Cases

Arnold v. Allied Van Lines

United States District Court, W.D. Texas, San Antonio Division.

Michael ARNOLD, Linda Arnold, Plaintiffs

ALLIED VAN LINES, INC., Defendant

SA-21-CV-00438-XR

Signed June 14, 2024

Synopsis

Background: Property owners brought action in state court against carrier, which owners hired to transport personal property and household items for their move from Alabama to Texas, seeking to recover for items that were damaged in transit. Following removal and jury verdict awarding owners $31,909 in damages, owners moved for award of attorney’s fees and costs and transporter moved for costs.

Holdings: The District Court, Xavier Rodriguez, J., held that:

^[1] transaction between owners and carrier was not collect on delivery (COD), and thus owners were not entitled to award of attorney’s fees under Carmack Amendment;

^[2] taxation of costs in favor of owners would be declined;

^[3] carrier was entitled to award of costs under offer of judgment rule of procedure on ground that owners did not obtain more favorable verdict than unaccepted offer;

^[4] carrier’s depositions of owners were necessary, entitling carrier to award of costs for deposition transcripts;

^[5] carrier was entitled to award of costs for deposition exhibits;

^[6] carrier failed to demonstrate that trial exhibit notebooks were necessarily obtained for use at trial, which was required for award of costs for such notebooks; and

^[7] carrier was not entitled to requested award of $4,604.06 for its expert’s inspection and travel costs.

Owners’ motion denied; carrier’s motion granted in part.

See also 2022 WL 2392875.

West Headnotes (21)

[1]	CarriersDelivery of goods shipped C.O.D
	As a general rule, the common practice of shipping goods collect on delivery (COD) to a buyer instructs the carrier not to deliver the goods until the price has been collected.

[2]

Costs, Fees, and SanctionsCarriers

Transaction between property owners and carrier, in which owners hired carrier to transport personal property and household items from Alabama to Texas, was not collect on delivery (COD), and thus owners were not entitled to award of attorney’s fees under Carmack Amendment, which governed carrier liability for transportation services in interstate commerce, even though owners understood transaction to be COD, where owners paid carrier prior to delivery of items in Texas. 49 U.S.C.A. § 14708.

[3]	Costs, Fees, and SanctionsBill of Costs, Statement, or Memorandum
	District Court would decline to tax costs in favor of property owners, who obtained damages award against carrier to recover for items damaged during transit for owners’ move from Alabama to Texas, where owners failed to file bill of costs with Court as required by local procedural rules. U.S.Dist.Ct.Rules W.D.Tex. Rule CV-54.

[4]

Costs, Fees, and SanctionsRecovery less favorable than tender or offer

Carrier was entitled to award of costs under offer of judgment rule of procedure, in property owners’ action seeking to recover damages for personal property and household items that were damages during transit for owners’ move from Alabama to Texas, on ground that owners did not obtain more favorable verdict than unaccepted offer; owners ultimately recovered $31,909 in damages following jury trial, but carrier made offer of judgment for $32,500.00 prior to trial. Fed. R. Civ. P. 68.

[5]	Costs, Fees, and SanctionsDiscretion of court
	In the context of awarding costs, offer of judgment rule of procedure is mandatory and leaves no room for court discretion. Fed. R. Civ. P. 68.

[6]	Costs, Fees, and SanctionsDepositions
	Video depositions and written deposition transcripts are taxable costs so long as they are necessarily obtained for use in a case. 28 U.S.C.A. § 1920(2).

[7]	Costs, Fees, and SanctionsDepositions
	In the context of whether the cost in taking a deposition is a taxable cost, the deposition need not be introduced into evidence at trial in order to be necessarily obtained for the use in the case. 28 U.S.C.A. § 1920(2).

[8]	Costs, Fees, and SanctionsDepositions
	Under the taxation of costs statute, copies of depositions are allowed as costs if they were necessarily obtained for use in a case. 28 U.S.C.A. § 1920(4).

[9]	Costs, Fees, and SanctionsQuestions of law and fact
	Whether a deposition or copy was necessarily obtained for use in the case, so as to be a taxable cost, is a factual determination to be made by the district court. 28 U.S.C.A. § 1920(2, 4).

[10]	Costs, Fees, and SanctionsDepositions
	Under the taxation of costs statute, a court does not generally award costs for both deposition transcripts and videos unless the videos were actually used at trial. 28 U.S.C.A. § 1920(2).

[11]

Costs, Fees, and SanctionsDepositions

Carrier’s depositions of property owners were necessary in owners’ action to recover for damage to personal property and household items in move from Alabama to Texas, and thus carrier was entitled to award of costs for deposition transcripts, where, at time deposition transcripts were ordered, carrier’s counsel could have reasonably anticipated using transcripts in preparing motion for summary judgment or in preparing for trial. 28 U.S.C.A. § 1920(2, 4).

[12]

Costs, Fees, and SanctionsDepositions

Carrier’s video depositions of property owners were not necessary in owners’ action to recover for damage to personal property and household items in move from Alabama to Texas, and thus carrier was not entitled to award of costs for video depositions, where video depositions were not used at trial, and carrier was awarded costs for deposition transcripts, which were necessary for trial. 28 U.S.C.A. § 1920(2).

[13]

Costs, Fees, and SanctionsDepositions

Carrier of property owners’ personal property and household items, transported from Alabama to Texas for owners’ move, was entitled to award of costs for deposition exhibits following trial in owners’ action to recover damages for items damaged in transit, where carrier could have reasonably expected to use depositions and the associated exhibits in preparation for trial since deposition transcripts were necessarily obtained for use in case. 28 U.S.C.A. § 1920(2).

[14]

Costs, Fees, and SanctionsDepositions

Courts routinely permit the award of deposition exhibit costs under the taxation of costs statute, finding that a party has a reasonable expectation that the depositions, as well as their associated exhibits, would be used for trial preparation. 28 U.S.C.A. § 1920(2).

[15]	Costs, Fees, and SanctionsPrinting and copying Costs, Fees, and SanctionsExemplifications and exhibits
	The taxation of costs statute permits the court to tax as costs fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; indeed the losing party should be taxed for the cost of reproducing relevant documents and exhibits for use in the case. 28 U.S.C.A. § 1920(4).

