United States District Court,

1. Maryland.

BERNARD VOGEL, et al., Plaintiffs,

v.

WENDY MORPAS, et al., Defendants.

Civil Action No.: RDB-17-2143

|

11/09/2017

 

Richard D. Bennett, United States District Judge

 

MEMORANDUM OPINION

*1 Plaintiffs Bernard Vogel, individually and as a personal representative of the estate of Jean Vogel, Thomas Vogel, Meredith Vogel, and Audrey Vogel (collectively, “Plaintiffs”) bring this diversity action against Defendants Wendy Morpas (“Morpas”), Navigation, Inc., Navigation Group, Inc. (collectively “Navigation”), and Midlink Logistics, LLC (“Midlink”) (collectively, “Defendants”), stemming from a motor vehicle accident involving Defendant Morpas and Jean Vogel. Currently pending before this Court is Defendant Midlink’s Motion to Dismiss Counts IV, V and VII of the Complaint for lack of personal jurisdiction and for failure to state a claim for relief. (ECF No. 14.) The parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Defendant Midlink’s Motion to Dismiss (ECF No. 14) is GRANTED IN PART and DENIED IN PART. Specifically, it is GRANTED as to the wrongful death action under Michigan law (Count VII) and DENIED as to the survival and wrongful death actions under Maryland law (Counts IV and V).

 

 

BACKGROUND

This Court accepts as true the facts alleged in Plaintiffs’ complaint. See Aziz v. Alcolac, Inc., 658 F. 3d 388, 390 (4th Cir. 2011). Defendant Midlink, a Michigan corporation, brokers shipping contracts for the interstate transportation of goods. (Compl., ECF No. 2 at ¶¶ 7-8.) On or around February 16, 2016, Midlink entered into a “Load Confirmation and Payment Agreement” (the “Agreement”) for Defendant Navigation to provide transportation and/or trucking services for Peterson Farms, a client of Midlink. (Id. at ¶ 29; ECF No. 20-2.) The Agreement provided that Defendant Navigation would transport produce from Hart, Michigan to Philadelphia, Pennsylvania. (Id. at ¶ 29; ECF No. 20-2.) In addition, the Agreement stated that Defendant Navigation would make six intermediate stops between Michigan and Pennsylvania, including two stops in Maryland. (Id. at ¶ 29; ECF No. 20-2.) To execute the job, Defendant Navigation hired Defendant Morpas to drive a large, loaded eighteen-wheeler tractor trailer. (ECF No. 2 at ¶¶ 17, 27.) While Defendant Morpas was driving on Kate Wagner Road in Carroll County, Maryland, he went through a flashing red light at a high rate of speed without stopping or slowing down. (Id.at ¶ 18.) The tractor trailer struck Jean Vogel’s vehicle which had been approaching the intersection with Kate Wagner Road, ultimately causing the vehicle to catch on fire and Jean Vogel’s death.1 (Id. at ¶¶ 17-19.)

 

On July 31, 2017, Plaintiffs filed the instant action in the Circuit Court for Carroll County, Maryland, bringing the following causes of action: survival action under Maryland law against all Defendants for negligence (Counts I, III, IV); survival action under Maryland law against Defendant Navigation for respondent superior liability for the actions of Defendant Morpas (Count II); wrongful death action under Maryland law against all Defendants (Count V); wrongful death action under Illinois law against Defendant Navigation (Count VI); and wrongful death against under Michigan law against Defendant Midlink (Count VII). Defendants removed the case to this Court based on diversity jurisdiction under 28 U.S.C. § 1441. (ECF No. 1.) Currently pending before this Court is Defendant Midlink’s Motion to Dismiss those Counts in which it is named, specifically, Counts IV, V, and VII, for lack of personal jurisdiction and failure to state a claim. (ECF No. 14.)

 

 

STANDARD OF REVIEW

1. Motion to Dismiss Under Rule 12(b)(2)

*2 A motion to dismiss under Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction challenges a court’s authority to exercise its jurisdiction over the moving party. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). The jurisdictional question is “one for the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for jurisdiction by a preponderance of the evidence.” Id.; Sigala v. ABR of VA, Inc., 145 F.Supp.3d 486, 489 (D. Md. 2014). While a court may hold an evidentiary hearing or permit discovery as to the jurisdictional issue, it also may resolve the issue on the basis of the complaint, motion papers, affidavits, and other supporting legal memoranda. Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009); see also Sigala, 145 F.Supp.3d at 489.

 

If a court does not hold an evidentiary hearing or permit discovery, a plaintiff need only make “a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge.” Consulting Eng’rs Corp., 561 F.3d at 276. When considering whether the plaintiff has made the requisite showing, “the court must take all disputed facts and reasonable inferences in favor of the plaintiff.” Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). Notably, “ ‘a threshold prima facie finding that personal jurisdiction is proper does not finally settle the issue; plaintiff must eventually prove the existence of personal jurisdiction by a preponderance of the evidence, either at trial or at a pretrial evidentiary hearing.’ ” New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 n. 5 (4th Cir. 2005) (emphasis in original) (citation omitted).

 

 

1. Motion to Dismiss under Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006); see also Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). The sufficiency of a complaint is assessed by reference to the pleading requirements of Rule 8(a)(2), which provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

 

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 684, 129 S. Ct. 1937, 1949 (2009). Under the plausibility standard, a complaint must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). In reviewing a Rule 12(b)(6) motion, a court “ ‘must accept as true all of the factual allegations contained in the complaint’ ” and must “ ‘draw all reasonable inferences [from those facts] in favor of the plaintiff.’ ” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637

 

F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017).

