Ross v. Earth Movers, LLC.

• Court: Superior Court of Delaware
• Decided: January 19, 2023
• Docket: S21C-02-011 MHC
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DERRICK J. ROSS, ) ) Plaintiff, ) ) v. ) C.A. No. S21C-02-011 MHC ) EARTH MOVERS, LLC., ) et al. ) ) ) Defendants. )

MEMORANDUM OPINION Submitted: November 3, 2022 Decided: January 19, 2023

Upon Consideration of Defendant/Third Party Defendant Oak Ridge Construction and Transport, Inc., Motion to Dismiss, GRANTED.

Roger D. Landon, Esquire, Murphy & Landon, Wilmington Delaware. Attorney for Derrick J. Ross.

William R. Adams, Esquire, Dickie, McCamey & Chilcote, P.C., Wilmington, Delaware. Attorney for Earth Movers, LLC.

Sarah B. Cole, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, Delaware. Attorney for Oak Ridge Construction and Transport, Inc.

D. Miika Roggio, Esquire, Wilmington Delaware, Matthew Vodzak, Pro Hac Vice, Esquire, Philadelphia Pennsylvania. Attorneys for Allan Myers Inc., Allan Myers MD, Inc., Allan Myers Materials Inc., & Allan Myers Materials MD, Inc.

CONNER, J. INTRODUCTION Defendant/Third-Party Defendant Oak Ridge Construction and Transport,

Inc., (“Oak Ridge”) filed a Motion to Dismiss for lack of personal jurisdiction in the

pending action of Ross v. Earth Movers, LLC. Allan Myers, Inc. (“Allan Myers”)1 a

defendant in the matter, who is joined by Plaintiff and other Defendants, responded

in opposition to the motion. Two reasons were advanced in opposition of the motion.

First, they argue Oak Ridge waived the defense of personal jurisdiction. Second, the

Court is able to exercise personal jurisdiction over Oak Ridge. The Court has

reviewed the parties’ submissions and the relevant law. For the reasons set forth

below, the Court finds that the defense was not waived and jurisdiction over Oak

Ridge is improper. Accordingly, Oak Ridges’ Motion to Dismiss is GRANTED.

FACTUAL BACKGROUND

A. Motor Vehicle Collision

This case centers around a motor vehicle collision that occurred on May 31,

2020.2 At approximately 8:00 p.m. a paving project began on State Route 1.3 Leroy

Yuman (“Yuman”) was employed as a dump truck operator for Allan Myers.4

1 Collectively, Allan Myers refers to Allan Myers, Inc., Allan Myers MD, Inc., Allan Myers Materials, Inc., and Allan Myers Materials MD, Inc. 2 Pl. Compl. ¶ 74. 3 Id. 4 Id. ¶ 77. 1 Yuman was driving a dump truck filled with asphalt from the asphalt plant in Dover,

Delaware, to the paving project site.5 At approximately 10:25 p.m. Yuman deposited

the load of asphalt at the paving project site.6 After depositing the asphalt, Yuman

proceeded southbound on State Route 1 to return to the asphalt plant in Dover.7

However, before leaving the site and entering the roadway, Yuman failed to secure

his dump latch, leaving the dump body in a fully extended upward position.8

While Yuman was operating the fully extended dump truck southbound on

State Route 1, Derrick Ross was operating a 2019 GMC Yukon northbound on State

Route 1.9 Both vehicles were nearing the Paddock Road (State Route 30) overpass.10

At the time, Ross was driving and his three minor children were passengers in the

vehicle.11 Yuman approached the Paddock Road overpass with the dump body fully

extended at approximately 55-60 miles per hour.12 The extended dump body struck

the bottom of the overpass causing it to completely detach from the truck.13 The

dump body came to a resting point seventy feet south of the point of impact on the

right shoulder of State Route 1.14 The dump truck itself continued southbound on

5 Id. 6 Id. ¶ 81. 7 Id. 8 Id. ¶ 85. 9 Id. ¶ 87. 10 Id. 11 Id. ¶ 88. 12 Id. ¶ 92. 13 Id. ¶ 93. 14 Id. ¶ 94. 2 State Route 1 crossing over both lanes into the grassy median area.15 Approximately

two hundred ninety-five feet away from the initial impact, the dump truck then struck

the cable barrier in the median, bounced over the cable barrier, and continued to

travel southeast into the northbound lanes of travel on State Route 1.16

At that same moment, Ross was traveling in the northbound lane when the

dump truck suddenly entered his lane of travel.17 Ross attempted to brake to avoid a

collision but was unable to due to the sudden and unexpected entrance of the dump

truck in his lane of travel.18 The front of the dump truck struck the front of the GMC