[16]

Costs, Fees, and SanctionsExemplifications and exhibits

Carrier of property owners’ personal property and household items, transported from Alabama to Texas for owners’ move, failed to demonstrate that trial exhibit notebooks were necessarily obtained for use at trial on owners’ claims seeking to recover damages for items damaged in transit, and thus were not entitled to award of costs for such notebooks, where all parties’ trial exhibits were filed and submitted to court electronically. 28 U.S.C.A. § 1920(4).

[17]

Costs, Fees, and SanctionsExperts

Carrier was not entitled to requested award of $4,604.06 for its expert’s inspection and travel costs prior to trial in property owners’ action to recover for damage to personal property and household items in move from Alabama to Texas; witness fee statute limited scope of recoverable fees to witness’s appearance before court or at deposition, and expert’s inspection of damages items did not relate to appearance at either deposition or before court. 28 U.S.C.A. §§ 1821(a)(1), 1920.

[18]

Costs, Fees, and SanctionsExperts

Carrier was entitled to award of $160 in costs for expert’s attendance at trial in property owners’ action to recover for damage to personal property and household items in move from Alabama to Texas; expert committed four days to trial, two in courtroom and two for travel time, and witness fee statute allowed for expert to be paid $40 per day for each day’s attendance at trial. 28 U.S.C.A. §§ 1821(b), 1920.

[19]

Costs, Fees, and SanctionsTravel expenses

Carrier was entitled to award of $897.96 in costs for airfare incurred by its expert to travel to trial in property owners’ action to recover for damage to personal property and household items in move from Alabama to Texas; expert testified that he lived in Arizona, and witness fee statute permitted recovery of costs for expert’s normal travel expenses within and outside judicial district. 28 U.S.C.A. §§ 1821(c)(4), 1920.

[20]

Costs, Fees, and SanctionsTravel expenses

Carrier’s award of costs for expert’s subsistence allowance incurred for trial in property owners’ action to recover for damage to personal property and household items in move from Alabama to Texas would be limited to total of $224; even though expert incurred $230 in food and transportation fees over four days that expert committed to trial, current regional rate for daily subsistence allowance under witness fee statute was $64 for full day and $48 for first and last day of travel. 28 U.S.C.A. §§ 1821(d)(1, 2, 3), 1920.

[21]	Costs, Fees, and SanctionsTravel expenses
	District Court would decline to award carrier any costs associated with daily lodging for its expert, who appeared at trial in property owners’ action to recover for damage to personal property and household items in move from Alabama to Texas, even though expert testified that he lived in Arizona, where expert did not bill for hotel expenses. 28 U.S.C.A. §§ 1821(c)(4), 1920.

Attorneys and Law Firms

Nicholas S. Bressi, Law Office of Nicholas Bressi, Austin, TX, for Plaintiffs.

Emileigh Stewart Hubbard, Vic Houston Henry, Henry Oddo Austin & Fletcher, P.C., Dallas, TX, for Defendant.

ORDER

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

*1 On this date, the Court considered Plaintiffs’ application for attorney’s fees (ECF No. 105) and Defendant’s response (ECF No. 111). In addition, the Court also considered Defendant’s motion to award costs (ECF No. 106) and Plaintiffs’ response (ECF No. 107). After careful consideration, the Court issues the following order.

BACKGROUND

Plaintiffs Michael and Linda Arnold are husband and wife. In 2020, they moved residences from Alabama to Texas. In preparation for their move, the Arnolds hired Defendant Allied Van Lines, Inc. (“Allied”) to pack, store, and transport their household goods and personal property (“Items”).

Allied packed the Plaintiffs’ Items from March 31, 2020 to April 3, 2020, and stored Plaintiffs’ Items until the beginning of September 2020, at which point Allied delivered the Items to Plaintiffs in Texas. However, upon the delivery, Plaintiffs learned that some Items were damaged while in Allied’s possession.

On April 13, 2021, Plaintiffs brought suit against Allied in state court for the damage to the Items. See ECF No. 1. On May 3, 2021, Allied removed Plaintiffs’ claims to this Court as Plaintiff sought a claim under the Carmack Amendment, a federal statute governing the liability of those who provide transportation services in interstate commerce within the jurisdiction of the Surface Transportation Board, and claims for loss or damage to shipments moved in interstate commerce. 49 U.S.C. § 14706.

On March 18, 2022, Allied extended an offer of judgment to Plaintiffs for $32,500.00. ECF No. 106-2. However, Plaintiffs ultimately rejected the offer of judgment, electing instead to proceed to trial. See ECF No. 106.

The case was then tried by a jury from January 16, 2024, to January 18, 2024, before the undersigned. Ultimately, the jury issued a verdict awarding Plaintiffs $31,909 in damages. ECF Nos. 102, 103.

On February 7, 2024, Plaintiffs filed an application for attorney’s fees (ECF No. 105), seeking attorney’s fees under 49 U.S.C. § 14708 as well as costs. In turn, on February 8, 2024, Allied filed a motion to award costs (ECF No. 106) based on Plaintiffs’ alleged failure to obtain a judgment more favorable than the unaccepted offer.

DISCUSSION

I. Plaintiffs’ Application for Attorney’s Fees (ECF No. 105)

According to the parties, Plaintiffs’ entitlement to attorney’s fees under 49 U.S.C. § 14708 turns on (1) whether the transaction between Plaintiffs and Allied was a collect-on-delivery (“C.O.D.”) transaction and (2) whether Plaintiffs are “prevailing parties” such that this Court may properly award attorney’s fees. ECF Nos. 105, 111.

The language of 49 U.S.C. § 14708(d) reads:

In any court action to resolve a dispute between a shipper of household goods and a carrier providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 concerning the transportation of household goods by such carrier, the shipper shall be awarded reasonable attorney’s fees if–

(1) the shipper submits a claim to the carrier within 120 days after the date the shipment is delivered or the date the delivery is scheduled, whichever is later;

*2 (2) the shipper prevails in such court action; and

(3)(A) the shipper was not advised by the carrier during the claim settlement process that a dispute settlement program was available to resolve the dispute;

(B) a decision resolving the dispute was not rendered through arbitration under this section within the period provided under subsection (b)(8) of this section or an extension of such period under such subsection; or

(C) the court proceeding is to enforce a decision rendered through arbitration under this section and is instituted after the period for performance under such decision has elapsed.