 

ANALYSIS

1. Maryland has personal jurisdiction over Defendant Midlink

*3 Before a court can exercise personal jurisdiction over a non-resident defendant, a court must determine that (1) the exercise of jurisdiction is authorized under the state’s long-arm statute pursuant to Rule 4(k)(1)(a) of the Federal Rules of Civil Procedure; and (2) the exercise of jurisdiction conforms to the Fourteenth Amendment’s due process requirements. Carefirst, 334 F.3d at 396; Sigala, 145 F.Supp. at 489. Defendant Midlink argues that Plaintiff has not met either prong of the personal jurisdiction analysis.

 

When interpreting the reach of Maryland’s long-arm statute, Md. Code Ann., Cts. & Jud. Proc., § 6-103(b), a federal district court must adhere to the interpretations of the Maryland Court of Appeals. See Tulkoff Food Prod., Inc. v. Martin, No. ELH-17-350, 2017 WL 2909250, at *4 (D. Md. July 7, 2017) (citing Carbone v. Deutsche Bank Nat’l Trust Co., No. RDB-15-1963, 2016 WL 4158534, at *5 (D. Md. Aug. 5, 2016); Snyder v. Hampton Indus., Inc., 521 F. Supp. 130 (D. Md. 1981), aff’d, 758 F.2d 649 (4th Cir. 1985)). To satisfy the long-arm prong of a personal jurisdiction analysis, a plaintiff must specifically identify a provision in the Maryland statute that authorizes jurisdiction. Ottenheimer Publishers, Inc. v. Playmore, Inc., 158 F. Supp. 2d 649, 652 (D. Md. 2001). While it is preferable that a plaintiff identify the statute authorizing jurisdiction in its complaint, the plaintiff alternatively may reference the applicable statute in its response to a defendant’s motion to dismiss. Johansson Corp. v. Bowness Constr. Co., 304 F. Supp. 2d 701, 704 n.1 (D. Md. 2004).

 

Although Maryland courts “have consistently held that the state’s long-arm statute is coextensive with the limits of personal jurisdiction set out by the Due Process Clause of the Constitution,” Carefirst, 334 F.3d at 396, courts must address both prongs of the personal jurisdiction analysis. Metro. Reg’l Info. Sys., Inc. v. American Home Realty Network, Inc., 888 F.Supp.2d 691, 699 (D. Md. 2012); CSR, Ltd. V. Taylor, 411 Md. 457, 475-76 (2009) (explaining that if exercising “jurisdiction in a given case would violate Due Process, [Maryland courts] construe our long-arm statute as not authorizing the exercise of personal jurisdiction over the defendant” (internal citations omitted)). Under the second prong, courts must determine whether the exercise of personal jurisdiction would comport with the due process requirements of the Fourteenth Amendment. For a non-resident defendant, “due process requires only that…a defendant…have certain minimum contacts…such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). A “minimum contacts” determination rests on the number and relationship of a defendant’s contacts to the forum state, as well as whether the present cause of action stems from the defendant’s alleged acts or omissions in the forum state. Id.

 

Thus, a court may exercise two types of personal jurisdiction: “ ‘general’ (sometimes called ‘all-purpose’) jurisdiction and ‘specific’ (sometimes called ‘case-linked’) jurisdiction.” Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773 (2017). General jurisdiction arises when a defendant has continuous and systematic contacts in the forum state. Id. at 1780. On the other hand, specific jurisdiction arises when there is an “affiliation between the forum and the underlying controversy.” Id.; Carefirst, 334 F.3d at 397. Regardless of which jurisdiction is asserted, the general rule is that “the exercise of judicial power is not lawful unless the defendant ‘purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” J. McIntyre Mach., Ltd. V. Nicastro, 564 U.S. 873, 877, 131 S. Ct. 2780, 2785 (2011) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1288 (1958)).

 

 

1. Maryland’s long-arm statute authorizes the exercise of personal jurisdiction

*4 Beginning with the first prong of the personal jurisdiction analysis, Plaintiff relies on two provisions of the Maryland long-arm statute, which state:

(b) A court may exercise personal jurisdiction over a person, who directly or by an agent:

…

(2) Contracts to supply goods, food, services, or manufactured products in the State; [or]…

(4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State[.]

Maryland Long–Arm Statute, Md. Code. Ann., Cts. & Jud. Proc. § 6-103.

 

Beginning with § 6-103(b)(2), Plaintiff argues that Midlink provided services in Maryland when it “entered into a ‘Load Confirmation and Payment Agreement’…with Defendant Navigation and/or Defendant Navigation Group, Inc. to ‘transport various fresh produce . . . from the point of origination’ in Michigan to Pennsylvania, with two intermediate stops in Maryland. (ECF No. 20 at 10.) Midlink, however, argues that it “did not conduct business or provide services in Maryland.” (ECF No. 23 at 1.) Rather, it acted as a broker by connecting Peterson Farms with Defendant Navigation, and it was Navigation that was contracted to supply the goods. (Id. at 1-2); see also Affidavit of Mark Swetz, ECF No. 14-2 at ¶¶ j-k (explaining that once Navigation “accepted the load in Michigan, it became responsible for the load and the manner and means by which it reached its destination” and Midlink did not determine, contract for, or direct that any stops occur in Maryland).