Yukon, pushing it backwards to a final resting place on the right shoulder of

northbound State Route 1.19 After the impact with the GMC Yukon, the dump truck

continued to travel eastbound off of the roadway until it ended up in an embankment

where it struck a tree and came to a stop.20

The impact caused the front of the GMC Yukon to be crushed, the air bags to

deploy and the rear window to shatter.21 All passengers of the GMC Yukon were

transported via air lift to hospitals for serious injuries.22 As a result of the collision,

15 Id. ¶ 95. 16 Id. ¶ 96. 17 Id. ¶ 97. 18 Id. ¶ 98. 19 Id. ¶ 99. 20 Id. ¶ 100. 21 Id. ¶ 101. 22 Id. ¶¶ 106-09. 3 Ross and his three minor children all sustained life-threating injuries requiring

extensive medical treatment.23

B. Oak Ridge’s Involvement

Following some discovery, Oak Ridge was named as a third-party defendant

and subsequently a direct defendant in the amended complaint.24 Oak Ridge

purchased the dump truck that was involved in the collision brand new from

Worldwide Equipment of South Carolina, Inc., on or about November 27, 2013.25

Oak Ridge then sold the dump truck to North Carolina Kenworth, Inc. on or about

May 30, 2018.26 North Carolina Kenworth, Inc. then transferred title of the dump

truck to MHC Kenworth Raleigh on or about July 12, 2018.27 MHC Kenworth

Raleigh sold the dump truck to J.R. Atkinson Co. on July 12, 2018.28 J.R. Atkinson

Co. then sold the dump truck to Earth Movers some time in August of 2018. 29

At some point after November 27, 2013 and prior to the collision on May 31,

2020, the dump truck’s PTO control system was modified or altered from its original

condition.30 These modifications are alleged to have rendered the PTO control

23 Id. ¶ 110. 24 Oak Ridge’s Mot. to Dismiss ¶ 2. 25 Pl. Am. Compl. ¶ 297. 26 Allan Myers’ Third-Party Compl. ¶ 34. 27 Id. ¶ 35. 28 Id. ¶ 36. 29 Id. ¶ 37. 30 Pl. Compl. ¶ 299. 4 system unsafe, dangerous, and/or defective.31 The modifications appeared to have

removed the original PTO control system which included a control lever that

required the operator to make a secondary action before the dump truck bed could

lower or raise.32 The modification included removing the old, two-step system, and

replacing it with a toggle switch which enables the operator to lower or raise the

dump bed without a secondary action.33 It is unknown if Oak Ridge is responsible

for the modifications to the PTO system.34

PROCEDURAL HISTORY RELEVANT TO OAK RIDGE

On February 2, 2022, Allan Myers filed a third-party complaint against

multiple parties, including Oak Ridge. Plaintiff, Ross, filed an amended complaint

on April 11, 2022, adding Oak Ridge as a direct defendant. On April 27, 2022, Oak

Ridge filed an answer which did not raise personal jurisdiction. On May 6, 2022,

Oak Ridge filed an amended answer which both denied personal jurisdiction and

raised lack of jurisdiction as an affirmative defense.35

On May 19, 2022, Oak Ridge filed a motion to dismiss for lack of personal

jurisdiction. The Court allowed the parties to engage in jurisdictional discovery. Oak

31 Id. ¶ 302. 32 Id. ¶ 303. 33 Id. ¶ 304. 34 Oak Ridge’s Renewed Mot. to Dismiss ¶ 13. 35 Oak Ridge’s Am. Answer ¶ 17; p. 11 Affirmative Defense VIII. 5 Ridge renewed its Motion to Dismiss for lack of personal jurisdiction on August 10,

2022.

