Circ. 10/03/2024
Cite as 2024 Ark. App. 501 ARKANSAS COURT OF APPEALS DIVISION I No. CV-22-648
KIMBRA DOLAN Opinion Delivered October 23, 2024 APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. ELEVENTH DIVISION [NO. 60CV-17-2004] LICHTSINN MOTORS, INC.; WINNEBAGO INDUSTRIES, INC.; HONORABLE PATRICIA JAMES, AND MERCEDES-BENZ USA, LLC JUDGE
APPELLEES AFFIRMED IN PART; APPEAL DISMISSED WITHOUT PREJUDICE IN PART; MOOT IN PART
BRANDON J. HARRISON, Chief Judge
In November 2014, appellant Kimbra Dolan and her husband, Leslie Dolan, traveled
to Forest City, Iowa to buy a recreational vehicle from appellee Lichtsinn Motors, Inc. The
vehicle was manufactured by Winnebago Industries, Inc., on a Mercedes-Benz USA, LLC,
chassis. Kimbra and Leslie signed the purchase agreement in Iowa after contacting Lichtsinn
by phone and email from Arkansas. The purchase agreement included a new vehicle limited
warranty (NVLW) from Winnebago that required any warranty claims to be brought in
Winnebago County, Iowa.
In April 2017, Kimbra sued Lichtsinn, Winnebago, and Mercedes-Benz in Pulaski
County, where she lived—and was simultaneously suing Leslie for divorce. She alleged the
vehicle was a lemon (a big sour one). In two and a half years, it had been out of service more than three hundred days and repaired at least twelve times. She claimed the defendants
acted negligently or worse in every act that contributed to the vehicle’s existence, her
awareness of it, or her opportunity to buy it.1 The claims included breach of express
warranty and implied warranties of merchantability and fitness for a particular purpose.
Both Lichtsinn and Winnebago sought to dismiss Kimbra’s complaint for want of
personal jurisdiction under Arkansas Rule of Civil Procedure 12(b)(2), and Winnebago
argued venue was improper because of the forum-selection clause in the NVLW. All
defendants contended Leslie, who owned the vehicle with Kimbra, was a necessary party.
The court ordered him joined as a plaintiff.
The proceedings stretched on for years. In Year Two, our supreme court recognized
a tougher standard for specific personal jurisdiction in Lawson v. Simmons Sporting Goods,
Inc., 2019 Ark. 84, 569 S.W.3d 865, after the United States Supreme Court vacated our
judgment that applied an easier one and remanded for further consideration given the
Court’s holding in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco
County, 582 U.S. 255 (2017).
Eventually, Kimbra agreed with Mercedes-Benz on a lump-sum settlement. But
Mercedes-Benz was not willing to pay it outright, because Leslie’s rights to the vehicle
remained unadjudicated, and no one could locate him to get his consent. Kimbra moved
to enforce the settlement; Mercedes-Benz moved to interplead the funds. The court granted
interpleader.
1 Our summary. She detailed the acts and some omissions.
2 The court agreed with Winnebago and Lichtsinn that it lacked personal jurisdiction
over either defendant and agreed venue was improper for Winnebago. It dismissed Kimbra’s
claims against them without prejudice and certified those orders for immediate appeal under
Arkansas Rule of Civil Procedure 54(b).
Kimbra appealed both Rule 12(b) grounds for dismissal. We do not decide whether
venue was proper because we affirm the personal-jurisdiction ruling, which means we don’t
need to reach the venue issue.
Kimbra appeals the interpleader order too, but we dismiss that part of the appeal.
Briefly, interpleader is a two-step process. So. Farm Bureau Ins. Co. v. Parson, 2015 Ark.
App. 95. This is a step-one order. It provides that the claims against Mercedes-Benz “will
be dismissed with prejudice” when the settlement is paid into the court and that the court
“will determine” how the Dolans will split the settlement proceeds. The court “will” do
those things—as in, will do them “in the future.” The order is not final for appeal because
it does not conclude the parties’ rights to the matter in controversy or end even the
interpleader proceedings. So. Farm Bureau Cas. Ins. Co. v. Easter, 369 Ark. 101, 104, 251
S.W.3d 251, 253 (2007).
I.
The supreme court’s opinion in Lawson, 2019 Ark. 84, 569 S.W.3d 865, did more
than acknowledge a stricter standard to assert specific personal jurisdiction over out-of-state
defendants. It also held that the circuit court can consider extrinsic proof in the jurisdictional
analysis, overruling decisions that had held that doing so would convert the Rule 12(b)(2)
motion to a summary-judgment motion. Id. at 3–4, 569 S.W.3d at 868. In fact, the court
3 must find whether personal jurisdiction exists, even if that requires it to hear testimony or
resolve disputed factual issues. Id. at 5–6, 569 S.W.3d at 869. A jurisdiction finding based
on undisputed facts is reviewed de novo regardless. Here, the facts relevant to whether
personal jurisdiction exists are essentially undisputed.
