CMI Roadbuilding, Inc. v. Wiregrass Constr. Co.

CMI ROADBUILDING, INC., Plaintiff, v. WIREGRASS CONSTRUCTION COMPANY, INC., Defendant.

Case No. CIV-20-832-D

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

May 28, 2021

ORDER

Before the Court is Defendant's Motion to Dismiss or, Alternatively, Motion to Transfer Venue, with Brief in Support [Doc. No. 12]. Plaintiff responded [Doc. No. 15], to which Defendant replied [Doc. No. 16]. The matter is fully briefed and at issue.

BACKGROUND

This case centers around two contracts. Plaintiff, CMI Roadbuilding, Inc. ("CMI"), maintains its principal place of business in Oklahoma City, Oklahoma. Defendant, Wiregrass Construction Company, Inc. ("Wiregrass"), maintains its principal place of business in Dothan, Alabama.

Plaintiff manufactures heavy equipment in the road building, construction, and waste management industries. Wiregrass operates high capacity asphalt production plants. In November 2016, the parties entered into a contract for the sale of certain equipment for a purchase price of $1,522,000. ("the first contract"). Wiregrass paid the non-refundable down payment of $304,000 and made an additional payment of $1,065,400. CMI alleges Wiregrass still owes $152,200 pursuant to the first contract.

In February 2017, the parties entered into a contract for the relocation of an asphalt plant from Lacon, Alabama to Clanton, Alabama ("the second contract"). CMI was to dismantle, transport, install, and commission the asphalt plant. CMI states the total price was $295,000, and Wiregrass paid $147,500. CMI alleges that Wiregrass still owes $147,500 pursuant to the second contract.

CMI filed suit on August 18, 2020, alleging two claims for breach of contract and two claims for unjust enrichment. Compl. [Doc. No. 1], at 4-7. Wiregrass filed a motion to dismiss, or alternatively, a motion to transfer venue [Doc. No. 12]. Wiregrass contends that (1) there was insufficient service of process, (2) the Court lacks personal jurisdiction, and (3) this District is not the proper venue.

DISCUSSION

I. Insufficient Service of Process

A motion under FED. R. CIV. P. 12(b)(5) challenges the "mode of delivery or the lack of delivery of the summons and complaint." Craig v. City of Hobart, No. CIV-09-0053-C, 2010 WL 680857, at *1 (W.D. Okla. Feb. 24, 2010). Once a defendant files a Rule 12(b)(5) motion, "plaintiffs bear the burden of demonstrating that they complied with all statutory and due process requirements." Id. "'The parties may submit affidavits and other documentary evidence for the Court's consideration, and plaintiff is entitled to the benefit of any factual doubt.'" Id. (citation omitted).

FED. R. CIV. P. 4(h) governs service on a domestic or foreign corporation or partnership. Rule 4(h)(1)(A) permits service "in the manner prescribed by Rule 4(e)(1) for serving an individual," and Rule 4(h)(1)(B) allows for service "by delivering a copy of thesummons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process . . . ." Service on a corporation may be satisfied by complying with either subsection.

Pursuant to Rule 4(h)(1)(A), Rule 4(e) allows for service by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Here, service could have been performed pursuant to Oklahoma or Alabama law. Service was completed by Federal Express ("FedEx"). Defendant contends this constitutes insufficient service under both Oklahoma and Alabama law because it was not delivered by certified mail. Mot. to Dismiss [Doc. No. 12] at 10. In response, Plaintiff asserts that Federal Express has been deemed sufficient in this Circuit. Pl.'s Resp. Br. [Doc. No. 15] at 5-6. The case cited by Plaintiff, however, is from the District of Colorado addressing service under Colorado law. See Kulikowski v. Payscale, No. 18-cv-00702-MSK-MEH, 2018 WL 3209109, at *4 (D. Colo. June 29, 2018).

