United States District Court, N.D. Mississippi, Aberdeen Division
CAROLYN WARE, Individually and on behalf of Terrance Ware, Deceased; and PLAINTIFF
SAILUN CO., LTD.; SAILUN TIRE LATIN AMERICA, LLC; TBC CORPORATION; TBC BRANDS; SOUTH GATEWAY TIRE CO., INC.; GATEWAY TIRE & SERVICE CENTER - STARKVILLE; JOHN DOES 1-10, Jointly & Individually; DYNAMIC TIRE CORP; and THE HERCULES TIRE & RUBBER CO. DEFENDANTS MISSISSIPPI PUBLIC ENTITY WC TRUST INTERVENOR-PLAINTIFF
M. BROWN UNITED STATES DISTRICT JUDGE.
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.
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,
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.
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.
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., ” 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.
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.
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.
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.
filed her second amended complaint on February 8, 2017. Doc.
#164. On February 10, 2017, Sailun filed its third motion to
dismiss. Doc. #166.
First Motion to Dismiss
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,
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
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).
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 ...