 

Section (b)(2) covers “contracts to supply good and services in Maryland, irrespective of where the contract was negotiated.” Rao v. Era Alaska Airlines, 22 F.Supp.3d 529, 535 (D. Md. 2014) (emphasis in original) (citing A Love of Food I, LLC v. Maoz Vegetarian USA, Inc., 795 F.Supp.2d 365, 370 (D. Md. 2011)). The issue, then, is whether by brokering the Agreement that directed Navigation to make stops in Maryland, Defendant Midlink contracted to supply goods or services in Maryland. When viewing the facts and allegations in the light most favorable to Plaintiff, § (b)(2) is satisfied.2 Defendant Midlink agreed to arrange for the transfer of produce by Defendant Navigation from Michigan to Philadelphia, with two stops in Maryland. Although Defendant Midlink maintains that it was Peterson Farms’ choice to make the stops in Maryland, there can be no dispute that Defendant Midlink brokered the Agreement on behalf of its client, and the Agreement facilitated the stops in Maryland. Thus, Plaintiff has made a prima facie showing that Maryland’s long-arm statute is satisfied, and this Court turns to the due process analysis.

 

 

1. Exercise of personal jurisdiction over Defendant Midlink comports with Due Process

*5 As explained above, due process jurisprudence recognizes two types of personal jurisdiction: specific and general. In its Response to Defendant Midlink’s Motion to Dismiss, Plaintiff only asserts that specific jurisdiction is appropriate. (ECF No. 20 at 13.)3 The United States Court of Appeals for the Fourth Circuit applies a three-part test to determine whether there is specific jurisdiction over a defendant: “(1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs’ claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.” Consulting Engineers, 561 F.3d at 278.

 

Midlink argues that there is no specific jurisdiction because “the only business performed by Midlink in this case was conducted in Michigan when it served as a broker between its Michigan client, Peterson Farms, and Navigation Group, Inc., for Navigation Group, Inc. to transport a load for Peterson Farms consisting of sliced apples. Peterson Farms, not Midlink, determined the load origination, destination, and any stops in between. [Therefore]…the suit did not ‘arise out of or related to Midlink’s contacts with the forum.’ ” (ECF No. 14-1 at 5) (emphasis in original).

 

On the issue of whether this Court can assert specific personal jurisdiction over Defendant Midlink, the United States District Court for the Western District of Virginia case Turner v. Syfan Logistics, Inc., No. 5:15cv81, 2016 WL 1559176 (W.D. Va. Apr. 18, 2016) is instructive. In Turner, the plaintiff brought suit for negligent hiring and retention against the defendant Syfan Logistics, Inc (“Syfan”), an interstate property broker that regularly arranged interstate transport of goods. Id. at *1. At the request of a third party, Syfan hired DD Logistics, Inc. (“DD”) to haul a load of frozen chicken from Tennessee to West Virginia. Id. While driving in Virginia, the DD employee’s tractor trailer truck struck the decedent’s car, killing him. Id. When the plaintiff brought suit in the Western District of Virginia, Syfan moved to dismiss for lack of personal jurisdiction on the grounds that it was a Georgia corporation with its sole place of business in Georgia, it maintained no employees, offices, bank accounts, assets or real property in Virginia, the decision to retain DD occurred in Georgia, and Syfan had no control over the methods, means or details of the transportation. Id. Applying the three part test from Consulting Engineers, the court found that it did have personal jurisdiction over Syfan.

 

Notably in its discussion of the first prong, the court found that Syfan purposefully targeted Virginia when the load confirmation agreement contemplated that to transport goods from Moorefield, West Virginia to Chattanooga, Tennessee, there would necessarily be travel through Virginia. Id. at *4. Therefore, Syfan “purposefully targeted Virginia as a state through which DD would transport the load.” Id. In addition, the court considered that as an interstate trucking broker, Syfan engaged in the business of arranging for interstate shipments regularly and therefore “[i]t [could] come as no surprise to Syfan that litigation in Virginia might ensue when Syfan’s conduct ensured DD would haul a load of frozen chicken across a significant portion of the state.” Id. at *5. The court rejected Syfan’s argument that it was DD who “unilaterally chose to carry the load through Virginia,” given that the load confirmation clearly anticipated this fact. Id. at *6. Further, the court found that “Syfan’s conduct directed at Virginia gave rise to Turner’s cause of action” given that the “accident that killed [the decedent] arose from Syfan’s hiring of DD to haul chicken through Virginia.” Id. at *7.

 

*6 Turning to the first prong of the Consulting Engineers test, “the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State,” on its website Defendant Midlink boasts its nationwide coverage with “an extensive network of reliable carriers to move…truckloads throughout the US.” (ECF No. 20-3.) In addition, it lists the east coast as an area of strength. (Id.) In align with these services, at the request of its client, Defendant Midlink arranged for the transportation of fresh produce from Michigan to Pennsylvania, with two intermediate stops in Maryland. The Agreement that Defendant Midlink brokered, then, obligated Defendant Navigation to travel through Maryland. Thereby, Defendant Midlink purposefully targeted Maryland as a state through which Defendant Navigation would transport the produce, and such transportation through Maryland was a “contemplated future consequence” of Defendant Midlink’s action. See Consulting Engineers, 561 F.3d at 278 (describing one factor for purposeful availment as “whether the performance of contractual duties was to occur within the forum” (citing Peanut Corp. of Am. v. Hollywood Brands, Inc., 696 F.2d 311, 314 (4th Cir. 1982))); see also Burger King, 471 U.S. 462, 478, 105 S. Ct. 2174, 2185 (1985) (explaining that “contemplated future consequences…must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum”).