Allan Myers filed a response in Opposition to Oak Ridge’s Motion to Dismiss

on September 9, 2022. The Plaintiff and other Defendants filed responses joining in

support of Allan Myers Response.

WAIVER OF PERSONAL JURISIDCTION DEFENSE

As a threshold matter, Plaintiff, who joined Allan Myers’ Motion in

Opposition, argues that Oak Ridge failed to assert the defense of lack of personal

jurisdiction in its initial pleading and therefore waived the defense.

In making their argument, Plaintiff relies on Hornberger Management Co. v.

Haws & Tingle General Contractors, Inc.36 In Hornberger, the defendant filed a

motion to dismiss on various grounds, including lack of personal jurisdiction,

without leave of the court and over three weeks after the extended deadline for

dispositive motions.37 The Court held that the defense of personal jurisdiction was

waived because defendant’s conduct was inconsistent with such a defense.38 The

Court concluded the defendant submitted to jurisdiction of the court by participating

in an arbitration process without raising jurisdiction, filing a motion for a trial de

36 768 A.2d 983 (Del. Super. 2000). 37 Id. at 989. 38 Id. 6 novo, entering into a case scheduling order, participating in discovery, stipulating to

an extension of time for filing case dispositive motions and failing to file the motion

before the deadline.39 In this case, Plaintiff contends Oak Ridge did not raise the

defense of personal jurisdiction in its “first defensive move,”40 and therefore the

motion to dismiss should be denied.

Oak Ridge argues that Superior Court Civil Rule 12(h) allowed for the timely

amended Answer asserting the affirmative defense of personal jurisdiction.41

Additionally, Oak Ridge argues that Superior Court Civil Rule 12(f) is pertinent

because at no time did this Court or another party involved in the matter object to

Oak Ridge’s assertion of the personal jurisdiction defense.42

A. Applicable Law

Superior Court Civil Rule 12(h) states, in pertinent part:

(h) Waiver or Preservation of Certain Defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived . . . (B) if it is neither made by motion under this Rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.43

39 Id. 40 Id. at 988. 41 Oak Ridge’s Supplemental Reply in Supp. of Mot. to Dismiss ¶ 7. 42 Id. ¶ 8. 43 Super. Ct. Civ. R. 12(h). 7 Superior Court Civil Rule 15(a) states:

(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise, a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the Court otherwise orders.44

In Plummer v. Sherman,45 the Delaware Supreme Court analyzed the rules

stated above and determined that when an answer does not raise personal

jurisdiction, but the answer is amended within 20 days after it is served to raise

personal jurisdiction, the defense is not waived.46

B. Oak Ridge Did Not Waive the Defense

Here, Oak Ridge filed their first amended answer within 20 days after it was

served. Therefore, pursuant to Superior Court Civil Rule 15(a), Oak Ridge was not

44 Super. Ct. Civ. R. 15(a). 45 861 A.2d 1238, 1244 (Del. 2004). 46 Also relevant to the waiver of personal jurisdiction issue but not discussed in Plummer v. Sherman is Superior Court Civil Rule 12(f) which states, “(f) Motion to strike. -- Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the Court's own initiative at any time, the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 8 required to seek leave of the Court to amend and Oak Ridge was allowed to amend

as a matter of course to raise personal jurisdiction. Since Oak Ridge properly

amended their answer pursuant to Superior Court Civil Rule 15(a), under Rule

12(h)(1), personal jurisdiction was not waived.47

In addition, the case at hand can be differentiated from Hornberger. As

mentioned above, the defendant in Hornberger filed their motion to dismiss for lack

of personal jurisdiction over three weeks after the extended deadline for dispositive

motions. The defendant also appeared to submit to personal jurisdiction by

continually participating in Court processes. This is not the case for Oak Ridge.

Although Oak Ridge did not initially assert lack of personal jurisdiction, they did so

in the amended answer. Oak Ridge did not wait an extended period of time after the

deadline, nor did it continue to participate in Court processes that would indicate

submission to jurisdiction.