Kimbra contends the circuit court erred in granting Lichtsinn’s and Winnebago’s
motions to dismiss for want of personal jurisdiction because both defendants are subject to
both general and specific jurisdiction in Arkansas and, alternatively, waived that defense.
We address waiver first.
A. Waiver or Forfeiture of the Rule 12(b) Defenses
Kimbra contends Lichtsinn and Winnebago waived their defense of want of personal
jurisdiction under Arkansas Rule of Civil Procedure 12(b)(2) by moving for joinder of her
husband Leslie. To forfeit or waive a Rule 12(b) defense through litigation conduct, a party
must request “affirmative relief,” meaning something “‘more than a defensive action’ that is
inconsistent with a defendant’s assertion that the circuit court lacked personal jurisdiction
over him.” Johnson v. Schumacher Grp. of Ark., Inc., 2019 Ark. App. 545, at 11–12, 589
S.W.3d 470, 477 (citation omitted).
What does that mean? Filing a nonvoluntary pleading like a compulsory
counterclaim does not waive the Rule 12(b) defenses. Ark. Game & Fish Comm’n v. Lindsey,
292 Ark. 314, 319, 730 S.W.2d 474, 477 (1987). Filing a noncompulsory counterclaim,
cross-claim, or third-party claim in which the defendant “‘invokes the jurisdiction of the
court’ and thereby ‘submits to it’” does waive them. Johnson, 2019 Ark. App. 545, at 12,
589 S.W.3d at 477.
4 Motions for protective order and requests for attorney’s fees fall on the no-waiver
side. Id. So do a range of acts defending litigation and participating in discovery, including
moving for summary judgment, combining a response to a motion for protective order with
a motion to compel, and moving in limine to exclude evidence. Carter v. Livingston, 2021
Ark. App. 363, at 7–9, 635 S.W.3d 351, 357–58.
Arkansas Rule of Civil Procedure 19(a) states:
A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or, (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter, impair or impede his ability to protect that interest, or, (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest. If he has not been joined, the court shall order that he be made a party.
Ark. R. Civ. P. 19 (2024). Our appellate courts have consistently recognized the
importance of joining indispensable parties. See, e.g., Nolan v. 2600 Holdings, LLC, 2024
Ark. 50, 686 S.W.3d 499. It ensures that all who will be materially affected by litigation
are made parties to it. Id. at 5, 686 S.W.3d at 502. The need to join an indispensable party
cannot be waived. What’s more, the circuit court or appellate court must raise the issue sua
sponte if necessary. Vibo Corp. v. State ex rel. McDaniel, 2011 Ark. 124, 380 S.W.3d 411;
Morgan v. Turner, 2010 Ark. 245, 368 S.W.3d 888.
Leslie Dolan co-owned the Winnebago throughout these proceedings. As far as we
know, he still does. His separation agreement with Kimbra gives her possession of the
vehicle but does not address ownership. In his absence, appellees could be subject to “a
5 substantial risk of incurring double, multiple or otherwise inconsistent obligations.” Ark.
R. Civ. P. 19(a).
It is not inconsistent for a defendant to object that a court has no jurisdiction but
prefer to endure only one trial to a void judgment there. Alerting the circuit court to
Leslie’s absence, and the facts that made joinder compulsory under Rule 19(a), did not
request “affirmative relief” in the relevant sense or waive Lichtsinn’s and Winnebago’s Rule
12(b) defenses. See Carter, 2021 Ark. App. 363, at 8–9, 635 S.W.3d at 358 (citing City of
Tontitown v. First Sec. Bank, 2017 Ark. App. 326, 525 S.W.3d 18).
B. Personal Jurisdiction
Kimbra argues the circuit court erred in substance by finding that neither Lichtsinn
nor Winnebago was subject to personal jurisdiction in Arkansas. She claims it operates
online stores and encourages RV sales nationwide. That would include Arkansas. She
claims its website allows purchases of RVs and RV parts online and allows customers to
begin the financing process through various lending institutions. Lichtsinn’s website
includes a map of the United States with pushpin symbols identifying where past customers
live. Some live in Arkansas. The site includes customer reviews. Some reviewers are from
Arkansas.
Kimbra argued for personal jurisdiction over Winnebago because it distributes RVs
and RV parts to three independent dealers in Arkansas, receives sales profits from those
dealers, and requires its independent dealers to provide (or otherwise arrange for) full service
for its RVs. She asserts that Winnebago agrees to repurchase RVs that have been returned,
and acknowledges that this might be limited by state law. Kimbra contends that the Dolans’
6 travel to Iowa to complete the purchase has no bearing on personal jurisdiction because
Lichtsinn and Winnebago encourage customers to do that.
