United States District Court, W.D. Arkansas, El Dorado Division
FIRST STATE INSURANCE COMPANY and NEW ENGLAND REINSURANCE CORPORATION PLAINTIFFS
PULMOSAN SAFETY EQUIPMENT CORPORATION; VICKIE BELL; JONATHAN BELL; PHILLIP B. BELL, JR. DEFENDANTS VICKIE BELL; JONATHAN BELL; PHILLIP B. BELL, JR. THIRD-PARTY PLAINTIFFS
JUDITH SUE WEISS; PATRICIA WEISS a/k/a EDITH FLORENCE WEISS; ELLEN JANE WEISS; et al. THIRD-PARTY DEFENDANTS
O. Hickey United States District Judge.
the Court is the Motion to Dismiss Third Party Complaint of
the Weiss Defendants filed by Third-Party Defendants Judith
Sue Weiss, Patricia Weiss a/k/a/ Edith Florence Weiss, and
Ellen Jane Weiss (collectively, the “Weisses”).
(ECF No. 42). Third-Party Plaintiffs Vickie Bell; Jonathan
Bell; and Phillip B. Bell, Jr. (collectively, the
“Bells”) filed a response. (ECF No. 46). The
Weisses filed a reply. (ECF No. 55). The Court finds the
matter ripe for consideration.
5, 2017, Plaintiffs First State Insurance Company and New
England Reinsurance Corporation filed this declaratory
judgment action, seeking declarations that they have
exhausted the applicable aggregate limits of certain
insurance policies issued to Defendant Pulmosan Safety
Equipment Corporation (“Pulmosan”) and that they
have no further defense or indemnity obligations under those
insurance policies for certain products-liability lawsuits
filed against Pulmosan, including a silica-related suit
previously filed by the Bells in this Court. The Bells
answered the complaint and filed various counterclaims,
crossclaims, and third-party claims. In their responsive
pleading, the Bells, among other things, deny that the limits
of the policies issued by Plaintiffs to Pulmosan have been
exhausted and assert that Plaintiffs are liable to pay the
$1, 327, 569.00 default judgment entered in the Bell
case in favor of the Bells and against Pulmosan. The Bells
argue further that if the limits have been exhausted, they
were done so improperly and various parties-including the
Weisses-are responsible for payment of the default judgment
entered in the Bell case. Therefore, the Bells seek
declarations that Plaintiffs' insurance policies are not
exhausted; that various third-party defendant insurance
companies improperly exhausted the limit of Plaintiffs'
policies and thus should defend and indemnify said policies;
and that Pulmosan's transfer of assets to former
corporate officer Howard Weiss in 1986 was improper and thus,
the Weisses, as heirs of his estate, are responsible for
payment of the judgment against Pulmosan.
October 13, 2017, the Weisses filed the instant motion,
arguing that the Bells' third-party claims against them
should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(2) for lack of personal jurisdiction. The
Weisses also argue that the Bells' third-party claims
against Patricia Weiss should be dismissed pursuant to Rule
12(b)(5) for insufficient service of process.
Weisses ask the Court to dismiss the Bells' third-party
claims against them for lack of personal jurisdiction.
may move to dismiss claims for lack of jurisdiction over the
person. Fed.R.Civ.P. 12(b)(2). To defeat a motion to dismiss
for lack of personal jurisdiction, a plaintiff must make a
prima facie showing of jurisdiction. Bell Paper
Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir.
1994). This prima facie showing must be tested, not
by the complaint alone, but “by the affidavits and
exhibits presented with the [motion to dismiss] and in
opposition thereto.” Block Indus. v. DHJ Indus.,
Inc., 495 F.2d 256, 260 (8th Cir. 1974). If a court does
not hold a hearing on personal jurisdiction and instead bases
its determination on the parties' written submissions,
the court must view the facts in the light most favorable to
the nonmoving party. Dakota Indus., Inc. v. Dakota
Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991).
Although a plaintiff ultimately bears the burden of proof on
the issue, the plaintiff does not have to prove personal
jurisdiction by a preponderance of the evidence until trial
or an evidentiary hearing. See Id. However, when
conclusory allegations in a complaint are contested and a
plaintiff supplies no factual foundation, the complaint's
conclusory allegations are insufficient to confer personal
jurisdiction over a nonresident defendant. See Dever v.
Hentzen Coatings, Inc., 380 F.3d 1070, 1072-73 (8th Cir.
federal court sitting in diversity may assume jurisdiction
over a nonresident defendant to the extent permitted by the
forum state's long-arm statute. Arkansas's long-arm
statute provides that “[t]he courts of this state shall
have personal jurisdiction of all persons, and all causes of
action or claims for relief, to the maximum extent permitted
by the due process of law clause of the Fourteenth Amendment
of the United States Constitution.” Ark. Code Ann.
the question before the Court is whether exercising personal
jurisdiction over the Weisses is consistent with the due
process clause of the Fourteenth Amendment. The Fourteenth
Amendment permits the exercise of personal jurisdiction over
a nonresident defendant who has “certain minimum
contacts with [the forum state] 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
defendant's conduct and connection with the forum state
must be such that the defendant should “reasonably
anticipate being haled into court there.”