(emphasis added). Notably, 49 U.S.C. § 14708(f) specifically limits applicability of the section’s provisions to “collect-on-delivery transportation of household goods.”

a. Was the Move a C.O.D. Transaction?

According to Plaintiffs, “the undisputed and uncontroverted evidence at trial proved that the Bill of Lading and Freight Bill signed by both parties clearly marked the ‘Payment Type’ as ‘C.O.D.’ ” ECF No. 105 at 3; see Pl.’s Trial Exs. 3, 4. In addition, Plaintiffs contends that “the uncontroverted testimony of Michael Arnold established that Plaintiffs paid Allied via the making of a deposit paid on April 9, 2020 in the amount of $8,149.95 and the shipment was then paid COD at time of delivery on September 8, 2020, in the amount of $15,785.74” and that “Mr. Arnold further testified that he was required to pay at time of the delivery, and he understood the payment method to be ‘C.O.D.’ ” ECF No. 105 at 3.

According to Allied, Plaintiffs paid for the shipment in advance of the delivery as demonstrated by Plaintiffs’ credit card receipts and per the facts stipulated to by Plaintiffs at trial. See Pl.’s Trial Ex. 23; Def.’s Trial Ex. 23; ECF No. 82 at 4 (“Prior to delivery, Plaintiffs made payments for their move on April 20, 2020, and September 8, 2020, for a total of $23,935.69.”); id. (“On September 9, 2020, Allied delivered the Plaintiffs’ household goods to them in Guadalupe County, Texas.”).

^[1]“As a general rule, the common practice of shipping goods collect on delivery (C.O.D.) to a buyer instructs the carrier not to deliver the goods until the price has been collected.” Young v. Santa Fe Trail Transp. Co., 179 Kan. 678, 681, 298 P.2d 235 (1956); see also Hoover v. Allied Van Lines, Inc., 111 P.3d 1076 (Kan. Ct. App. 2005). Specifically, Black’s Law Dictionary defines C.O.D. as “1. Cash on delivery; collect on delivery. By consenting to this delivery term, the buyer agrees to pay simultaneously with delivery and appoints the carrier as the buyer’s agent to receive and transmit the payment to the seller. With C.O.D. contracts, the practice of carriers has traditionally been to disallow inspection before payment. 2. Costs on delivery. 3. Cash on demand.” C.O.D., Black’s Law Dictionary (11th ed. 2019) (emphasis added). Thus, to recover attorney’s fees under 49 U.S.C. § 14708, Plaintiffs must have paid Allied at the time of delivery—not before or after delivery.

^[2]Here, the evidence demonstrates that the transaction was not C.O.D. Despite Mr. Arnold’s testimony that he understood the move to be C.O.D. and the Bill of Lading’s indication that the transaction was C.O.D., ECF No. 105 at 66–68; Trial Tr. 102:23–103:16, the other evidence and Plaintiffs’ own stipulations demonstrate the contrary, see ECF No. 105 at 69–71; ECF No. 82 at 4. First, the credit card receipts proffered by Plaintiffs here show that payment for the shipment was made before delivery. ECF No. 105 at 69–71. Second, Plaintiff’s stipulated that “[p]rior to delivery, Plaintiffs made payments for their move on April 20, 2020, and September 8, 2020, for a total of $23,935.69” and that “[o]n September 9, 2020, Allied delivered the Plaintiffs’ household goods to them in Guadalupe County, Texas.” ECF No. 82 at 4.

*3 Accordingly, since Plaintiffs paid Allied before delivery, Plaintiffs move was not a C.O.D. transaction. Therefore, Plaintiffs are not entitled to attorney’s fees. See 49 U.S.C. § 14708(f).

b. Are Plaintiffs Prevailing Parties?

Given that the Court concludes that the transaction between the Plaintiffs and Allied was not C.O.D., the Court need not address whether Plaintiffs are prevailing parties for the purposes of attorney’s fees under 49 U.S.C. § 14708.

c. Entitlement to Costs?

^[3]Though Plaintiffs purport to seek recovery of costs in their motion, Plaintiffs have not filed a bill of costs with the Court pursuant to Local Rule CV-54. See ECF No. 105. Accordingly, the Court declines to tax costs in favor of Plaintiffs. See MWK Recruiting, Inc. v. Jowers, No. 1:18-CV-444-RP, 2024 WL 756280, at *6 (W.D. Tex. Jan. 29, 2024) (“Failure to file a bill of costs precludes a party from recovering taxable costs awarded under Rule 54(d)(1).” (alterations omitted)).

II. Defendant’s Motion to Award Costs (ECF No. 106)

In its motion to award costs, Allied contends that it made a valid offer of judgment to Plaintiff for $32,500.00 on March 18, 2022, which Plaintiffs ultimately rejected. ECF No. 106 at 3. Allied argues that the judgment obtained by Plaintiffs was not more favorable than that unaccepted offer of judgment, and Allied is thus entitled to recover from Plaintiffs all costs incurred after the offer was made. Id.

Under Rule 68(a), “[a]t least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.” However, if that offer is rejected and “[i]f the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” Fed R. Civ. Pro. 68. The Supreme Court has stated that “[t]he plain purpose of Rule 68 is to encourage settlement and avoid litigation.” Marek v. Chesny, 473 U.S. 1, 5, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985).

^[4] ^[5]Here, given that Plaintiff ultimately recovered $31,909 in damages from Defendant Allied Van Lines, Inc. and Allied made an offer of judgment for $32,500.00 on March 18, 2022, see ECF Nos. 103, 106-2, the judgment obtained by Plaintiffs is not more favorable than the unacceptable offer. Accordingly, Allied is entitled to recover costs incurred after March 18, 2022, as discussed below.¹

a. Which Costs is Allied Entitled to?

The costs that Allied may recover are set out under 28 U.S.C. § 1920. See Hobbs v. Alcoa Inc., No. A-04-CA-566 AWA, 2006 WL 8435708, at *4 (W.D. Tex. July 7, 2006), aff’d, 501 F.3d 395 (5th Cir. 2007).² Section 1920 provides:

A judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

*4 28 U.S.C. § 1920.