Plaintiff emphasized the language from Hornberger that stated defendant

must challenge personal jurisdiction when he makes his first defensive move.48 Oak

Ridge did assert personal jurisdiction in their amended answer, as what could be

47 Additionally, Plaintiff’s argument that he could not have objected to Oak Ridge’s amended answer containing the lack of personal jurisdiction defense because Oak Ridge did so “unilaterally without a motion to amend” is irrelevant. Pl. Resp. in Opp’n to Oak Ridge’s Supplemental Reply ¶ 15. As discussed, Oak Ridge was allowed to amend once as a matter of course under Super. Ct. Civ. R. 15(a). 48 Pl. Resp. in Opp’n to Oak Ridge’s Mot. to Dismiss ¶ 15; see also Hornberger Mgmt. Co., 768 A.2d at 988 (emphasis added). 9 considered part of their first defensive move. Since Oak Ridge properly raised the

defense of lack of personal jurisdiction in their amended answer it was not waived.

STANDARD OF REVIEW

When a motion to dismiss challenges personal jurisdiction, the burden is on the

plaintiff to show a basis for the court’s jurisdiction over the nonresident defendant.49

This burden is satisfied by the plaintiff if they can make out a prima facie case that

the court’s exercise of personal jurisdiction is proper.50 A two-step analysis is used

to determine if Delaware courts can obtain personal jurisdiction. 51 First, the Court

must consider whether jurisdiction under the Delaware Long-Arm Statute, 10 Del.

C. § 3104, applies and then the Court must evaluate whether subjecting a defendant

to jurisdiction in Delaware violates the due process clause of the Fourteenth

Amendment.52 The Court views all of the factual disputes in a light most favorable

to the plaintiff.53

49 Galasso v. Cont’l Bank, 1986 WL 7988, at *1 (Del. June 23, 1986). 50 Boone v. Oy Partek Ab, 724 A.2d 1150, 1154 (Del. Super. 1997), aff’d, 707 A.2d 765 (Del. 1998). 51 Id. 52 Id. at 1154-55. 53 Id. at 1155. 10 ANALYSIS

A. Delaware Long Arm Statute

1. General and Specific Personal Jurisdiction

The Delaware Long Arm Statute provides when a court may exercise personal

jurisdiction over a nonresident defendant. The statute states, in pertinent part, that

jurisdiction is appropriate if the defendant:

(1) transacts any business or performs any character of work or service in the State; (2) contracts to supply services or things in this State; (3) causes tortious injury in the State by an act or omission in this State; (4) causes tortious injury in the State or outside of the State by any act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenues from services, or things used or consumed in the State.54 The statute can be further separated into two main categories.55 Sections 3104(c)(1),

(c)(2), and (c)(3) are specific jurisdiction provisions.56 Section 3104(c)(4) is a

general jurisdiction provision.57

General jurisdiction is based on the relationship between the forum and the

party.58 However, Allan Myers is not seeking general personal jurisdiction under

54 10 Del. C. § 3104(c). 55 Boone, 724 A.2d at 1155. 56 Id. 57 Id. 58 Id. 11 subsection (c)(4).59 Therefore, general personal jurisdiction need not be discussed

further.

Specific jurisdiction is triggered when the plaintiff’s claims arise out of acts

or omissions, by the defendant, that take place in Delaware.60 Specific jurisdiction

under subsections (c)(1)-(3) is not met. As stated in an affidavit by Michael

Muckenfuss, the President of Oak Ridge, Oak Ridge is not and has never been a

Delaware corporation or maintained a principal place of business in Delaware.61 Oak

Ridge has no physical or mailing address, phone number, bank account, office,

employees, or other personnel in the State of Delaware.62 It does not own, lease, use,

or otherwise possess any office, warehouse, or other real or personal property in the