World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980).
are two theories for evaluating minimum contacts: general
jurisdiction and specific jurisdiction. Dever, 380
F.3d at 1073. Under the general-jurisdiction theory, the
Court may hear this lawsuit against the Weisses if they have
“continuous and systematic” contacts with
Arkansas as to render them essentially at home in Arkansas,
even if the injuries at issue in this lawsuit did not arise
out of the Weisses' activities directed at Arkansas.
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 919 (2011). In contrast, specific jurisdiction is
viable if the Weisses have purposely directed their
activities at residents of the forum state, and when the
litigation results from alleged injuries that arise out of or
relate to those activities. Wessels, Arnold &
Henderson v. Nat'l Med. Waste, Inc., 65 F.3d 1427,
1432 (8th Cir. 1995) (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985)).
theories of personal jurisdiction require some act by which
the Weisses purposely availed themselves of the privilege of
conducting activities within Arkansas, thus invoking the
benefits and protections of its laws. See Dever, 380
F.3d at 1073 (citing Hanson v. Denckla, 357 U.S.
235, 253 (1958)). If the Court determines that the Weisses
have minimum contacts with Arkansas, it may then consider
“whether the assertion of personal jurisdiction would
comport with ‘fair play and substantial
justice.'” See Id. (quoting Burger
King Corp., 471 U.S. at 476).
Eighth Circuit has instructed courts to consider the
following factors when resolving a personal-jurisdiction
inquiry, with significant weight given to the first three
factors: (1) the nature and quality of a defendant's
contacts with the forum state; (2) the quantity of such
contacts; (3) the relation of the cause of action to the
contacts; (4) the interest of the forum state in providing a
forum for its residents; and (5) the convenience of the
parties. Id. at 1073-74. The third factor is
considered only in a specific-jurisdiction analysis. See
Miller v. Nippon Carbon Co., Ltd., 528 F.3d 1087, 1091
(8th Cir. 2008). Moreover, the fourth and fifth factors
relate to the Court's consideration of “traditional
notions of fair play and substantial justice” in the
due process analysis. See Lakin v. Prudential Servs.,
Inc., 348 F.3d 704, 712 (8th Cir. 2003).
instant motion, the Weisses argue that the Court has no
personal jurisdiction- general or specific-over them and thus
ask the Court to dismiss the Bells' third-party claims
against them for lack of personal jurisdiction. The Bells
respond that the Court has personal jurisdiction over the
Weisses because: (1) the Weisses are properly joined
counterclaim defendants, and (2) the Weisses are the
successors-in-interest to Pulmosan and thus the Court's
personal jurisdiction over Pulmosan is conferred upon the
Weisses pursuant to Federal Rule of Civil Procedure
25(c). The Court will first determine whether it
has general personal jurisdiction over the Weisses, and if
not, the Court will determine whether it has specific
personal jurisdiction over the Weisses. If necessary, the
Court will then address the Bells'
counterclaim-defendants and successors-in-interest arguments.
the general-jurisdiction theory, the Court has personal
jurisdiction if the Weisses have “continuous and
systematic” contacts with Arkansas as to render them
essentially “at home” in Arkansas, even if the
injuries at issue in this lawsuit did not arise out of the
Weisses' activities directed at Arkansas.
Goodyear, 564 U.S. at 919.
Weisses argue that the Bells failed to allege any facts to
support a conclusion that the Weisses have any continuous or
systematic connection with the state of Arkansas. The Weisses
point out that the Bells' third-party complaint states
that the Weisses are residents of New York. In further
support, the Weisses offer the affidavits of Ellen Jane Weiss
and Judith Sue Weiss, each stating that they are both
residents of New York and that they have never resided in,
done business in, or been to Arkansas.
Court agrees with the Weisses that the Court has no power to
exercise general personal jurisdiction over them. Evidence
offered by the Weisses demonstrates that they are residents
of New York and that they have never lived in, done business
in, or even been to Arkansas. After the Weisses challenged
the exercise of general personal jurisdiction, the Bells have
failed to establish a prima facie case and rebut the
Weisses's assertions with testimony, affidavits, or other
documents. The Bells offer no evidence to demonstrate that
the Weisses have any presence in or contacts with Arkansas.
the Court finds that, even when viewing the facts in the
light most favorable to the Bells, the Bells have failed to
make a prima facie showing that the Weisses have
“continuous and systematic” contacts with
Arkansas to make them essentially “at home” in