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Ware v. Sailun Co., Ltd.

United States District Court, N.D. Mississippi, Aberdeen Division

February 28, 2017

CAROLYN WARE, Individually and on behalf of Terrance Ware, Deceased; and PLAINTIFF



         This products liability action is before the Court for consideration of: (1) Sailun Co., Ltd.'s motion to dismiss, Doc. #33; (2) Carolyn Ware's “Renewed Motion for Jurisdictional Discovery, ” Doc. #70; (3) Sailun Co. Ltd.'s second motion to dismiss, Doc. #94; and (4) Sailun Co. Ltd.'s third motion to dismiss, Doc. #165.


         Procedural History

         On November 23, 2015, Carolyn Ware filed a complaint in the Circuit Court of Lowndes County, Mississippi, against Sailun Co., Ltd. (“Sailun”); Sailun Tire Latin America, LLC (“Sailun LLC”); TBC Corporation; TBC Brands; South Gateway Tire Co., Inc. (“South Gateway”); Gateway Tire & Service Center - Starkville (“Gateway Starkville”); and certain fictitious parties. Doc. #2. In her complaint, Ware alleged that the various defendants negligently manufactured and/or distributed a tire which caused the death of her husband, Terrance. Id.

         On January 8, 2016, Sailun, alleging diversity jurisdiction, removed the state court action to this Court. Doc. #1. Gateway Starkville, South Gateway, and TBC Corporation joined the notice of removal on January 12, 2016. Doc. #7; Doc. #8. On January 21, 2016, the Clerk of the Court issued a notice of incomplete process as to TBC Brands. Doc. #13.

         On March 10, 2016, Sailun filed a motion to dismiss Ware's complaint for lack of personal jurisdiction and insufficient service of process. Doc. #33. On August 17, 2016, Ware filed a motion to conduct jurisdictional discovery related to Sailun's contacts with the state of Mississippi. Doc. #70.

         On August 30, 2016, Ware, after receiving leave of the Court, filed an amended complaint against “Sailun Group Co., Ltd., ” TBC Corporation, Dynamic Tire Corp., and Hercules Tire and Rubber Co. Doc. #82. On September 7, 2016, Sailun, responding on behalf of “Sailun Group Co., Ltd., ”[1] filed a motion to quash service of process. Doc. #89. Six days later, on September 13, 2016, Sailun filed a motion to dismiss the amended complaint for lack of personal jurisdiction and insufficient service of process. Doc. #94. Ware responded in opposition to each of these motions. Doc. #99; Doc. #102. Sailun replied. Doc. #104; Doc. #109.

         Approximately two months later, on October 31, 2016, Sailun filed a motion to quash service of process of the amended complaint. Doc. #135. Ware responded in opposition to the second motion to quash on November 7, 2016. Doc. #145. Sailun replied on November 9, 2016. Doc. #146.

         On January 27, 2017, United States Magistrate Judge David A. Sanders, acting on Ware's motion, issued an order authorizing Ware to serve Sailun by serving Sailun's counsel of record in this action or its counsel of record in an action currently pending in the Circuit Court in Palm Beach County, Florida. Doc. #155; Doc. #100. Ware served Sailun's Florida counsel with a summons and a copy of the first amended complaint on February 3, 2017. Doc. #161.

         On February 6, 2017, Judge Sanders, acting on an unopposed motion filed by Ware, granted Ware leave to file a second amended complaint to: (1) rename “Hercules Tire and Rubber Co.” as “The Hercules Tire & Rubber Company;” and (2) rename “Sailun Group Co., Ltd.” as “Sailun Co., Ltd.” Doc. #162; Doc. #141. The same day, Judge Sanders entered an order finding that the February 3, 2017, service of process on Sailun mooted Sailun's motions to quash. Doc. #163.

         Ware filed her second amended complaint on February 8, 2017. Doc. #164. On February 10, 2017, Sailun filed its third motion to dismiss. Doc. #166.