 

Defendant Midlink maintains that because it “did not determine, contract for, or direct that any stops should occur in the State of Maryland,” see Affidavit of Mark Swetz, ECF No. 14-2 at ¶ k, Maryland does not have personal jurisdiction over it. However, as in Turner, the Agreement anticipated that Defendant Navigation would travel through Maryland, regardless of who chose to make stops in Maryland. Turner, 2016 WL 1559176 at *6. Therefore, Defendant Midlink cannot plausibly claim that it is surprised that as a result of brokering that Agreement, litigation in Maryland might ensue. Accordingly, this Court finds that Defendant Midlink purposefully availed itself of the privilege of conducting activities in Maryland. See Brandi v. Belger Cartage Service, Inc., 842 F.Supp. 1337, 1341-42 (D. Kan. 1994) (finding personal jurisdiction over the defendant, a nationwide transportation brokerage company, in part because the company “should certainly have foreseen the possibility of litigation arising in a state through which it had arranged for the shipment of goods”).

 

As to the second and third prongs of the Consulting Engineerstest, the accident that resulted in Jean Vogel’s death arose from Midlink’s hiring of Navigation to perform the terms of the Agreement. Accordingly, Midlink’s conduct directed at Maryland gave rise to Plaintiff’s causes of actions against it. This Court also finds that the exercise of personal jurisdiction is constitutionally reasonable under the third prong given that Midlink is a nationwide business and the accident occurred in Maryland.4 Accordingly, this Court has personal jurisdiction over Defendant Midlink and Defendant Midlink’s Motion to Dismiss for lack of personal jurisdiction is DENIED.

 

 

1. Failure to state a claim
2. Wrongful death action under Michigan law (Count VII)

Count VII of the Complaint brings a wrongful death action against Defendant Midlink under Michigan law. Defendant Midlink argues that the claim should be dismissed because Maryland, and not Michigan, law applies.5 “A federal court sitting in diversity is required to apply the substantive law of the forum state, including its choice-of-law rules.” Francis v. Allstate Ins. Co., 709 F.3d 362, 369 (4th Cir. 2013) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938); Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496 (1941)). Maryland adheres to the doctrine of lex loci delicti, which applies the law of the state “where the tort or wrong was committed.” Laboratory Corp. of America v. Hood, 395 Md. 608 (2006). The parties dispute whether Maryland law applies as the accident occurred in Maryland, or whether Michigan law applies as Defendant Midlink contracted with Defendant Navigation in Michigan.

 

*7 Under the doctrine of lex loci delicti, Maryland courts “apply the law of the State where the injury—the last event required to constitute the tort—occurred.” Hood, 395 Md. at 615, 911 A.2d at 845. The Fourth Circuit has further clarified that under Maryland’s choice of law rules, the law of the place of injury is “ ‘where the injury was suffered, not where the wrongful act took place.’ ” Baker v. Booz Allen Hamilton, Inc., Nos. 08-1152, 08-2321, 358 Fed. App’x. 476, 480-81 (4th Cir. Dec. 28, 2009) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 511 (4th Cir. 1986) (applying Maryland law)); Dickman v. Banner Life Ins. Co., No. WMN-16-192, 2016 WL 7383869 (D. Md. Dec. 21, 2016).

 

Plaintiff cites Jones v. Prince George’s Cnty., 378 Md. 98 (2003) for the proposition that because, presumably, Defendant Midlink’s investigation into Defendant Navigation occurred in Michigan, Michigan law should apply. In that case, the plaintiff brought a wrongful death action against multiple defendants based on negligent training and supervision. Id. The plaintiff alleged that while the negligent conduct occurred in Maryland, the conduct resulted in a death in Virginia. Id. at 109. Under these facts, the court applied Maryland law given that all of the wrongful acts had occurred in Maryland. Id. However, in a subsequent suit in the same case in this Court, the Fourth Circuit affirmed the district court’s application of Virginia law. Jones v. Prince George’s Cnty. Md., No. 08-1397, 355 Fed. App’x. 724, 729 (4th Cir. 2009). In reaching this conclusion, the Fourth Circuit explained that “even if Maryland would have an interest in applying its own substantive law, Maryland’s choice of law principles compel the application of Virginia law in this case.” Id. Further, three years after the decision in Jones, the Maryland Court of Appeals explicitly explained that the lex loci deliciti rules require that courts “apply the law of the State where the injury—the last event required to constitute the tort—occurred.” Hood, 395 Md. at 615.

 

In this case, the injury necessary to sustain Plaintiff’s claims occurred in Maryland when Defendant Morpas struck Jean Vogel’s vehicle. Therefore, Maryland law and not Michigan law applies to a wrongful death action against Defendant Midlink, and accordingly Count VII of the Complaint is DISMISSED.

 

 

1. Survival and wrongful death actions under Maryland law (Counts IV and V)

Count IV of the Complaint brings a survival action against Defendant Midlink and Count V brings a wrongful death action against all of the Defendants. Although not clear in the Complaint, the parties’ submissions clarify that the actions are based on the theory that Defendant Midlink negligently hired Defendant Navigation. Under Maryland law, “an employer may be liable for negligence in ‘selecting, instructing, or supervising…[and independent] contractor.’ ” Schramm v. Foster, 341 F.Supp.2d 536, 551 (D. Md. 2004) (quoting Rowley v. Mayor and City Council of Baltimore, 305 Md. 456, 462, 505 A.2d 494, 497 (1986)). Specifically:

Th[e] duty to use reasonable care in the selection of carriers includes, at least, the subsidiary duties (1) to check the safety statistics and evaluations of the carriers with whom it contracts available on the SafeStat database maintained by [the Federal Motor Carrier Safety Administration], and (2) to maintain internal records of the persons with whom it contracts to assure that they are not manipulating their business practices in order to avoid unsatisfactory SafeStat ratings.

