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Lubin v. Delta Airlines, Inc.

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

July 31, 2015

CAROL LUBIN, Plaintiff,
v.
DELTA AIRLINES, INC.; COMAIR;, BOMBARDIER, INC.; DEFENDANTS B — F; DEFENDANTS G — M; and DEFENDANTS N — T Defendants.

MEMORANDUM OPINION AND ORDER

CARLTON W. REEVES, District Judge.

Before this court is the motion of the defendant Bombardier, Inc. (hereinafter "Bombardier") to dismiss the instant action against it for lack of personal jurisdiction, filed on December 17, 2014. Docket No. 19. In the alternative, the motion calls for the court to dismiss for insufficient process and insufficient service of process. Id. The plaintiff opposes Bombardier's motion, but does so mainly by invoking Rule 56(f) of the Federal Rules of Civil Procedure. Docket No. 25. Defendant has responded to plaintiff's objections, Docket No. 31, and has fortified its motion with a supplement, Docket No. 37. In addition, on July 1, 2015, a status conference was held, in which the court heard arguments on defendant's motion. After careful consideration of the arguments and the applicable authorities, the court hereby grants defendant's motion to dismiss for lack of personal jurisdiction.

BACKGROUND

This is an action brought pursuant to various state law claims of negligence, strict liability in tort, and breach of express and implied warranties, among other claims. See Am. Compl., Docket No. 16. Bombardier is a Canadian Corporation with its principal place of business in Montreal, Canada. See Aff. of Marie-Andree Charland, Docket No. 19-1 (hereinafter, "Charland Aff."). Plaintiff Carol Lubin is a resident of Mississippi.

On July 20, 2012, Lubin was a passenger on Delta Flight DL 3222, "which was operated on a 2003 Bombardier, Inc. model CL-600-2C10-CRJ700." Lubin boarded the plane in Memphis, Tennessee en route to Boston, Massachusetts. Docket No. 16. According to Lubin, as she was walking down the stairs of the aircraft, its bottom steps suddenly began to shake, which caused her to fall and suffer her injuries. Id. She broker her leg and suffered other injuries as a result. See Am. Compl. at 4.

On July 17, 2014, Lubin filed the current suit against Delta, Comair, Pinnacle Airlines and several unidentified defendants in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Lubin asserted a variety of claims against these defendants, including negligence, strict liability in tort, and breach of express and implied warranties, among others. On August 19, 2014, the defendants timely removed the action to this court.[1] The Case Management Conference was held, after which Lubin filed an Amended Complaint adding Bombardier as a defendant. Bombardier now moves to dismiss this action for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2), or in the alternative, for insufficient process and insufficient service of process pursuant to 12(b)(4) and 12(b)(5), respectively.[2]

PERSONAL JURISDICTION

When a nonresident defendant presents a motion to dismiss for lack of personal jurisdiction, it is the plaintiff's burden to establish that in personam jurisdiction exists. Wilson v. Belin, 20 F.3d 644, 648 (5th Cir. 1994), cert. denied, 513 U.S. 930 (1994). "The court may determine the jurisdictional issue by receiving affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery." Allred v. Moore & Peterson, 117 F.3d 278, 281 (5th Cir. 1997). If the motion is decided without an evidentiary hearing, [3] the plaintiff only needs to make a prima facie showing that jurisdiction exists and is not required to establish jurisdiction by a preponderance of the evidence. Insta-Mix, 438 F.3d at 469; Kwik-Kopy Corp. v. Byers, 37 F.Appx. 90, at *3 (5th Cir. 2002) (unpublished table opinion). In such case, the "court must resolve all undisputed facts submitted by the plaintiff, as well as all facts contested in the affidavits, in favor of jurisdiction." Insta-Mix, 438 F.3d at 469.

A federal court sitting in diversity may exercise personal jurisdiction only to the extent allowed in state court under applicable state law. Allred, 117 F.3d 278, 281 (citations omitted). "A state court or a federal court sitting in diversity may assert jurisdiction if: (1) the state's long-arm statute applies, as interpreted by the state's courts; and (2) if due process is satisfied under the fourteenth amendment to the United States Constitution." Id. at 281 (quoting Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d 612, 616 (5th Cir. 1989)). Only if the requirements of both the long-arm statute and Due Process Clause are met can the court exercise personal jurisdiction over a non-resident defendant. Id.

I. Mississippi Long-Arm Statute

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

Any nonresident person... 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. Thus, jurisdiction is proper over a defendant if (1) the defendant entered into a contract with the plaintiff to be performed in whole or in part in Mississippi (the contract prong); (2) the defendant committed a tort, in whole or in part, against a plaintiff in Mississippi (the tort prong); or (3) the defendant was "doing business" in Mississippi (the "doing business" prong). See Bally Gaming, Inc. v. Caldwell, 12 F.Supp. 3d 907, 912 (S.D.Miss. Mar. 28, 2014).

The court must first determine whether Mississippi's long-arm statute provides for the exercise of personal jurisdiction over Bombardier. If Mississippi law does not provide for the assertion of personal jurisdiction, the court need not ...


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