United States District Court, D. Nevada
REPORT OF FINDINGS AND RECOMMENDATION
PEGGY A. LEEN, Magistrate Judge.
This matter is before the court on Defendant Automa, S.p.A.'s Motion to Quash (Dkt. #4), which the district judge referred to the undersigned for a report of findings and recommendation. The court conducted a hearing on March 20, 2014. Cal Potter and C.J. Potter appeared on behalf of the Plaintiffs, and Nathan Reinmiller appeared on behalf of the Defendant. The court has reviewed the Motion, Plaintiffs' Response (Dkt. #11), Defendant's Reply (Dkt. #14), and considered the arguments of counsel at the hearing.
A. Nature of the Case.
This is a wrongful death action brought by the estate, wife and two minor children of Benji Carrion, deceased. Mr. Carrion was an employee of Priority Plastics, a Las Vegas plastic bottle manufacturing company. His duties included operating a plastic blow mold injection machine which Plaintiffs allege was manufactured, sold, or distributed by Defendant Automa, S.p.A. Mr. Carrion's head was crushed by the machine on July 1, 2010, while attempting to remove purged plastic from it.
B. Procedural History of the Case.
The complaint was initially filed in state court June 27, 2012. An amended complaint was filed on October 2, 2012, and a second amended complaint was filed March 26, 2013. This case was removed (Dkt. #1) December 18, 2013, by Automa which was not served with the complaint until November 28, 2013. Plaintiffs have asserted claims for: (1) strict products liability; (2) negligence; (3) breach of express and implied warranties; (4) oppression and malice, express or implied; and alter ego liability. Prior to removal, the assigned state judge granted three ex parte applications to extend time to serve the Defendant, and service was eventually effected 519 days after the complaint was filed.
C. The Motion to Quash.
In the current motion, Automa seeks to quash service on personal jurisdiction and timeliness grounds. Automa argues that Nevada may not constitutionally exercise personal jurisdiction over it because it lacks both specific personal jurisdiction, and general personal jurisdiction over it. The Plaintiffs have the burden of establishing specific jurisdiction, and cannot establish Defendant either purposefully directed activities toward Nevada, or purposefully availed itself of the Nevada forum. Automa argues that the Plaintiffs' claims do not arise out of or relate to Automa's forum related activities and that Nevada's exercise of personal jurisdiction is unreasonable and would violate the Due Process Clause of the Fourteenth Amendment. Specific personal jurisdiction does not exist because the Plaintiffs' claims do not arise out of Automa's conduct in Nevada, and the machine's presence in Nevada is insufficient to confer specific jurisdiction. Automa also contends general personal jurisdiction does not exist because Plaintiffs cannot establish that its contacts with Nevada are so "continuous and systemic" to render Automa "essentially at home in the forum state." Automa is an Italian corporation, does not avail itself of the privileges and benefits of Nevada, does not directly solicit business in Nevada, and does not regularly sell its products in Nevada or to entities that serve the Nevada market.
Automa also argues that service of process is deficient because Plaintiffs took 519 days to serve summons and complaint. Because the case was filed in state court, Nevada Rule of Civil Procedure 4(i) required service within 120 days of the date the complaint was filed on June 27, 2012. Nevada Rule of Civil Procedure 4(i) requires dismissal of any Defendant not served within 120 days after the filing of the complaint, "unless the party on whose behalf such service was required files a motion to enlarge the time for service and shows good cause why such service was not made within that period." Plaintiffs filed three ex parte applications to enlarge the time for service which were granted by the state district judge. However, Defendant argues that the applications did not establish, and the state judge did not find, good cause for enlarging the time for service.
D. Plaintiffs' Response.
Plaintiffs oppose the motion arguing Automa has purposefully availed itself of the Nevada forum and has sufficient minimum contacts with Nevada that exercising personal jurisdiction over it does not offend traditional notions of fair play and substantial justice. Plaintiffs contend that Automa has personally availed itself of the privilege of conducting activities in Nevada, and has thus invoked the benefits and protections of Nevada state laws. It has therefore submitted to personal jurisdiction. Citing J. McIntyre Mach., Ltd. v. Nicastro, 131 S.Ct. 2780, 2787 (2011), Plaintiffs acknowledge that the Supreme Court has held that a manufacturer's mere act of placing a product into the stream of commerce is insufficient, and that a manufacturer's contacts must be purposefully directed at the forum state to establish personal jurisdiction against it. However, Plaintiffs argue that in products liability cases like this one, it is the Defendant's actions, not its expectations, that empower a state to exercise personal jurisdiction over the Defendant.
Plaintiffs contend that Automa repeatedly sent agents and technicians into Nevada and "otherwise availed itself of the forum." Specifically, Automa provided maintenance tables, machine instructions, and maintenance manuals to Priority Plastics' Las Vegas, Nevada Plant Manager, Mike Fitzgerald, on December 29, 2008. Plaintiffs support this argument with the December 29, 2008 email attached as Exhibit "1" to its opposition and argue that the email demonstrates it was foreseeable to Automa that its products would be in Nevada, that it had actual knowledge of the machine's presence in Nevada, and purposefully directed specific acts toward the forum state.
Plaintiffs also argue that Automa purposefully availed itself of the benefits of the Nevada forum by sending correspondence to Priority Plastics' Las Vegas plant manager and superintendent concerning a presentation at Priority Plastics on October 27, 2009. This email is attached as Exhibit "2" to Plaintiffs' opposition. Later the same month, Automa sent correspondence soliciting business to Priority Plastics headquarters in Portland, Indiana. A copy of this correspondence is attached as Exhibit "3" to Plaintiffs' opposition. The emails, it is argued, demonstrate Automa had actual knowledge of Priority Plastics' Las Vegas facility, and therefore, the letter to the Portland, Indiana headquarters constitutes a direct solicitation to all of Priority Plastics' facilities to provide "parts, training, maintenance, and consulting services" to customers in North America.
Plaintiffs also rely on post-incident contacts with the State of Nevada to support their personal jurisdiction arguments. Representatives of Automa inspected the machine in Las Vegas, Nevada on December 14 and 15, 2010. Additionally, the reports of expert witnesses, Dr. Koppenaal and Stephen P. Andrew, demonstrate that Automa technicians were physically present in Nevada to inspect and operate the Automa machinery which killed Mr. Carrion after the accident on November 26, 2012, November 27, 2012, September 3, 2013, September 4, 2013, November 4, 2013, and November 5, 2013. The expert reports that refer to these visits are attached as Exhibits "5" and "6" to the opposition.
Plaintiffs maintain that the emails, correspondence and physical presence of Automa representatives in Las Vegas, Nevada on at least eight separate days after the accident manifest an intent by ...