United States District Court,

D. Minnesota.

Charles Nathan BYRD, Plaintiff,

v.

J RAYL TRANSPORT, INC., and Bennie Hughes, III, Defendants.

 

Civil No. 13–2279 (RHK/LIB).

Jan. 29, 2014.

 

Carlos M. Fleites, Carlos M. Fleites P.A., Miami, FL, Jeanette M. Bazis, Katherine M. Swenson, Greene Espel PLLP, Minneapolis, MN, for Plaintiff.

 

Cheryl A. Hood Langel, Robert L. McCollum, McCollum Crowley Moschet Miller & Laak, Ltd., Minneapolis, MN, for Defendant J Rayl Transport, Inc.

 

MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, District Judge.

INTRODUCTION

*1 In this negligence action, Plaintiff Charles Nathan Byrd seeks compensation for injuries he sustained when a truck owned by Defendant J Rayl Transport, Inc. (“J Rayl”) and driven by its employee, Defendant Bennie Hughes III, collided with his vehicle. J Rayl now moves to dismiss for lack of personal jurisdiction.FN1 For the reasons that follow, its Motion will be denied.

 

FN1. Hughes also moved to dismiss for lack of personal jurisdiction but Byrd has since voluntarily dismissed Hughes from the action; accordingly, J Rayl is the sole remaining Defendant and movant.

 

BACKGROUND

J Rayl is a trucking business incorporated in Ohio with its principal place of business in Ohio. As a motor carrier transporting property or persons across state lines, J Rayl is subject to federal regulation. See 49 U.S.C. § 13501 et seq. Among other requirements, J Rayl must designate an agent to accept service of process in each state in which it operates. § 13304 (“A motor carrier or broker providing transportation subject to jurisdiction under chapter 135 … shall designate an agent in each State in which it operates by name and office address on whom process issued by a court with subject matter jurisdiction may be served in an action brought against that carrier or broker.”). Because J Rayl travels through Minnesota, it has a registered agent in Minnesota. Byrd contends J Rayl has therefore consented to jurisdiction in Minnesota, which J Rayl disputes.

 

The parties agree that jurisdiction in Minnesota is lacking unless J Rayl has consented to it, as the relevent collision occurred in Texas, J Rayl has little contact with Minnesota, and Byrd served J Rayl with process at its place of business in Akron, Ohio.

 

ANALYSIS

Traditionally, a state may establish jurisdiction over a non-resident defendant by the defendant’s presence in the state or by his consent. Most jurisdictional challenges focus on a defendant’s presence, either through his contacts with the state or his physical presence there at the moment he is served with process. E.g., McGee v. Int’l Life Ins. Co., 355 U.S. 220 (1957); Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945). J Rayl’s lack of presence in Minnesota is not contested here. Instead, Byrd seeks to establish jurisdiction through J Rayl’s consent. A party most often consents to jurisdiction by appearing in the action, thereby waiving the defense. But consent may be established in other ways as well, such as designating an agent for service of process within the state. See Ocepek v. Corporate Transport, Inc., 950 F.2d 556, 557 (8th Cir.1991); Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1199 (8th Cir.1990).

 

In Ocepek, the Eighth Circuit explained: “This Court held [in Knowlton ] that the presence of an agent designated pursuant to a state statute was sufficient to indicate consent to be sued in that jurisdiction. In dicta, we also stated that the presence of an agent designated pursuant to 49 U.S.C. § 10330(b) would be sufficient to confer personal jurisdiction on the District Court. If our present facts ended there, we would have no hesitation in finding that [the defendant] consented to be sued in Missouri.” Ocepek, 950 F.2d at 557 (internal citations omitted). Thus, the Circuit has twice stated (albeit in dicta) that designating an agent to receive process under 49 U.S.C. § 10330 is sufficient to confer personal jurisdiction. The Circuit’s language is explicit and the Court is compelled to follow it, irrespective of J Rayl’s arguments that the Circuit is mistaken.FN2 By registering an agent in Minnesota, J Rayl has consented to jurisdiction here.

 

FN2. Although other Circuits may have decided the issue more recently and come to the opposite conclusion, e.g. N. Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 16 n. 6 (1st Cir.2009); Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1293 (11th Cir.2000); Pittock v. Otis Elevator Co., 8 F.3d 325, 329 (6th Cir.1993); Siemer v. Learjet Acquisition Corp., 966 F.2d 179, 182 (5th Cir.1992), J Rayl has not presented any intervening controlling precedent undercutting the Eighth Circuit’s decisions in Ocepek and Knowlton.