State of Delaware.63 In addition, Oak Ridge does not sell any materials in Delaware,

nor does it transport materials, transact, or solicit business in Delaware.64 Lastly, no

revenue is derived from services or things consumed in Delaware.65

Additionally, Allan Myers alleges that since Oak Ridge sold the dump truck

to Kenworth, a multi-state dealer with a website searchable by Delaware residents,

that Oak Ridge should have known the truck could later reach Delaware, and

59 Allan Myers’ Resp. in Opp’n to Oak Ridge Mot. to Dismiss at 4 n.1. 60 Boone, 724 A.2d at 1155. 61 Muckenfuss Aff. ¶¶ 2, 7. 62 Id. ¶ 8. 63 Id. 64 Id. ¶ 10. 65 Id. ¶ 11. 12 therefore, Oak Ridge should be subject to jurisdiction in Delaware.66 Oak Ridge

cannot be subject to specific jurisdiction just because the company it sold the dump

truck to has an internet presence which could have caused the dump truck to be seen

by people in Delaware. Delaware law requires that the out-of-state defendant

committed an act or omission in Delaware that resulted in the tortious injury. 67

“When considering whether the defendant acted in the forum state, courts . . . require

‘something more’ from the defendant than ‘the knowledge that their website could

be viewed or that their product could be used in the forum state.’”68 The defendant

needs to target the contents of the website toward Delaware in a manner that would

purposefully avail itself of doing business with Delaware, not just North America

generally.69 Oak Ridge’s possible knowledge that the truck it sold to Kenworth may

be posted on Kenworth’s website and subsequently viewed in Delaware is not

sufficient to establish jurisdiction.70

Therefore, Allan Myers is left with a dual jurisdiction argument to establish

this Court can exercise personal jurisdiction over Oak Ridge.

66 Allan Myers’ Resp. in Opp’n to Oak Ridge’s Mot. to Dismiss at 5 n.2 & ¶ 13. 67 Rotblut v. Terrapinn, Inc., 2016 WL 5539884, at *6 (Del. Super. Sept. 30, 2016). 68 Id. at *5. 69 Id. at *6.

13 2. Dual Jurisdiction

The Delaware Supreme Court first recognized dual jurisdiction in 1986.

Several cases have since expanded upon the notion of dual jurisdiction. When a dual

jurisdiction argument is advanced, the Court examines jurisdiction under both 10

Del. C. §3104(c)(1) and (c)(4). The Court in LaNuova D & B, S.p.A v. Bowe Co.,

Inc., explained in dicta, “. . . [a] tort claim could enjoy a dual jurisdictional basis

under (c)(1) and (c)(4) if the indicia of activity set forth under (c)(4) were sufficiently

extensive to reach the transactional level of (c)(1) and there was a nexus between the

tort claim and transaction of business or performance of work.”71

Our Courts have broadly construed jurisdiction to the maximum extent

possible to protect the citizens of Delaware. “In fact, the only limit placed on § 3104

is that it remain within the constraints of the Due Process Clause.” 72 So, when a

defendant has sufficient contacts with Delaware and the plaintiffs’ claim arises out

of those contacts, dual jurisdiction is appropriate.73 When analyzing if dual

jurisdiction is satisfied, the court looks to whether there was an intent or purpose on

the part of the defendant to serve the Delaware market.74 If the intent to serve the

71 LaNuova D&B, S.p.A. v. Bowe Co., Inc., 513 A.2d 764 n.3 (Del. 1986). 72 Boone, 724 A.2d at 1157. 73 Id. 74 Id. at 1158. 14 Delaware market results in the introduction of a product to Delaware and the cause

of action arises from an injury caused by that product, dual jurisdiction is satisfied.75

In Boone v. Oy Partek Ab, the Court held that the long arm statute was

satisfied via § 3104(c)(1) and (c)(4) because the defendant solicited business from

all fifty states, including Delaware.76 Shipments of up to fifty tons of asbestos

entered Delaware monthly for ten years and caused injury to the plaintiff. 77 As a

result of the shipments, the defendant obtained approximately $270,000 in revenue

from the sale of asbestos to Delaware.78 The Court reasoned that not only did the

defendant implicitly solicit business from Delaware, it also derived substantial

revenue from Delaware in a persistent course of conduct.79

The Court in Diaz Cardona v. Hitachi Koki Co., LTD, also found dual

jurisdiction was satisfied.80 In Diaz Cardona, the defendant set up a Delaware

corporation as its exclusive U.S. distribution site for the purpose of selling products

in the states, including Delaware.81 This established an intent to serve Delaware.82

Although there was no specific data regarding the sale of the defendant’s nail guns