In any event, Plaintiff has satisfied Rule 4(h)(1)(B). Plaintiff contends that it served Defendant's registered agent, thereby satisfying this subsection. Defendant acknowledges this in its Motion. See Mot. to Dismiss [Doc. No. 12] at 10 ("On August 20, 2020, Wiregrass's registered agent, John L. Harper, received an attempted service by CMI via Federal Express ("FedEx")."). Further, Defendant's registered agent, John L. Harper, concedes in his affidavit that "[o]n or about August 20, 2020, I received, as Registered Agent and President of Wiregrass, a copy of the Complaint . . . via Federal Express." See [Doc. No. 12], Ex. 1., ¶ 11. Subsection (B) allows for service on a corporation's registeredagent, and it makes no distinction for certified mail. As such, the Court finds that the service on John Harper by FedEx satisfies the requirement under Rule 4(h)(1)(B), and service was sufficient.

II. Personal Jurisdiction

When considering a motion to dismiss for lack of personal jurisdiction, a district court has discretion to determine the procedure to employ to rule on the issue. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1069 (10th Cir. 2008); Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992). Where the parties submit sufficient evidence to allow the Court to make this determination, a hearing is not required. Dudnikov, 514 F.3d at 1069.

Having reviewed the parties' briefs and the evidentiary materials in this case, the Court concludes that an evidentiary hearing is not required because the record contains sufficient evidence on which to base a ruling on the question of personal jurisdiction. Accordingly, the Court will decide the issue without conducting an evidentiary hearing.

It is well established that, to be subject to the personal jurisdiction of the court, a nonresident defendant must have sufficient contacts with the forum state to satisfy the requirements of due process. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980); Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir. 2000). The Court's analysis of personal jurisdiction in diversity cases generally involves a two-step inquiry: courts must determine whether the exercise of jurisdiction is consistent with (1) the long-arm statute of the forum state, and (2) the due process clause of the fourteenth amendment. Rambo v. Am. S. Ins. Co., 839 F. 2d 1415, 1416 (10th Cir. 1988).In Oklahoma, that test becomes a single inquiry because Oklahoma's long-arm statute reaches to the full extent of due process. Id.

To establish the requisite minimum contacts, a plaintiff must show that the defendant has "purposefully avail[ed] itself of the privilege of conducting activities within the forum state"; for this purpose, a defendant need not be physically present or have physical contacts with the forum, so long as its efforts are purposefully directed there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). The minimum contacts standard may be satisfied in two ways. First, contacts may be satisfied by a showing that the defendant has purposefully directed its activities at residents of the forum state, and the litigation results from alleged injuries that "arise out of or relate to" those activities. Id. at 472. If this showing is made, the court has "specific" personal jurisdiction over the defendant. Id. Where a plaintiff's cause of action does not arise from the defendant's activities within the forum state, however, minimum contacts may be established by showing that the defendant had "continuous and systematic general business contacts" in the state. OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998) (internal quotations and citation omitted). If so, the court has "general" personal jurisdiction over the defendant.

Here, Plaintiff concedes that the Court does not have general jurisdiction over Defendant. See Pl.'s Resp. Br. [Doc. No. 15] at 7-8 ("Accordingly, CMI does not contend this Court may exercise general jurisdiction over Wiregrass."). Thus, the inquiry is focused on specific jurisdiction. The Tenth Circuit has explained the analysis to determine whether specific personal jurisdiction exists:

[A]n analysis of whether a court's exercise of specific personal jurisdiction comports with the Due Process Clause is a two-step inquiry. See Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004), cert. denied, 544 U.S. 974 (2005). First, we consider whether "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen, 444 U.S. at 297. Second, "if the defendant's actions create sufficient minimum contacts, we must then consider whether the exercise of personal jurisdiction over the defendant offends traditional notions of fair play and substantial justice." OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998) (quotations omitted).

Pro Axess, Inc. v. Orlux Distrib, Inc., 428 F.3d 1270, 1276-77 (10th Cir. 2005).

a. Sufficient Minimum Contacts

"In determining whether a defendant has established sufficient minimum contacts with the forum state, we examine whether the defendant 'purposefully avail[ed] itself of the privilege of conducting activities within the forum State.'" Pro Axess, 428 F.3d at 1277 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). A defendant's contacts are sufficient if "the defendant purposefully directed its activities at residents of the forum . . . and . . . the plaintiff's claim arises out of or results from actions by the defendant himself that create a substantial connection with the forum state." OMI Holdings, 149 F.3d at 1091 (quotations, citations, and emphasis omitted). A defendant's contacts with the forum state "must be sufficient such that, notwithstanding its lack of physical presence in the state, the state's exercise of...