 

CONCLUSION

*2 Based on the foregoing, and all the files, records, and proceedings herein, it is ORDERED that Defendants’ Motion to Dismiss for Lack of Jurisdiction (Doc. No. 15) is DENIED.

United States District Court,

M.D. Louisiana.

Kathy HULBERT and Paula Barrino

v.

John GRAMMER, Celadon Trucking Services, Inc. and Regis Insurance Company.

 

Civil Action No. 3:12–cv–443.

Feb. 3, 2014.

 

Peyton Patrick Murphy, Murphy Law Firm, Denise Ann Vinet, Vinet & Day, LLC, Baton Rouge, LA, for Kathy Hulbert and Paula Barrino.

 

M. Davis Ready, Susan M. Caruso, Simon, Peragine, Smith & Redfearn, LLP, New Orleans, LA, for Defendants.

 

RULING AND ORDER

SHELLY D. DICK, District Judge.

*1 BEFORE THE COURT is a Motion for Summary Judgment FN1 filed by Defendants, Celadon Trucking Services, Inc. (“Celadon”) and John Grammer (“Grammer). The Motion is opposed FN2 by the Plaintiffs, Kathy Hulbert and Paula Barrino. For the reasons that follow, the Defendants’ Motion for Summary Judgment is denied.

 

FN1. Rec. Doc. 23.

 

FN2. Rec. Doc. 26.

 

I. FACTS

The undisputed facts establish that, on March 20, 2011, the right rear interior tire of the trailer on a tractor trailer owned by Celadon and driven by Grammer experienced a flat tire while traveling on Interstate 12 westbound in St. Tammany Parish, Louisiana. The tire separated from its core first striking an unidentified vehicle and then striking the windshield of a Honda Civic in which the Plaintiffs, Hulbert and Barrino, were traveling as passengers.

 

The Defendants offered summary judgment evidence that the subject tire had been inspected four times in the thirty-two day period immediately preceding the incident. An inspection by Wingfoot Commercial tire systems, who was called to the scene to inspect and replace the subject tire, indicated that the depth of the tread on the subject tire was 8/32″, which complied with DOT regulations and Celadon company policy.

 

However, the accident report of the investigating officer, Trooper Dustin Dwight, documented that “all eight tires [on the Celadon trailer] were found to be in poor condition. There was visible dry root [sic] and cracking on the side walls of all tires” .FN3 The investigating officer indicated “tire failure” on vehicle number 1 as a contributing factor and condition of the incident.FN4

 

FN3. Rec. Doc. 26–2.

 

FN4. Id.

 

Celadon’s driver, Defendant Grammer, disagrees with the Trooper’s observations that the trailer tires were dry rotted and in poor condition at the time of the accident. However, the driver conceded that the tires, including the subject trailer tire, were retreads.

 

II. LAW AND ANALYSIS

Defendant Celadon and its driver, Grammer, contend that the evidence of past tire inspections proves that the Defendants conformed their conduct to appropriate standards of care. Essentially, Defendants contend that the Plaintiffs cannot demonstrate breach of duty by Celadon and/or its driver. Defendants rely on McGuinness v. United Service Automobile Association FN5. The Court finds the McGuinness case to be inapposite. While the McGuinness case involved a tire blowout incident, the automobile in the McGuinness case was equipped with “four new Firestone tires”.FN6 In this case, the subject tire was a retread. The nature, extent and efficacy of the Defendants’ prior tire inspections remains a material issue of fact. Whether the Defendants conformed their conduct to the appropriate standard of care, vis a vis retread tires, is an unresolved fact.

 

FN5. 275 So.2d 485, (La.App. 1st Cir.1973).

 

FN6. Id. at 487.

 

In reaching this conclusion, the Court has not considered the Affidavit of Gary Derian offered by the Plaintiffs.FN7 The Defendants have moved to strike FN8 Derian’s Affidavit on the grounds that Derian has not been previously identified as an expert for the Plaintiffs,FN9 and the deadline for identifying trial witnesses expired on July 1, 2013.

 

FN7. Rec. Doc. 26–11.

 

FN8. Rec. Doc. 32.

 

FN9. Rec. Doc. 17.

 

*2 The Court previously granted the Defendants’ Motion to Strike Gary Derian’s Affidavit.FN10 Accordingly, the Court has not considered Derian’s Affidavit in reaching its decision on the present Motion for Summary Judgment.

 

FN10. Rec. Doc. 40.

 

III. RULING

For the foregoing reasons, the Defendants’ Motion for Summary Judgment is hereby DENIED.