57 is at issue in this dispute.

Mississippi's long-arm statute is satisfied if the tortious conduct or injury occurs in Mississippi. See Walker, 289 F.Supp.2d at 789 ("[T]he Court must analyze whether the alleged tort, or any portion of the tort, was committed in Mississippi."); Yatham v. Young, 912 So.2d 467, 470 (¶ 7) (Miss. 2005) ("[A] tort is committed in Mississippi when the injury results in this State."). The Fifth Circuit and Mississippi Supreme Court have been careful to distinguish between actual tort injury and economic consequences resulting from the injury for purposes of establishing personal jurisdiction. See Dunn v. Yager, 58 So.3d 1171, 1184 (¶ 27) (Miss. 2011) ("[C]onsequeces stemming from the actual tort injury do not confer personal jurisdiction at the site or sites where such consequences happen to occur.") (quoting Allred v. Moore & Peterson, 117 F.3d 278, 282 (5th Cir. 1997)). "Mississippi does not permit damages to serve as a proxy for injury in the personal jurisdiction calculus. The ...


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