*8 Id. Defendant Midlink argues that Plaintiff’s Complaint merely recites the elements of a negligent hiring cause of action without making any specific factual allegations as to how Midlink was negligent in hiring Defendant Navigation. In addition, that “[t]here are no factual allegations as to what Midlink knew, when it knew it, and how it acted upon such information and knowledge.” (ECF No. 23 at 5.) In opposition, Plaintiff points to Paragraphs 30 and 31 of the Complaint, which allege:

30. Defendant Navigation and/or Defendant Navigation Group has a long and extensive history of violations of the federal motor carrier safety regulations such as:
31. Failing to preserve drivers’ record of duty status for six months;
32. Failing to conduct post-accident testing;
33. Furnishing false or misleading information on an MCS-150, MCS 150B, or MCS-150C;
34. Operating a commercial motor vehicle not in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated;
35. Unsafe driving;
36. Authoring and/or submitting false and/or inaccurate reports of duty status;
37. Failing to require drivers to prepare record of duty statuses in the form and manner prescribed by law;
38. Failing to have a means of indicating the nature and due date of the various inspection and maintenance operations to be performed;
39. Failing to keep a record of inspection, repairs and maintenance indicating their date and nature;
40. Failing to require drivers to prepare driver vehicle inspection reports;
41. Failing to retain vehicle inspection reports for at least 3 months; and/or
42. Using commercial vehicles which are not periodically inspected.
43. Upon information and belief, a significant number of these violations occurred prior to the collision in this case. Nevertheless, Defendant Midlink selected Defendant Navigation and/or Navigation Group as the carrier to transport the load of its client, Peterson Farms, which significantly increased the risk of harm presented by these carriers to innocent third parties such as Jean. Upon information and belief, Defendant Midlink failed to properly investigate or completely ignored Defendant Navigation’s and/or Defendant Navigation Group’s extensive history of violations of the federal motor carrier safety regulations.

(ECF No. 2 at ¶¶ 30-31.)

 

Accepting as true the facts alleged in Paragraphs 30 and 31, Plaintiff’s survival and wrongful death actions against Defendant Midlink survive a motion to dismiss. Plaintiff alleges at least twelve Federal Motor Carrier Safety Administration Regulation violations by Navigation. Defendant Midlink’s insistence that Plaintiff needed to allege what Midlink actually knew misconstrues the duty of reasonable care articulated by this Court in Schramm. Plaintiff has plausibly alleged that given the list of Navigation’s violations, Defendant Midlink failed to use reasonable care by selecting Navigation, maintaining Navigation in its stable of carriers, failing to check the safety statistics and evaluations of Navigation, and/or ignoring or failing to appreciate the significance of these violations. (ECF No. 2 at ¶ 48.) Therefore, Defendant Midlink’s Motion to Dismiss Count IV of the Complaint and Count V as alleged against Midlink is DENIED.

 

 

CONCLUSION

For the reasons stated above, Defendant Midlink’s Motion to Dismiss (ECF No. 14) is GRANTED IN PART and DENIED IN PART. Specifically, it is GRANTED as to the wrongful death action under Michigan law (Count VII) and DENIED as to the survival and wrongful death actions under Maryland law (Counts IV and V).

 

*9 A separate Order follows.

 

 

Dated: November 9, 2017

______/s/__________________

 

 

Richard D. Bennett

United States District Judge

All Citations

Slip Copy, 2017 WL 5187766

 

 

Footnotes

1

On July 25, 2017, Morpas was found guilty of criminal negligent manslaughter by vehicle and three related traffic citations. Criminal Case No. 06-K-16-047627 (Cir. Ct. of Md. for Carroll County); see http://casesearch.courts.state.md.us/casesearch/inquiryDetail.jis?caseId=06K16047627&loc=61&detailLoc =K.

2

Plaintiff also argues that C.J. § 6-103(b)(4) applies “because [Midlink’s] actions caused tortious injury in Maryland while deriving substantial revenue from its brokerage of shipping contracts requiring deliveries in [Maryland].” (ECF No. 20 at 10.) Because this Court finds that § (b)(2) is satisfied, it does not reach this argument.

3

 

This Court notes that there is no basis to conclude that there is general jurisdiction or that Defendant Midlink’s contacts with Maryland are “so ‘continuous and systematic’ as to render [it] essentially at home” in Maryland. Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 2851 (2011)).

4

The United States Supreme Court has directed courts to consider several factors when determining whether the exercise of personal jurisdiction is constitutionally reasonable, including: “the burden on the defendant, the interests of the forum State,…the plaintiff’s interest in obtaining relief[, and] ‘the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies.’ ” Asahi Metal Indus. Co., Ltd. v. Superior Court of California, Solano Cnty., 480 U.S. 102, 113, 107 S. Ct. 1026, 1033 (1987) (quoting World-Wide Volkswagen, 444 U.S. 286, 292, 100 S. Ct. 559, 564 (1980)).

5

At the outset, this Court notes that Plaintiff’s Complaint brings two wrongful death actions against Defendant Midlink, one under Maryland law (Count V) and one under Michigan law (Count VII). In both states, a wrongful death action is an action against a person whose wrongful act caused the death of another. Md. Code Ann., Cts. & Jud. Proc. § 3-902(a); Mich. Comp. Laws Ann. § 600.2922(1).

United States District Court,

1. Colorado.

Franklyn A. JENKINS, Plaintiff,

v.