         Sailun's First Motion to Dismiss

         As a general rule, “[a]n amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading.” King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Accordingly, the filing of an amended complaint will ordinarily moot a pending motion to dismiss unless the amended complaint “on its face” fails to address the alleged defects identified in the motion to dismiss. See McIntyre v. City of Rochester, __ F.Supp.3d__, No. 16-cv-640, 2017 WL 87162, at *1 (W.D.N.Y. Jan. 9, 2017) (finding motion to dismiss moot where “[a]t least on its face, the amended complaint appears to address those alleged defects” identified by motion to dismiss); Polk v. Psychiatric Prof'l Servs., Inc., No. 09-cv-799, 2010 WL 1908252, at *2 (S.D. Ohio Mar. 29, 2010) (“[W]hen a motion to amend only addresses a discrete issue, it may not moot the underlying motion to dismiss.”). However, a defendant may moot an earlier motion to dismiss by filing a second motion advancing “the same arguments raised in the [earlier] motion to dismiss.” Parsons v. City of Hous., No. H-10-4302, 2011 WL 5040452, at *2 n.3 (S.D. Tex. Oct. 24, 2011).

         Here, Sailun's first motion to dismiss sought dismissal on the grounds that: (1) Ware's service of the original complaint on Oriente Triangle Latin America, Inc. was insufficient; and (2) this Court lacks personal jurisdiction over Sailun. See Doc. #32. The second motion to dismiss seeks dismissal on the same grounds raised in the first motion, plus argues that a subsequent service attempt made on Leopard, Inc. was also insufficient. See Doc. #95. The first and second amended complaints do not on their face address either of these alleged defects. See Doc. #82; Doc. #164. Accordingly, the filing of the amended complaint did not moot either motion to dismiss. However, because Sailun's second motion to dismiss raises the same arguments as its first motion to dismiss, Sailun's first motion to dismiss was mooted by its second motion to dismiss and will be denied as moot. See Parsons, 2011 WL 5040452, at *2 n.3. Sailun's third motion to dismiss raises the same personal jurisdiction argument but does not address the issue of service. See Doc. #166. Accordingly, to the extent the second motion to dismiss seeks dismissal for lack of personal jurisdiction, it has been mooted. However, out of an abundance of caution, the Court will address the merits of the second motion to dismiss as they relate to service of process.


         Service of Process

         “In the absence of valid service of process, proceedings against a party are void.” Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981). Thus, “Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim if service of process was not timely made in accordance with Federal Rule of Civil Procedure 4 or was not properly served in the appropriate manner.” Thomas v. New Leaders for New Sch., 278 F.R.D. 347, 349-50 (E.D. La. 2011) (quoting Wallace v. St. Charles Parish Sch. Bd., No.04-1376, 2005 WL 1155770, at *1 (E.D. La. May 5, 2005)). “When service of process is challenged, the party on whose behalf it is made must bear the burden of establishing its validity.” Aetna Bus. Credit, Inc., 635 F.2d at 435. “A return of service is prima facie evidence of the manner of service. Unless some defect in service is shown on the face of the return, a motion to dismiss under Rule 12(b)(5) requires the defendant to produce admissible evidence establishing the lack of proper service.” Flores v. Koster, No. 3:11-cv-726, 2013 WL 4874115, at *2 (N.D. Tex. June 28, 2013) (internal citations omitted).

         “Jurisdiction over the person generally is dealt with by Rule 4, governing the methods of service through which personal jurisdiction may be obtained.” Point Landing, Inc. v. Omni Capital Int'l, Ltd., 795 F.2d 415, 424 (5th Cir. 1986). “Specifically, Rule 4(h) governs the service of domestic and foreign corporations, ” such as Sailun. Retractable Techs., Inc. v. Occupational & Med. Innovations, Ltd., 253 F.R.D. 404, 405 (E.D. Tex. 2008). Under Rule 4(h)(2), a plaintiff must serve a corporation “at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal ...

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