The record reflects that Kimbra and Leslie Dolan traveled to Forest City, Iowa, to
purchase the vehicle from Lichtsinn. Even if sales can be made to Arkansans through
Lichtsinn’s and Winnebago’s websites, that would not itself establish specific personal
jurisdiction here. Kimbra provided no evidence that either defendant directly markets to
or specifically targets customers in Arkansas.
Most courts hold that specific personal jurisdiction “does not attach simply because
a defendant operates a commercial website that is, at some level, interactive and allow[s] for
sales into the forum state” as well as “any other state at large.” Allied Ins. Co. of Am. v.
JPaulJones L.P., 491 F. Supp. 3d 472, 477 (E.D. Mo. 2020). Only where there is evidence
the defendant “targets” a specific forum with the website by, for example, “tak[ing] action
to maximize usage of the website in the forum” or “put[ting] forum-specific content in the
website,” can those contacts support specific jurisdiction. Id. (quoting Britax Child Safety,
Inc. v. Nuna Int’l B.V., 321 F. Supp. 3d 546, 556 (E.D. Pa. 2018)).
Similarly, the emails between Lichtsinn and Kimbra are insufficient to support
specific jurisdiction. Lichtsinn did not solicit the sale by email. Instead, it responded to
Kimbra’s inquiries later—at least one of which indicates Kimbra sent it from Ohio. But
“use of arteries of interstate mail and banking facilities, standing alone,” won’t satisfy due
process in asserting long-arm jurisdiction over a nonresident. Goodwin v. Magness Oil Co.,
2018 Ark. App. 303, at 7, 552 S.W.3d 26, 30–31 (quotation omitted). The nonresident’s
7 emails and social-media posts that simply reach the state is likewise insufficient. Id. at 7, 552
S.W.3d at 31.
The fact that the Dolans did not buy the vehicle in Arkansas is not dispositive either,
however. In Ford Motor Co. v. Montana Eighth Judicial District Court, 592 U.S. 351 (2021), a
case no party cited, the Supreme Court of the United States rejected the notion that specific
jurisdiction of a suit against an automobile manufacturer could attach only in the state of
first sale. Id. at 361–62. Whether the circuit court could assert personal jurisdiction over
either defendant is almost wholly decided by the discussion and holding in Ford Motor Co.
In the underlying suit, the plaintiff alleged that Ford’s design defects, failure to warn,
and negligence contributed to a fatal rollover accident involving a 1996 Ford Explorer. Ford
had designed the Explorer in Michigan and manufactured it in Kentucky. Id. at 356–57. It
was first sold in Washington. Id. at 357. Only through “later resales and relocations by
consumers” had it come to Montana. Id.
All parties agreed Ford was not subject to general jurisdiction. Under Daimler AG v.
Bauman, 571 U.S. 117 (2014), only “a select set of affiliations with a forum” would expose
a defendant to general jurisdiction, meaning, for corporate defendant, its “place of
incorporation and principal place of business.” Ford Motor Co., 592 U.S. at 358–59 (cleaned
up). For Ford, those states were Delaware and Michigan. Id. at 359. For Lichtsinn and
Winnebago, both places are Iowa. The circuit court did not err by concluding they were
not subject to general jurisdiction in Arkansas.
Specific jurisdiction is a closer question—at least for Winnebago. The Court decided
Montana could assert specific personal jurisdiction over Ford for personal-injury claims
8 involving its vehicles, based on contacts similar to those between Winnebago and Arkansas,
including that Ford advertised in the state, sold vehicles there through dealerships, provided
service through certified dealers, and sold spare parts. Id. at 364–66. Ford argued that under
Bristol-Myers, 582 U.S. 255, the plaintiff had to prove its forum conduct “gave rise to the
plaintiff’s claims” in a causal sense—to prove, in other words, that Ford had not just sold a
lot of cars in Montana but had sold this car in Montana. Id. at 361. In Ford’s view, the
plaintiff had to link the car to Ford’s forum contacts to prove specific jurisdiction the same
way the plaintiff would have to prove the car was a Ford at trial to establish liability.
The Supreme Court of the United States rejected that argument. It held the
allegation that the Montana resident plaintiff “suffered in-state injury because of defective
products that [the company] extensively promoted, sold and serviced” in that state met the
relatedness prong of the requirement that a suit either “arise out of or relate to the defendant’s
contacts with the forum.” 592 U.S. at 362 (quoting Bristol-Myers, 582 U.S. 255). The
Court noted that it had characterized this kind of suit against a foreign car company for an
in-state accident as “an illustration—even a paradigm example—of how specific jurisdiction
works.” Id. at 366 (citing Daimler AG, 571 U.S. at 127 n.5).