Allied claims that it incurred the following costs after March 18, 2022:

1. $4,578.05 for deposition transcripts of Plaintiff Linda and Michael Arnold;

2. $1,700.00 for video depositions of Plaintiffs Linda and Michael Arnold;

3. $66.00 for deposition exhibits for depositions of Linda and Michael Arnold;

4. $3,111.54 for trial exhibit notebooks for trial;

5. $4,604.06 in expert witness fees for inspection and travel;

6. $4,077.96 in expert witness fees for trial testimony and travel.

ECF No. 106 at 4–5. In support of its motion, Allied submits receipts documenting these costs. ECF Nos. 106-3, 106-4, 106-5, 106-6, 106-7; 106-8.

i. Deposition Transcripts & Video Depositions

^[6] ^[7] ^[8] ^[9] ^[10]“Video depositions and written deposition transcripts are taxable costs under § 1920(2) so long as they are ‘necessarily obtained for use’ in a case.” Cinemark Holdings, Inc. v. Factory Mut. Ins. Co., No. 4:21-CV-00011, 2024 WL 964723, at *4 (E.D. Tex. Mar. 6, 2024) (quoting Gibson Brands, Inc. v. Armadillo Distrib. Enters., Inc., No. 4:19-cv-00358, 2023 WL 2899050, at *4 (E.D. Tex. Apr. 11, 2023)). Costs related to the taking of depositions are allowed under § 1920(2) “if the materials were necessarily obtained for use in the case.” 28 U.S.C. § 1920(2); Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 536 (5th Cir. 1999). “[A] deposition need not be introduced into evidence at trial in order to be necessarily obtained for the use in the case.” Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991) (quotations omitted). In addition, copies of depositions are allowed if they were necessarily obtained for use in a case pursuant to § 1920(4). Gaddis v. United States, 381 F.3d 444, 456 (5th Cir. 2004). Whether a deposition or copy was necessarily obtained for use in the case is a factual determination to be made by the district court. Fogleman, 920 F.2d at 285–86. However, “the Court does not generally award costs for both transcripts and videos unless the videos were actually used at trial.” Two–Way Media, LLC v. AT&T Servs., Inc., No. SA-09-CA-00476-OLG, 2013 WL 12090356, at *3 (W.D. Tex. Nov. 22, 2013).

^[11] ^[12]Here, the Court concludes that while the deposition transcripts obtained for Michael and Linda Arnold were necessary for use in the case, the video deposition costs were not necessary and are unrecoverable. At the time the deposition transcripts were ordered, Allied’s counsel could have reasonably anticipated using the transcripts in preparing its motion for summary judgment or in preparing for trial. Accordingly, the Court will award Allied’s deposition transcript costs. Two–Way Media, 2013 WL 12090356, at *3 (“Deposition costs are generally allowed if the taking of the deposition is shown to have been reasonably necessary in the light of facts known to counsel at the time it was taken.”). However, given that the video deposition was not used at trial and that the Court is already awarding costs for deposition transcripts, the Court will not award video deposition costs. See id.³

ii. Deposition Exhibits

*5 ^[13] ^[14]With respect to the deposition exhibit costs sought by Allied, “[c]ourts routinely permit the award of exhibit costs, finding that a party has a reasonable expectation that the depositions, as well as their associated exhibits, would be used for trial preparation.” Sois v. Crescent Drilling & Prod., Inc., No. SA-19-CV-01194-FB, 2023 WL 8707421, at *5 (W.D. Tex. Oct. 19, 2023), report and recommendation adopted sub nom. Solis v. Crescent Drilling & Prod., Inc., No. CV SA-19-CA-1194-FB, 2023 WL 8704782 (W.D. Tex. Dec. 15, 2023). Here, the Court has already found that the deposition transcripts were necessarily obtained for use in this case, and similarly finds that Allied could have reasonably expected to use the depositions and the associated exhibits in preparation for trial. Accordingly, the Courts will award deposition exhibit costs to Allied.

iii. Trial Exhibit Notebooks

^[15]Section 1920(4) permits the court to tax as costs “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” See also Charles v. Sanchez, No. EP-13-CV-00193-DCG, 2015 WL 11439074, at *13 (W.D. Tex. Oct. 7, 2015). Indeed, the losing party “should be taxed for the cost of reproducing relevant documents and exhibits for use in the case.” Fogleman, 920 F.2d at 286. However, to recover these costs, Allied must demonstrate that “the copies were necessarily incurred for use in the case.” Graves for & on Behalf of W.A.G. v. Toyota Motor Corp., No. 2:09CV169KS-MTP, 2012 WL 13018892, at *7 (S.D. Miss. Apr. 27, 2012) (citing Fogleman v. ARAMCO, 920 F. 2d 278, 286 (5th Cir. 1991)).

^[16]Here, Allied contends, without any additional argument, that its costs for the trial exhibit notebooks were “for necessary use at trial.” ECF No. 106-1 ¶ 7. In response, Plaintiffs argue that such costs were not reasonable as “all parties’ trial exhibits were filed and submitted to the court electronically.” ECF No. 107 at 2. Allied did not file a reply to Plaintiffs’ response. The Court declines to award $3,111.54 in costs to Allied for its trial exhibit notebooks given the electronic submissions.

iv. Expert Witness Fees

Allied seeks recovery of $4,604.06 in expert witness fees for inspection and travel as well as $4,077.96 in expert witness fees for trial testimony and travel. “The Supreme Court has explained that the interrelation of Fed. R. Civ. P. 54(d)(1) (relating to costs other than attorneys’ fees), 28 U.S.C. § 1920 (listing “costs” that may be taxed by a federal court), and 28 U.S.C. § 1821 (authorizing per diem and travel expenses for witnesses) means that expert witness fees in excess of the standard witness per diem and travel allowances cannot be taxed in the absence of express statutory authority to the contrary.” Tyler v. Union Oil Co. of California, 304 F.3d 379, 404 (5th Cir. 2002); see also Roberts v. Baptist Healthcare Sys., LLC, No. 1:20-CV-00092-MAC, 2023 WL 5163374, at *6 (E.D. Tex. June 29, 2023) (“Expert witness fees are not recoverable unless they are court-appointed expert witnesses.”), report and recommendation adopted, No. 1:20-CV-92, 2023 WL 4678545 (E.D. Tex. July 21, 2023). Here, Allied does not identify any statutory authority warranting the recovery of its expert witness fees beyond 28 U.S.C. § 1920. Thus, the Court will limit the taxable costs to those allowances set forth under 28 U.S.C. § 1821.