DUFFY CRANE AND HAULING, INC., a Colorado corporation, Duffy Holdings, LLC, a Colorado limited liability company, Duffy Crane, Inc., a Colorado corporation, and Immedia, Inc., a Minnesota corporation, Defendants.

Civil Action No. 13–cv–00327–CMA–KLM

|

Signed 10/27/2017

Attorneys and Law Firms

Neil A. Hillyard, Tomizan Hillyard & Clor, LLP, Greenwood Village, CO, B.T. Edmonds, Jr., Edmonds Law Firm, Atlanta, GA, William Kvas, Hunegs, LeNeave & Kvas, P.A., Wayzata, MN, Michael Lee Nimmo, Wahlberg Woodruff Nimmo & Sloane, LLP, Denver, CO, for Plaintiff.

Amanda W. DeWick, Higgins Hopkins McLain & Roswell, LLC, Arron Burt Nesbitt, Linda Jane Knight, Wilson Elser Moskowitz Edelman & Dicker, LLP, Jacob Matthew Vos, Taylor Anderson, LLP, Kevin J. Kuhn, Wheeler Trigg O’Donnell, LLP, Denver, CO, for Defendants.

 

 

ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION AND VACATING DOC. # 180, PREVIOUS ORDER GRANTING DEFENDANT IMMEDIA’S MOTION FOR SUMMARY JUDGMENT

CHRISTINE M. ARGUELLO, United States District Judge

*1 This matter is before the Court on Plaintiff’s Motion for Reconsideration (Doc. # 260) of the Court’s previous Order Granting Defendant Immedia’s Motion for Summary Judgment (Doc. # 180). Because the Court inadvertently did not consider an applicable statutory provision, Plaintiff’s Motion for Reconsideration is granted.

 

 

1. BACKGROUND

This case arises from injuries Plaintiff Franklyn A. Jenkins sustained on February 12, 2010, when he was unloading a heavy printing press from his truck. Plaintiff is an experienced commercial truck driver and was hired to transport part of the press from Colorado to Minnesota.

 

Defendant Immedia, Inc. (“Defendant Immedia”) purchased the large printing press from a seller in Colorado in late 2009. Defendant Duffy Crane and Hauling, Inc. (“Defendant Duffy”) loaded the equipment onto Plaintiff’s truck at the seller’s facility on February 10, 2010. Plaintiff then drove the load from Colorado to Minnesota, stopping twice to add additional securement devices to the load. When Plaintiff arrived at Defendant Immedia’s Minnesota facility on February 12, 2010, the third party whom Defendant Immedia had hired to unload the truck directed Plaintiff to remove the securement devices from the load. As Plaintiff released the straps and chains, a steel cart rolled off the truck’s top deck and injured Plaintiff. See (Doc. # 134.)

 

In 2011, Plaintiff filed suit in Minnesota state court against Defendant Immedia, Defendant Duffy, and other defendants, alleging negligence and negligence per se. The state trial court dismissed Defendant Duffy for lack of personal jurisdiction. The state trial court later denied Defendant Immedia’s motion for summary judgment because it determined Defendant Immedia, as the owner of the property being unloaded from Plaintiff’s truck, owed Plaintiff the duty to use reasonable care for Plaintiff’s safety. (Doc. # 103–1.)

 

Plaintiff filed suit in this Court against Defendant Duffy on February 6, 2013. (Doc. # 1.) On June 19, 2015, Plaintiff moved to join Defendant Immedia as a defendant. (Doc. # 94.) On October 27, 2015, United States Magistrate Judge Kristen L. Mix granted this motion because she concluded joinder was proper pursuant to Fed. R. Civ. P. 20. (Doc. # 119.) Relevant here, Defendant Duffy had attempted to argue that Plaintiff’s claims against Defendant Immedia were barred by the statute of limitations and collateral estoppel. (Id.) Magistrate Judge Mix stated that Defendant Immedia, not Defendant Duffy, would be the proper defendant to raise these affirmative defenses. (Id.) Plaintiff filed his Amended Complaint, naming Defendant Immedia as an additional defendant, on November 19, 2015. (Doc. # 120.)

 

Defendant Immedia moved for summary judgment on all of Plaintiff’s claims against it on August 11, 2016. (Doc. # 161.) Defendant made four arguments: (1) Plaintiff’s claims were barred by the applicable statute of limitations; (2) Plaintiff was engaging in improper forum shopping, in violation of the Colorado River doctrine; (3) Plaintiff’s claims were precluded by collateral estoppel; and (4) Plaintiff was solely responsible for securing the load on his truck as a matter of law. (Id.)

 

*2 The Court granted Defendant Immedia’s Motion for Summary Judgment on October 17, 2016, concluding that Plaintiff’s claims against Defendant Immedia were barred by the applicable statute of limitations. (Doc. # 180.) The Court first addressed the parties’ disagreement regarding which statute of limitations Colorado law would apply to the case. (Id.) It agreed with Defendant Immedia that Colo. Rev. Stat. § 13–80–101(1)(k)1 was the appropriate statute of limitations. (Id.) Because Minnesota (where the action accrued) would apply a six-year statute of limitations—longer than Colorado’s three-year statute of limitations—section 13–80–101(1)(k) applied and required that the action be brought within three years of its accrual. (Id.)