Still earlier, the Supreme Court had decided in a product-liability collision suit that
the foreseeability that a moveable object might malfunction does not make the seller
amenable to suit everywhere, or “[e]very seller of chattels would in effect appoint the chattel
his agent for service of process.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
296 (1980). The mere “unilateral activity of those who claim some relationship with a
9 nonresident defendant cannot satisfy the requirement of contact with the forum State.” Id.
at 298 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
World-Wide Volkswagen established that specific personal jurisdiction over an out-of-
state car dealer would not result simply because a defective car was driven here—dispositively,
we think, with respect to Kimbra’s claims against Lichtsinn. But the Ford Motor Co. Court
noted that the opinion had contrasted the dealer’s position with that of the car’s
manufacturer, which had not contested jurisdiction. Ford Motor Co., 592 U.S. at 363 (citing
World-Wide Volkswagen, 444 U.S. at 297). Where does that leave Winnebago?
The opinion in Ford Motor Co. is fresh, and we suspect that the test for what claims
do or do not “relate to” a defendant’s forum contacts will be contested (perhaps forever).
See, e.g., id. at 376 (Gorsuch, J., concurring) (“But what does this assortment of nouns mean?
Loosed from any causation standard, we are left to guess.”). Does the fact that Ford Motor
Co., like World-Wide Volkswagen, was a car-accident product-liability case suggest that when
the Supreme Court held there was a close enough connection between the plaintiffs’
allegations that “they suffered in-state injury because of defective products that Ford
extensively promoted, sold, and serviced in Montana” and Ford’s activities there, 592 U.S.
at 1032, it used “injury” in a sense specific to that setting—“personal injury” or “bodily
injury,” for example? Both the majority opinion and Justice Alito, in concurrence, refer to
the forum states’ interest in providing redress for in-state injury caused by out-of-state actors.
See 592 U.S. at 368 (“For [the States of first sale], the suit involves all out-of-state parties,
an out-of-state accident, and out-of-state injuries.”); id. at 372 (Alito, J., concurring)
(challenging Ford’s argument that Montana and Minnesota had no legitimate interest in the
10 suits given that “[t]heir residents, while riding in vehicles purchased within their borders,
were killed or injured in accidents on their roads”).
We ask because Kimbra’s claims are not for “injury” in that sense. Her complaint
includes a litany of product-liability boilerplate, including allegations that the vehicle was
defectively designed and manufactured, and it was sold in a condition that broke express
and implied warranties to her. But she does not claim injury from operating the vehicle.
Her claim seems to be for injury buying a vehicle that won’t operate—suffering “damages
and non-use of the vehicle” because it won’t start, for example.
The Supreme Court admonished in Ford Motor Co. that the absence of a need to
prove a causal link to the defendant’s forum contacts “does not mean anything goes. In the
sphere of specific jurisdiction, the phrase ‘relate to’ incorporates real limits, as it must to
adequately protect defendants foreign to a forum.” Id. at 362; but see id. at 376 (Gorsuch,
J., concurring) (“The majority promises that its new test ‘does not mean anything goes,’ but
that hardly tells us what does.”).
There is some evidence that Winnebago distributes RVs and RV parts to
independent dealers in Arkansas and provides for them to be serviced here. Indeed,
Kimbra’s vehicle was serviced at some of those dealerships. Apparently, in Montana, thirty-
six dealerships sell Fords. 592 U.S. at 365. In Arkansas, three dealerships sell Winnebagos.
We don’t know how many Winnebagos they sell. We know one they did not sell. The
Dolans bought it “as is” in Iowa.
Kimbra’s claim, at root, is for wrongfully selling it. She has driven her injury around
much of the country since. We infer that maybe most of the time, she kept it parked at her
11 house in Sherwood. Because Kimbra’s lawsuit did not arise from or relate to Winnebago’s
contacts with Arkansas, we affirm the circuit court’s finding that it lacked personal
jurisdiction over Lichtsinn and Winnebago.
* * * *
Because Kimbra did not demonstrate that an Arkansas court can assert personal
jurisdiction over Winnebago, we do not need to address whether Pulaski County was a
proper venue for the claims against it, either.
We dismiss Dolan’s appeal against Mercedes-Benz for lack of a final order. We affirm
the circuit court’s dismissal of Dolan’s claims against Lichtsinn and Winnebago for lack of
personal jurisdiction, making the circuit court’s findings on improper venue moot.
Affirmed in part; appeal dismissed without prejudice in part; moot in part.
THYER, J., agrees.
GRUBER, J., concurs without opinion.
David A. Hodges and David Horn, for appellant.
Wright, Lindsey & Jennings LLP, by: Michael A. Thompson and Antwan D. Phillips, for
separate appellee Mercedes-Benz USA, LLC.
Hall Booth Smith, P.C., by: Baxter D. Drennon and Joseph C. Stepina, for separate
appellees Lichtsinn Motors, Inc., and Winnebago Industries, Inc.