To begin, 28 U.S.C. § 1821(a)(1) limits its scope to a witness’s appearance in court or at a deposition. Under 28 U.S.C. § 1821(b), “[a] witness shall be paid an attendance fee of $40 per day for each day’s attendance,” and “[a] witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.” In addition, 28 U.S.C. § 1821(c)(4) permits the award of “[a]ll normal travel expenses within and outside the judicial district.” In addition, under 28 U.S.C. § 1821(d)(1), “[a] subsistence allowance shall be paid to a witness when an overnight stay is required at the place of attendance because such place is so far removed from the residence of such witness as to prohibit return thereto from day to day.” And pursuant to 28 U.S.C. § 1821(d)(2)–(3), that subsistence allowance is to be set at the per diem rate for official travel in the area of attendance by employees of the Federal Government. Currently, the rates for San Antonio are $64 for a full day and $48 for the first and last day of travel. Further, the government daily lodging rate for San Antonio is $143.⁴

*6 ^[17]First, with respect to the $4,604.06 sought by Allied for its expert’s inspection and travel costs, Allied seeks to recover those costs associated with its expert’s inspection of Plaintiffs’ damaged Items, not for its expert’s appearance at a deposition or before the Court. As stated above, 28 U.S.C. § 1821(a)(1) limits the section’s scope to a witness’s appearance before a court or at a deposition. Accordingly, the Court declines to award costs for the expert’s inspection and travel.

^[18] ^[19] ^[20] ^[21]Second, with respect to the $4,077.96 in expert witness fees for trial testimony and travel sought by Allied, the Court will award witness fees for the expert’s travel to and appearance at trial, as guided by 28 U.S.C. § 1821. All in, Allied’s expert committed four (4) days to the trial in this case, including two days in the courtroom⁵ and two days of travel time. ECF No. 106-8. In addition, Allied’s expert incurred $897.96 for airfare and $230.00 for food/transportation expenses.⁶ However, despite testifying during trial that he lives in Arizona, Allied’s expert did not bill for any hotel expenses and thus the Court will not award any allowance for daily lodging. Accordingly, the Court awards $897.96 for airfare, $160 for Allied’s expert’s attendance, and $224 in subsistence allowance.

CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiffs’ application for attorney’s fees (ECF No. 105). The Court GRANTS IN PART Defendant’s motion to award costs (ECF No. 106). Defendant is entitled to $4,578.05 in deposition transcript costs, $66.00 in deposition exhibit costs, and $1,281.96 in witness fees.

It is so ORDERED.

All Citations

— F.Supp.3d —-, 2024 WL 3063113

Footnotes

The Court, of course, observes that Allied did not file a bill of costs along with its Rule 68 motion. However, the Court had not yet ruled on whether Allied was entitled to costs under Rule 68. In addition, “Rule 68 is mandatory and leaves no room for court discretion.” Hobbs, 2006 WL 8435708, at *4.
“The costs included in Rule 68 are no more extensive than the costs authorized under Rule 54(d), and in each instance the cost award should be based on 28 U.S.C.A. § 1920.” Wright & Miller, 12 Fed. Prac. & Proc. Civ. § 3006 at n.15 (3d ed.) (citing Thomas v. Caudill, 150 F.R.D. 147 (N.D. Ind. 1993)).
Plaintiffs do not dispute that the deposition transcripts were necessarily obtained for use in the case. See ECF No. 107.
https://www.gsa.gov/travel/plan-book/per-diem-rates.
Allied’s expert offered one day of trial testimony and spent one day on standby in case he was needed. See ECF No. 106-8.
Allied’s expert does not itemize his costs for food or transportation. Accordingly, though 28 U.S.C. § 1821(c)(4) authorizes the award of “[a]ll normal travel expenses within and outside the judicial district,” the Court in its discretion construes these food/transportation expenses as falling under the per diem rates set by 28 U.S.C. § 1821.

End of Document

Bubba’s Towing & Recovery, LLC v. Big Eagle Transp., Inc.

United States District Court for the Northern District of Ohio, Western Division

May 29, 2024, Decided; May 29, 2024, Filed

CASE NO. 3:23 CV 2025

Reporter

2024 U.S. Dist. LEXIS 94826 *; 2024 WL 2748472

BUBBA’S TOWING & RECOVERY, LLC, Plaintiff, v. BIG EAGLE TRANSPORT, INC., et al., Defendants.

Core Terms

personal jurisdiction, forum state, long-arm, trailer, cargo, alleges, argues, Food, motion to dismiss, stream of commerce, contracting, non-resident, Transacting, crashed, tractor, Towing

Counsel: [*1] For Bubba’s Towing & Recovery, LLC, Plaintiff: Daniel J. Bennett, LEAD ATTORNEY, Bennett Law Group, Gahanna, OH.

Judges: James R. Knepp II, UNITED STATES DISTRICT JUDGE.

Opinion by: James R. Knepp II

Opinion

MEMORANDUM OPINION AND ORDER

Introduction

Defendant Vista Food Exchange, Inc., filed a Motion to Dismiss all claims against it for lack of personal jurisdiction in this removed breach of contract and unjust enrichment case. (Doc. 6). The motion is fully briefed and ripe for decision. See Docs. 7, 8. Jurisdiction is proper under 28 U.S.C. § 1332(a). For the following reasons, the Court grants Vista’s Motion.

Background

Plaintiff Bubba’s Towing & Recovery, LLC (“Bubba’s Towing”), is a vehicle towing service based out of Monclova, Ohio. (Doc. 1-2, at 1). Its LLC members are, “upon information and belief,” all domiciled in Ohio. (Doc. 1, at 3). Defendant Big Eagle Transport, Inc. (“Big Eagle”), is a Michigan motor carrier corporation; Defendant Vista Food Exchange, Inc. (“Vista”), is a New York food distribution corporation. (Doc. 1-2, at 1).

On September 30, 2022, a tractor and trailer operated by Big Eagle was involved in an accident on the Ohio Turnpike in Lucas County. Id. at 2. Vista owned the cargo on the trailer. Id. Law enforcement [*2] officers called Plaintiff for towing and recovery services. Id. Plaintiff’s representatives “observed the vehicle had rolled onto its right side and had veered towards the guardrail on the right hand side of the freeway . . . the trailer had ripped open and cargo was strewn about on the Turnpike.” Id. Plaintiff worked with law enforcement for six hours to move the tractor and trailer away from the road, clear cargo and other debris from the road, and move cargo into rental dumpsters. Id. Plaintiff then moved the cargo, tractor, and trailer to its own storage facilities. Id.