75 Id. 76 Id. 77 Id. 78 Id. 79 Id. 80 Diaz Cardona v. Hitachi Koki Co., Ltd., 2019 WL 449698, at *4 (Del. Super. Feb. 5, 2019). 81 Id. 82 Id. 15 in each state, the fact that it was a mass marketed and mass produced consumer

product offered for sale through Lowes stores supported a strong inference that

significant amounts had been sold in every state, including Delaware.83 Since the

plaintiff was injured using one of the nail guns in Delaware, that was also sold in

Delaware, the Court held that the case satisfied the dual jurisdiction requirements.84

In this case, there is a complete lack of evidence that Oak Ridge does or

solicits business in Delaware, engages in any other course of conduct in Delaware,

or derives substantial revenue from things used or consumed in Delaware. Not only

is there no “persistent course of conduct in Delaware,”85 there is no conduct directed

at or in Delaware at all.

The case that is most analogous to Oak Ridge’s connections, or lack thereof,

with Delaware is Fischer v. Hilton.86 Although decided before dual jurisdiction was

recognized, it was analyzed in the same manner, using both § 3104(c)(1) and (c)(4).

Fischer involved the sale of a truck from a seller in Ohio to a buyer in Delaware.87

The defendant seller neither conducted nor solicited any other business in

Delaware.88 The Court held that the sale of one truck, which would ultimately end

83 Id. 84 Id. 85 10 Del. C. § 3104(c)(4). 86 549 F. Supp. 389 (D. Del. 1982). 87 Id. at 390. 88 Id. at 391. 16 up in Delaware, was not enough to satisfy the jurisdictional requirements. 89 “The

nonresident must regularly do or solicit business, or engage in a persistent course of

conduct.”90

Here, Oak Ridge had no way of knowing the truck would ultimately be used

in Delaware. And to reiterate, Oak Ridge did not regularly do business or engage in

persistent conduct in Delaware. Specific, general, and dual jurisdiction are not met

under Delaware’s Long Arm Statute.

B. Constitutional Analysis

Even if the requirements of the Long Arm Statute were met, due process

considerations would preclude the exercise of jurisdiction. The second step in the

personal jurisdictional analysis is the Due Process requirement. This step is further

broken down into two prongs, minimum contacts and fairness.

1. Minimum Contacts

The first prong of the constitutional analysis is determining whether Oak

Ridge engaged in minimum contacts with Delaware. In other words, did Oak Ridge

89 Id. at 392. 90 Id. 17 act in a manner to purposefully avail itself of the privilege of conducting activities

within Delaware.91

A state court is able to exercise personal jurisdiction over a nonresident

defendant as long as minimum contacts exist between the defendant and the forum

state.92 Due process does not allow a court to issue a binding judgment in personam

against a defendant with which the state has no contacts, ties, or relations.93 The

concept of minimum contacts “protects the defendant against the burdens of

litigating in a distant or inconvenient forum. And it acts to ensure that the States

through their courts, do not reach out beyond the limits imposed on them by their

status . . . .”94

In determining whether there are minimum contacts, the courts look to see if

there is a substantial connection between the defendant and the forum state. The

contacts must come by actions of the defendant purposefully directed towards the

forum state. Conduct between the defendant and forum state includes but is not

limited to performing services in the forum state, soliciting business either through

salespersons in the forum state or advertising reasonably calculated to reach the

91 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)(citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)). 92 Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945). 93 Id. at 319. 94 World-Wide Volkswagen Corp., 444 U.S. at 292. 18 forum state, making regular sales to residents of the forum state, and seeking to serve

the forum state’s market.95

World-Wide Volkswagen Corp. v. Woodson provides the Court with a basis

for what equates to minimum contacts. In World-Wide Volkswagen Corp. a products

liability suit was instituted in an Oklahoma state court by the plaintiffs for personal