 

The Court rejected Plaintiff’s argument that Colorado’s borrowing statute, Colo. Rev. Stat. § 13–8–1102, required that Minnesota’s six-year statute of limitation apply. (Doc. # 180.) The Court disagreed with Plaintiff’s reliance on Jenkins v. Panama Canal R.R., 208 P.3d 238 (Colo. 2009), and determined that the borrowing statute was inapplicable where a party seeks to “borrow” a longer statute of limitation from another jurisdiction. (Id.) The Court also rejected Plaintiff’s assertions that his claim against Defendant Immedia did not accrue until 2014 and that the doctrine of equitable tolling should save his claim. (Id.) For these reasons, the Court dismissed Plaintiff’s claims against Defendant Immedia. (Id.)

 

On September 18, 2017, Plaintiff filed the instant Motion for Reconsideration. (Doc. # 260.) Defendant Immedia opposed the motion on October 9, 2017. (Doc. # 266.) Plaintiff replied on October 19, 2017. (Doc. # 267.)

 

 

1. DISCUSSION
2. MOTION FOR RECONSIDERATION

The Federal Rules of Civil Procedure do not explicitly authorize a motion for reconsideration. However, the Rules allow a litigant who was subject to an adverse judgment to file a motion to change the judgment pursuant to Rule 59(e) or a motion seeking relief from the judgment pursuant to Rule 60(b). Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). In this case, Plaintiff’s Motion for Reconsideration was not served within ten days of the Court’s previous order. Therefore, Plaintiff’s motion must be construed as one pursuant to Rule 60(b). Id.

 

Relief under Rule 60(b) “is extraordinary and may only be granted in exceptional circumstances.” Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., Inc., 909 F.2d 1437, 1440 (10th Cir. 1990). A litigant shows exceptional circumstances by satisfying one or more of Rule 60(b)’s six grounds for relief from judgment. Van Skiver, 952 F.2d at 1243–44. These six grounds are:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

*3 (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b) (emphasis added).

 

Plaintiff argues that the Court’s order granting summary judgment (Doc. # 180) “overlooked the key Colorado statute,” which it asserts is Colo. Rev. Stat. § 13–82–104(1)(a)3. (Doc. # 260.) Plaintiff’s counsel concedes that “[t]his error was, to be sure, one in which [Plaintiff’s counsel] shares responsibility.” (Id.) Plaintiff also concedes that Defendant Immedia’s summary judgment motion (Doc. # 161) cited this allegedly “key” statute. (Doc. # 260.) But despite Defendant Immedia’s brief mention of section 13–82–104(1)(a) in a footnote of its motion for summary judgment, Plaintiff did not address this statute in his response. See (Doc. # 174.) Plaintiff instead relied on Colorado’s borrowing statute, section 13–80–110. See (id.) The Court granted Defendant Immedia’s request for summary judgment because it concluded that the borrowing statute was inapplicable. (Doc. # 180.)

 

In ruling on Defendant Immedia’s motion for summary judgment (id.), the Court inadvertently overlooked section 13–82–104(1)(a), the provision that Plaintiff now asserts is the “the Colorado statute most directly supportive” of his argument that Minnesota’s six-year statute of limitations controls this case, see (Doc. # 260.) Section 13–82–104(1)(a) was mentioned only once in a footnote in Defendant Immedia’s motion to dismiss, see (Doc. # 161)—and the Court inadvertently overlooked it. Accordingly, the Court reconsiders its October 17, 2016, Order Granting Defendant Immedia’s Motion for Summary Judgment (Doc. # 180).

 

 

1. SECTION 13–82–104(1)(A)

Section 13–82–104(1)(a), part of Colorado’s enactment of the Uniform Conflict of Laws–Limitations Act, Colo. Rev. Stat. §§ 13–82–101–107, states that “if a claim is substantively based…[u]pon the law of one other state, the limitation period of that state applies.”

 

Plaintiff argues that because Minnesota substantive law applies to its claims against Defendant Immedia, section 13–82–104(1)(a) “makes clear” that Minnesota’s six-year limitations period applies. (Doc. # 260.) This statute, according to the Plaintiff, “must be the starting point” and the end point for analyzing which state’s statute of limitations controls. (Id.) Plaintiff asserts that “there is no conflict between section 13–82–104(1)(a) and 13–8–101(1)(k)” and even if there was a conflict, “that conflict would need to be resolved in favor of the longer six-year period.”

 

Defendant maintains that section 13–8–101(1)(k), which states that “all actions accruing outside this state if the limitation of actions [of the other jurisdiction] is greater than that of this state” must be brought within three years, controls. (Doc. # 161.) And because Minnesota’s statute of limitations (six years) is longer than Colorado’s statute (three years), Defendant argues that section 13–8–101(1)(k) requires the application of the provision’s three-year limitation. (Id.) Defendant contends that there is no conflict between section 13–8–101(1)(k) and section 13–82–104(1)(a), but “[e]ven if there is a conflict between the two statutes, [section 13–8–101(1)(k)] prevails because it is the more recently enacted statute.” (Doc. # 266.)

 

 

1. Principles of Statutory Interpretation

*4 When interpreting statutes, the Court’s primary task is to give effect of the General Assembly’s intent. Reg’l Transp. Dist. v. Voss, 890 P.2d 663, 667 (Colo. 1995). When commonly accepted meanings of a statute’s plain language do not clarify legislative intent, the Court may “look to a statute’s legislative history.” For example, legislative history may be useful “when a statute’s language is ambiguous” or “when attempting to harmonize two seemingly conflicting statutes.” Jenkins, 208 P.3d at 241.

 

The Court finds that neither section 13–82–104(1)(a) nor section 13–8–101(1)(k) contains ambiguous language. They are, however, seemingly in conflict with one another. Because the statutes are not ambiguous and cannot be harmonized, the Court turns to the statutory construction rules for irreconcilable statutes. See id.