Plaintiff attached to the Complaint invoices to Defendants for its services and storage fees. See id. at 10-12. Neither Defendant has yet paid Plaintiff in any amount for its services or for storage. Id. at 3. Plaintiff ended cargo dumpster rental fees on October 24, 2022, “for health and safety reasons” – presumably because it disposed of perishable food products. Id. at 2-3. Plaintiff continues to store the tractor and trailer. Id. at 3. As of August 25, 2023, total charges to Defendants were $95,416.02; storage charges for the tractor and trailer continue to accrue at $120 per day plus tax. Id.

Plaintiff originally [*3] filed this case in the Lucas County Court of Common Pleas. Id. at 1. Vista removed the case to this Court and then filed a Motion to Dismiss the claims against it. See Docs. 1, 6.

Standard Of Review

On a motion to dismiss under Federal Civil Rule 12(b)(2), the plaintiff bears the burden of establishing personal jurisdiction. Walker v. Concoby, 79 F. Supp. 2d 827, 829 (N.D. Ohio 1999). When personal jurisdiction is challenged under Federal Civil Rule 12(b)(2) and no evidentiary hearing has been held, the Court “will not consider facts proffered by the defendant that conflict with those offered by the plaintiff, and will construe the facts in a light most favorable to the nonmoving party.” Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002). However, “[o]nce the defense has been raised, then the plaintiff must sustain [his] burden of proof in establishing jurisdictional facts through sworn affidavits and competent evidence.” Hammons v. Lasik Vision Inst., LLC., 2006 U.S. Dist. LEXIS 63921, 2006 WL 2583162, at *3 (W.D. Tenn.) A prima facie showing of personal jurisdiction is all that is required. See Bird, 289 F.3d at 871; see also Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir. 1991).

Discussion

In its Complaint, Plaintiff brought one claim against Vista for unjust enrichment related to “[s]ervices attributable to the cargo” in the vehicle crash. (Doc. 1-2, at 4-5). Plaintiff alleges it moved and preserved Vista’s property — the trailer cargo — and Vista failed to pay Plaintiff for those services. Id. at 5. Plaintiff does [*4] not provide a specific dollar amount it asserts Vista owes it but states the value of its services to Vista is “in no event less than $25,000.” Id. Also potentially relevant to Vista is Plaintiff’s claim for a declaratory judgment that “because the accident involved the discharge of pollutants on or around the roadway, and the accident caused the loss of use of an important public roadway by the motoring public, any monies due and owing to Bubba’s Towing reduced to a final judgment in this action constitute a ‘public liability’ as that term is used in [a] MCS-90 endorsement.” Id. at 6. All other claims are against Big Eagle alone.

Vista argues in its Motion to Dismiss that Plaintiff does not and cannot establish personal jurisdiction over Vista. See Doc. 6-1. District courts sitting in diversity apply the law of the forum state — in this case, Ohio — to determine whether it has personal jurisdiction over a non-resident defendant, such as Vista. Theunissen, 935 F.2d at 1459. For this Court to have personal jurisdiction over Vista, (1) Ohio’s long-arm statute must apply to Vista and (2) exercise of personal jurisdiction over Vista must “comport[] with constitutional due process” requirements. Air Products and Controls, Inc. v. Safetech Intern., Inc., 503 F.3d 544, 550 (6th Cir. 2007). This Court finds [*5] it does not have personal jurisdiction over Vista.

Ohio Long-Arm Statute

“[U]nder Ohio law, a court may exercise personal jurisdiction over a non-resident defendant only if specific jurisdiction can be found under one of the enumerated bases in Ohio’s long-arm statute.” Conn v. Zakharov, 667 F.3d 705, 718 (6th Cir. 2012). Those bases are:

(1) Transacting any business in this state;

(2) Contracting to supply services or goods in this state;

(3) Causing tortious injury by an act or omission in this state;

(4) Causing tortious injury in this state by an act or omission outside this state if the person regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;

(5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when the person might reasonably have expected such person to use, consume, or be affected by the goods in this state, provided that that person also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this [*6] state;

(6) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when the person might reasonably have expected that some person would be injured thereby in this state;

(7) Causing tortious injury to any person by a criminal act, any element of which takes place in this state, which the person commits or in the commission of which the person is guilty of complicity;

(8) Having an interest in, using, or possessing real property in this state;

(9) Contracting to insure any person, property, or risk located within this state at the time of contracting.

Ohio Rev. Code § 2307.382(A). As of April 2021, the long-arm statute also provides that:

In addition to a court’s exercise of personal jurisdiction under division (A) of this section, a court may exercise personal jurisdiction over a person on any basis consistent with the Ohio Constitution and the United States Constitution.

Ohio Rev. Code § 2307.382(C). The Ohio Supreme Court has not yet interpreted this provision. Some federal district courts in Ohio have held the long-arm statute “now extends personal jurisdiction to the fullest extent that the U.S. Constitution permits.” AmaTech Grp. Ltd. v. Fed. Card Servs., LLC, 2022 U.S. Dist. LEXIS 1655, 2022 WL 44674, at *5 (S.D. Ohio) (citing C.T. v. Red Roof Inns Inc., 2021 U.S. Dist. LEXIS 132392, 2021 WL 2942483, at *10 (S.D. Ohio); Smith v. Swaffer, 566 F. Supp. 3d 791, 806 (N.D. Ohio 2021); and NOCO Co. v. Shenzhen Valuelink E-Com. Co., 550 F. Supp. 3d 488, 493 (N.D. Ohio 2021)). Another federal district court [*7] in the state held the new provision “merely [] allow[s] for ‘general jurisdiction’ over non-resident defendants in appropriate circumstances” rather than specific jurisdiction. AmaTech, 2022 U.S. Dist. LEXIS 1655, 2022 WL 44674, at *5 (citing Premier Prop. Sales Ltd. v. Gospel Ministries Int’l, Inc., 539 F. Supp. 3d 822, 827 n.2 (S.D. Ohio 2021)).