injuries that were sustained in Oklahoma after an automobile accident.96 An Audi

was purchased by the plaintiffs in New York while they were residents of New

York.97 After a year of owning the Audi in New York, the plaintiffs moved from

New York driving the Audi to their new home in Arizona.98 On the way to Arizona

the plaintiffs were passing through Oklahoma when another car struck the rear of

their Audi causing a fire which severely injured the plaintiffs.99

The Supreme Court found that there was a total absence of the affiliating

circumstances that are necessary to exercise state-court jurisdiction.100 The

defendants engaged in no activity whatsoever in Oklahoma.101 The defendants did

not close sales, perform services, solicit business, nor advertise in a manner

95 Id. at 286-87. 96 Id. at 287. 97 Id. 98 Id. at 288. 99 Id. 100 Id. at 295. 101 Id. 19 reasonably calculated to reach Oklahoma.102 They availed themselves of none of the

privileges and benefits of Oklahoma law.103 Jurisdiction could not be established on

one isolated occurrence of a single Audi being sold in New York to New York

residents that happened to suffer an accident while passing through Oklahoma.104

The Court surmised it may be foreseeable the Audi would end up in Oklahoma

because it is designed to move about roadways, but that is not enough.105

“Foreseeability alone has never been a sufficient benchmark for personal jurisdiction

under the Due Process Clause.”106 However, foreseeability is not entirely

irrelevant.107 “[T]he foreseeability that is critical to due process analysis is not the

mere likelihood that a product will find its way into the forum State. Rather, it is that

the defendant’s conduct and connection with the forum State are such that he should

reasonably anticipate being hauled into court there.”108 The Court held that the

defendants had no contacts, ties, or relations with Oklahoma.109 Since there was no

purposeful availment on behalf of the defendants, it was not reasonable for them to

foresee being subject to suit in Oklahoma, therefore jurisdiction was not proper.110

102 Id. 103 Id. 104 Id. 105 Id. 106 Id. 107 Id. at 297. 108 Id. 109 Id. at 299. 110 Id. at 297. 20 It is clear, based on this record, Oak Ridge did nothing that could be construed

as purposefully availing itself of the privilege of conducting business in Delaware,

thus invoking the benefits and protections of Delaware’s laws.111 This Court would

exceed the limits of due process if it were to exercise jurisdiction over Oak Ridge.

2. Fairness

Although this Court has found that Oak Ridge is not subject to personal

jurisdiction from either the Delaware Long Arm Statute, or the minimum contacts

requirement, the Court will briefly discuss the second prong of the due process

analysis.

Not only does a defendant have to have minimum contacts with the forum

state to satisfy the due process analysis, but those contacts also must be “such that

the maintenance of the suit does not offend traditional notions of fair play and

substantial justice.”112

The Court weighs several factors in determining if jurisdiction is fair under

the due process clause. The burden on the defendant is always a primary concern.113

However that burden is weighed with the other factors. These factors include: “[t]he

forum State’s interest in adjudicating the dispute; the plaintiff’s interest in obtaining

111 Hanson v. Denckla, 357 U.S. at 253. 112 Int'l Shoe Co., 326 U.S. at 316. 113 World-Wide Volkswagen Corp., 444 U.S. at 292. 21 convenient and effective relief . . .; the interstate judicial system’s interest in

obtaining the most efficient resolution of controversies; and the shared interest of

several States in furthering substantive social policies.”114

Oak Ridge will suffer from the burden of having to litigate in a Delaware court

when they are entirely based in South Carolina. In addition, the simple act of selling

a truck in South Carolina to a North Carolina company, which is then involved in an

auto accident in Delaware years later does not mean Oak Ridge could or should have

reasonably foreseen being hauled into court in Delaware. Also, there still has not

been confirmation as to when the modifications to the dump truck’s PTO system

were made, meaning no party is even remotely certain that it was Oak Ridge who

made the modifications. It is entirely unreasonable to expect Oak Ridge to defend

itself in a Delaware court when they have no purposeful or continuous contacts and

have not even been proven as the company who made the alleged hazardous

modifications. If any party wishes to proceed against Oak Ridge they are not

precluded from doing so in a South Carolina court.

114 Id. (citations omitted). 22 CONCLUSION

For the reasons set forth above Defendant Oak Ridge’s Motion to Dismiss is

GRANTED.

IT IS SO ORDERED.

/s/ Mark H. Conner Mark H. Conner, Judge

cc: Prothonotary