 

The General Assembly has established two rules for deciding which of two irreconcilable statutes control. Id. First, the specific provision prevails over the general provision. Colo. Rev. Stat. § 2–4–205. This rule applies

unless the general statute was enacted more recently than the specific statute, and the legislature manifestly intends that the later-enacted general statute prevail over the earlier-enacted specific statute. If these conditions are met, the general statute prevails. However, without the General Assembly’s manifest intent, a more recent general statute will not repeal an existing specific statute.

Jenkins, 208 P.3d at 241–42 (internal citations omitted).

 

Second, if specificity does not resolve the conflict, the statute with the more recent effective date controls. Colo. Rev. Stat. § 2–4–206. The more recent statute prevails “even if the General Assembly did not clearly intend it to supplant an existing statute. This is because [the Court] assume[s] the General Assembly is aware of its enactments, and thus [the Court] conclude[s] that by passing an irreconcilable statute at a later date the legislature intended to alter the prior statute.” Jenkins, 208 P.3d at 242 (citing City of Florence v. Pepper, 145 P.3d 654, 657 (Colo. 2006)). Finally, if neither of these two rules resolve a conflict between two different statutes of limitations, the Court turns to a third rule of construction “supported by… case law and public policy; the statute providing the longer limitations period prevails.” Reg’l Transp. Dist., 890 P.2d at 668.

 

 

2. Application

Applying the first rule of that analysis, the Court finds that section 13–82–104(1)(a) is the more specific of the conflicting provisions and therefore concludes that it controls. Section 13–82–104(1)(a) is specifically intended to resolve situations like instant matter: “if a claim is substantively based…[u]pon the law of one other state, the limitation period of that state applies.” It was adopted as part of a statutory scheme specifically addressing conflict of laws. See Colo. Rev. Stat. § 13–82–101. By contrast, section 13–8–101(1)(k) is part of a statute explicitly titled “General limitation of actions– three years.” (Emphasis added.)

 

As explained above, the first rule for resolving statutory conflicts provides that a general statute prevails over the specific statute if “the general statute was enacted more recently than the specific statute, and the legislature manifestly intends that the later-enacted general statute prevail over the earlier enacted specific statute.” Jenkins, 208 P.3d at 241–42 (internal citations omitted). To be clear, “the General Assembly’s manifest intent” is required for the more general statute to apply. Id. Here, the general statute, section 13–8–101(1)(k), was enacted more recently than the specific statute, section 13–82–104(1)(a). However, Defendant Immedia does not suggest, nor has the Court found, any evidence suggesting the General Assembly manifestly intended the general section 13–8–101(1)(k) to repeal the more specific section 13–82–104(1)(a).

 

*5 Defendant Immedia’s argument that Jenkins, 208 P.3d 238, leads to the contrary conclusion fails to persuade the Court. See (Doc. # 266.) In Jenkins, the Colorado Supreme Court considered different questions. Jenkins did not involve either of the sections here; rather, the Supreme Court considered section 13–80–110 and section 13–82–104(2). Jenkins, 208 P.3d at 241. Moreover, the Jenkins plaintiff was not arguing that another jurisdiction’s longer limitations period applied. Id. at 240. He instead argued that Colorado’s longer limitations period applied, even though the injury occurred in Panama. Id. Jenkins is easily distinguished from this case.

 

For these reasons, the Court concludes that section 13–82–104(1)(a) is more specific and therefore applies. Because the conflict is resolved at specificity, the Court does not reach the second rule concerning recency.

 

Pursuant to section 13–82–104(1)(a), because Plaintiff’s claim against Defendant Immedia is based on Minnesota’s substantive law, the six-year limitations period of that state applies. Plaintiff’s claim against Defendant Immedia is not barred by any statute of limitations. Accordingly, the Court reconsiders its previous Order Granting Defendant Immedia’s Motion for Summary Judgment (Doc. # 180) and concludes that summary judgment is not warranted.

 

 

III. CONCLUSION

For the foregoing reasons, it is hereby:

1. ORDERED that Plaintiff’s Motion for Reconsideration (Doc. # 260) of the Court’s previous Order Granting Defendant Immedia’s Motion for Summary Judgment (Doc. # 180) is GRANTED. It is FURTHER ORDERED that
2. This Court’s Order Granting Defendant Immedia’s Motion for Summary Judgment (Doc. # 180) is VACATED. It is FURTHER ORDERED that
3. Defendant Immedia’s Motion for Summary Judgment (Doc. # 161) is DENIED. It is FURTHER ORDERED that
4. Plaintiff’s claims against Defendant Immedia are REINSTATED. It is FURTHER ORDERED that
5. The parties are DIRECTED to contact Chambers at arguello_chambers @cod.uscourts.gov to obtain appropriate dates for a Status Conference in this matter.

 

All Citations

Slip Copy, 2017 WL 4919221

 

 

Footnotes

1

Section 13–80–101(1)(k) provides that “[a]ll actions accruing outside this state if the limitation of actions of the place where the cause of action accrued is greater than that of this state” “shall be commenced within three years after the cause of action accrues, and not thereafter.” (Emphases added.)

2

Section 13–8–110 states:

If a cause of action arises in another state or territory or in a foreign country and, by the laws thereof, an action thereon cannot be maintained in that state, territory, or foreign country by reason of lapse of time, the cause of action shall not be maintained in this state.

3

Section 13–82–104(1)(a) provides that “if a claim is substantively based…[u]pon the law of one other state, the limitation period of that state applies.”