The parties to this case do not mention this new provision of the long-arm statute. They instead focus primarily on specific jurisdiction under subsections (1) and (2). Vista argues the Complaint “fails to allege that Vista ‘transacted business’ in Ohio as required . . . To ‘transact business’ in the State, there must be a showing of a substantial connection with the State, creating an obligation there.” (Doc. 6-1, at 5). Vista primarily relies upon Hildebrand v. Steck Manufacturing, Inc. 279 F.3d 1351 (6th Cir. 2002). The Hildebrand court held there is no personal jurisdiction under the Ohio long-arm statute on the basis of transacting business unless “negotiations [] ultimately lead to a ‘substantial connection’ with the forum, creating an affirmative obligation there.” 279 F.3d at 1354. One-sided solicitation or negotiation attempts within Ohio do not confer personal jurisdiction, particularly when the party derives no revenue from the state. Id. at 1355. Vista argues that on the face of the Complaint, Plaintiff alleges only that Vista’s property “happened to be fortuitously and randomly located in the state [*8] during transit.” (Doc. 6-1, at 5).

Plaintiff argues that because “Vista’s product was literally scattered on the Ohio Turnpike . . . and the work performed related to Vista’s goods was also performed in Ohio”, Vista has “transact[ed] business and/or suppl[ied] goods within Ohio” to a degree sufficient to confer personal jurisdiction. (Doc. 7, at 6). Plaintiff does not allege the goods on the trailer were ultimately destined for Ohio. According to the Complaint, Plaintiff was contacted by law enforcement to clear the road, not by Vista. Most Ohio courts consider a defendant subject to personal jurisdiction in the state under the transacting business provision where that defendant initiated the business dealings, not the plaintiff. See, e.g., State ex rel. Atty. Gen. v. Grand Tobacco, 171 Ohio App. 3d 551, 558, 2007-Ohio-418, 871 N.E.2d 1255 (Ohio Ct. App. 2007) (“a person ‘transacts business’ in Ohio if the business operations set in motion by the defendant have a ‘realistic impact’ on Ohio commerce” (emphasis added)); Kentucky Oaks Mall Co. v. Mitchell’s Formal Wear, Inc., 53 Ohio St. 3d 73, 73-74, 559 N.E.2d 477 (1990) (“[a] commercial nonresident lessee, for purposes of personal jurisdiction, is ‘transacting any business’ . . . where the lessee negotiates”). While the Complaint alleges Plaintiff seeks compensation for services provided to Vista in Ohio, Plaintiff provided these services unilaterally. [*9] Plaintiff alleges no kind of mutual contractual obligation between itself and Vista which might create an affirmative obligation on Vista’s part. This Court finds the Complaint does not allege facts giving rise to personal jurisdiction under Ohio’s long-arm statute.

Plaintiff alternatively argues Vista has other business dealings with Ohio which meet the long-arm statute requirements. (Doc. 7, at 3). Plaintiff cites Vista’s website, which “touts its reach is ‘domestic and global,'” and argues “[s]uch a range definitely includes Ohio.” Id. Plaintiff also cites a case in this district in which Vista was a defendant subject to personal jurisdiction in Ohio (Champion Foodservice, LLC v. Vista Food Exchange, Inc., 2013 U.S. Dist. LEXIS 111196, 2013 WL 4046449 (N.D. Ohio)) and a case in the Southern District of Ohio in which Vista was a plaintiff (Fresh Logistics, LLC v. Flatow-Riley, Inc., No. 1:07-CV-770 (S.D. Ohio April 4, 2011)). For reasons explained below, these arguments do not meet constitutional requirements for personal jurisdiction.

Constitutional Due Process

Exercise of personal jurisdiction over a party must also comport with constitutional due process requirements, i.e., the nonresident defendant must have “sufficient minimum contacts with the forum state so that finding personal jurisdiction does not offend traditional notions of fair play and substantial justice.” Zakharov, 667 F.3d at 712.¹ Particularly [*10] because there is legal uncertainty regarding interpretation of Ohio’s recent amendment of the long-arm statute, under which it is possible personal jurisdiction extends to the limits of constitutional due process, this Court examines the constitutional issues in this case as well.

The Sixth Circuit uses a three-part test to determine whether exercise of specific personal jurisdiction is proper:

First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.

Means v. United States Conf. of Cath. Bishops, 836 F.3d 643, 649 (6th Cir. 2016). Plaintiff argues shipment of Vista’s goods “caused a consequence” in Ohio. (Doc. 7, at 7). But the purposeful availment requirement is met only when “the defendant’s contacts with the forum state ‘proximately result from actions by the defendant himself that create a “substantial connection” with the forum State.'” CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1263 (6th Cir. 1996) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)). A commercial defendant’s efforts must be [*11] “purposefully directed toward the residents of [the forum] State.” Id. at 1264. In the Sixth Circuit, that means the defendant must have done “more than merely place a product into the stream of commerce.” Parker v. Winwood, 938 F.3d 833, 840 (6th Cir. 2019). The stream of commerce “plus” approach to personal jurisdiction means “the placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cnty., 480 U.S. 102, 112, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987) (O’Connor, J., plurality); see also Bridgeport Music, Inc. v. Still N The Water Pub., 327 F.3d 472, 480 (6th Cir. 2003).

These requirements create problems for several of Plaintiff’s arguments. As the Complaint sets out, Vista contracted with co-defendant Big Eagle Transport, Inc., a Michigan corporation, to carry cargo owned by Vista through Ohio, not to Ohio. (Doc. 1-2, at 1-2). Vista’s connections with Ohio come through Plaintiff’s services after the crash — and these services were initiated by law enforcement and Plaintiff (Doc. 1-2, at 2), not “actions by the defendant [it]self.” CompuServe, 89 F.3d at 1263. Vista did not own or operate the truck or trailer which crashed on the Turnpike. (Doc. 1-2, at 1-2). By contracting with another out-of-state entity to carry its goods through Ohio to another destination, Vista did not do more than place a product into the stream of commerce, [*12] and it did not do enough to meet the stream of commerce “plus” requirement.

Plaintiff’s assertions of Vista’s nation-and world-wide reach and its prior legal activity in this state likewise do not meet constitutional requirements. The website screenshots Plaintiff cites in and attaches to its opposition brief do not mention Ohio. See Doc. 7-1, at 3-7. Advertisement for national or global reach alone does not meet the Sixth Circuit’s stream of commerce “plus” rule — it is “not an act of the defendant purposefully directed toward the forum State.” Asahi, 480 U.S. at 112. Actions sufficient to meet this requirement include, “for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State.” Id. Plaintiff alleges no such actions. That a national or international range “includes Ohio” does not mean there is action directed toward Ohio.

Even if Plaintiff had — or even if Plaintiff amended its Complaint to include such allegations — Plaintiff would still not be able to show the second prong [*13] of the constitutional personal jurisdiction test: “the cause of action must arise from the defendant’s activities there.” Means, 836 F.3d at 643. The business activities which Vista advertises in the website screenshots Plaintiff cites include “trading (sourcing, purchasing, delivering) perishable products . . . [between] packers, food processors, retailers, distributors, and food service organizations to an integrated international market.” (Doc. 7-1, at 7). Plaintiff’s case arises from its unilateral provision of services, which included clearing and storing Vista’s goods, after another defendant’s vehicle crashed in Ohio. (Doc. 1-2, at 1-2). Vista’s activities relevant to this case, as alleged in the Complaint, include only contracting with a Michigan company. (Doc. 1-2, at 1). Plaintiff alleges no activities actually taken by Vista in Ohio under which its case against Vista arises. This contrasts with its case against Big Eagle, which actually operated the vehicle on Ohio’s roads.

Plaintiff’s allegations of Vista’s legal activity in Ohio meet a similar barrier. Plaintiff cites Champion Foodservice, LLC v. Vista Food Exchange, Inc., in which Vista was subject to personal jurisdiction in this district. 2013 U.S. Dist. LEXIS 111196, 2013 WL 4046449 (N.D. Ohio).² But “the cause of action must arise from the defendant’s [*14] activities” in the forum state. Means, 836 F.3d at 643. In that case, it is possible the plaintiff had a cause of action against Vista which arose directly from Vista’s activities in Ohio. That does not necessarily mean this requirement for specific personal jurisdiction is met in every case against Vista in Ohio.

Finally, this Court finds that the nature of Plaintiff’s alleged business services to Vista — that is, that they were undertaken without Vista’s prior agreement or knowledge, under circumstances where no agent or representative of Vista had contact or presence — runs afoul of the third and final requirement for constitutionally acceptable exercise of personal jurisdiction. While Vista’s goods’ presence on the road in Ohio after the truck on which they were packed crashed may have “caused a consequence” in Ohio, there is not a substantial enough connection between Vista and Ohio to make this court’s exercise of jurisdiction reasonable. See Means, 836 F.3d at 649. Plaintiff characterizes the issue of personal jurisdiction as a “trivial technicality.” (Doc. 7, at 9). It is not. Vista correctly states this requirement “recognizes and protects an individual liberty interest.” (Doc. 8, at 5). Personal jurisdiction [*15] is a constitutional matter, and its requirements are concerned with upholding “traditional notions of fair play and substantial justice.” Int’l Shoe, 326 U.S. at 316.

Though Plaintiff argues this Court should allow it to amend its Complaint before granting Vista’s Motion to Dismiss (Doc. 7, at 8), the facts Plaintiff states it would add — information from Vista’s website and from former court cases in Ohio — would not support a prima facie showing of jurisdiction, as explained above. While leave to amend should be granted freely when justice requires, district courts do not abuse their discretion in denying such leave when “conceivable amendments [are] likely to be fruitless.” Islamic Ctr. of Nashville v. Tennessee, 872 F.3d 377, 387 (6th Cir. 2017). Because Plaintiff’s proposed changes would not cure the defect, this Court grants Vista’s Motion to Dismiss without allowing Plaintiff leave to amend.

Conclusion

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendant Vista Food Exchange, Inc.’s Motion to Dismiss (Doc. 6) be, and the same hereby is, GRANTED; and it is

FURTHER ORDERED that Defendant Vista Food Exchange, Inc.’s Request for a Hearing (Doc. 8) be, and the same hereby is, DENIED AS MOOT.

/s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE

Dated: May 29, 2024

End of Document

¹Plaintiff uses the facts it cites in its argument for specific personal jurisdiction to also argue for general personal jurisdiction, and frequently conflates the requirements of the two. See Doc. 7, at 7. “General jurisdiction exists over a defendant when his contacts with the forum state are of such a ‘continuous and systematic’ nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.” Third Nat’l Bank in Nashville v. WEDGE Grp., Inc., 882 F.2d 1087, 1089 (6th Cir. 1989). “The paradigm all-purpose forums for general jurisdiction are a corporation’s place of incorporation and principal place of business.” Daimler AG v. Bauman, 571 U.S. 117, 118, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014). A commercial defendant’s “affiliations with the State [must be] so ‘continuous and systematic’ as to render [it] essentially at home in the forum State” in order for it to be subject to general personal jurisdiction in that state. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 317, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). The Complaint alleges and the removal notice confirms Vista is incorporated and maintains its principal place of business in New York. See Doc. 1. While Plaintiff’s opposition brief alleges Vista has done some business in Ohio, it also states “Vista said it has no offices, no employees, no telephone numbers, no real property owned or leased and no bank accounts located in the State of Ohio.” (Doc. 7, at 7). While Plaintiff is correct none of these things are required to conduct business in Ohio, their absence indicates Vista’s operations in Ohio are not “continuous and systematic” enough to make it subject to general jurisdiction here.

²Plaintiff also cites Fresh Logistics, LLC v. Flatow-Riley, Inc., a case in which Vista was a plaintiff. (Doc. 7, at 3-4 (citing No. 1:08-CV-770 (S.D. Ohio April 4, 2011)). Plaintiffs choose where they file their lawsuits and therefore implicitly consent to that forum’s jurisdiction. See, e.g., Adam v. Saenger, 303 U.S. 59, 67-68, 58 S. Ct. 454, 82 L. Ed. 649 (1938) (“The plaintiff having, by his voluntary act in demanding justice from the defendant, submitted himself to the jurisdiction of the court, there is nothing arbitrary or unreasonable in treating him as being there for all purposes for which justice to the defendant requires his presence.”). Vista’s presence in Ohio as a plaintiff in the Fresh Logistics case therefore has no bearing on whether Ohio may exercise personal jurisdiction over it as an out-of-state defendant.