United States District Court, S.D. Ohio, Eastern Division
Chelsey M. Vascura, Magistrate Judge
OPINION AND ORDER
D. MORRISON, UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendant Dutch Miller
Chrysler/Jeep/Ram's Motion to Dismiss Plaintiff's
Complaint for Lack of Personal Jurisdiction or, in the
Alternative, for Transfer of Venue (ECF No. 11),
Plaintiff's Response in Opposition to Defendant's
Motion to Dismiss (ECF No. 12), and Defendant's Reply in
Support of its Motion to Dismiss (ECF No. 13). For the
reasons that follow, the Court GRANTS
Defendant's Motion and TRANSFERS the
case to the United States District Court for the Southern
District of West Virginia, Charleston Division.
is no real dispute as to the facts relating to jurisdiction.
Plaintiff Reg Transport Services, LLC
(“Plaintiff”) has its principle place of business
in Fairfield County, Ohio. (Compl., ¶ 2, ECF No. 4).
Defendant Dutch Miller Chrysler/Jeep/Ram
(“Defendant”) is a licensed automobile dealer in
West Virginia with its principle place of business in South
Charleston, West Virginia. (Id. ¶ 3; Def. Ex. A,
Wood Affidavit, ¶ 2, ECF No. 11-2). In addition to
providing general contact information and the company's
history, Defendant's website states that it
“proudly serve[s] the Tri-State.” (Pl. Ex. 3,
Website, ECF No. 12-4).
has never been an Ohio corporation and has never been
licensed or authorized to do business in Ohio. (Wood Aff.,
¶ 3). Defendant has never maintained an office in Ohio,
employed a sales force in Ohio, maintained an agent for
service of process in Ohio, paid taxes in Ohio, employed
anyone in Ohio for any purpose, maintained corporate records
in Ohio, held an Ohio license, owned or leased personal
property in Ohio, or maintained any office, equipment, bank
account, telephone number, or other tangible asset in Ohio.
(Id. ¶ 4). Since Defendant's incorporation
in April 2014, most of the dealership's gross revenue and
net profits have come from the sale of vehicles to West
Virginia residents. (Id. ¶ 6). Defendant
acknowledges that while it has sold vehicles to residents of
other states, including Ohio, revenue and profits from such
sales have always been “de minimus.”
(Id.). Regardless, all vehicles sold and leased by
Defendant are purchased and delivered to buyers in West
April 2018, Plaintiff's representative, Shirley
Vernon-who had previous experience purchasing from Dutch
Miller-reached out to Defendant by telephone to inquire about
the purchase of a refrigerated commercial vehicle for
Plaintiff's business. (Compl., ¶ 9; Wood Aff.,
¶ 7; Pl. Ex. 1, Vernon Affidavit, ¶ 3, ECF No.
12-1). Discussions between the parties resulted in Defendant
agreeing to work with a third party suggested by Plaintiff,
Thermo King,  to upfit a 2018 Dodge Ram Promaster 2500
cargo van with specific FDA compliant refrigeration
requirements. (Compl., ¶¶ 9-12; Wood Aff., ¶
8). Thermo King is a foreign corporation authorized to do
business in Virginia. (Wood Aff., ¶ 9).
April 21, 2018, Plaintiff entered into an installment sale
contract to purchase the upfitted van from Defendant at the
dealership in West Virginia. (Compl., ¶ 14). According
to Plaintiff, Defendant was aware that the van was ultimately
going to be used for business in Ohio. (Id. ¶
15). On May 25, 2018, a representative of Plaintiff picked up
the upfitted van from the Thermo King facility in Charleston,
West Virginia. (Wood Aff., ¶ 12). Shortly after leaving
Thermo King, Plaintiff's representative called Defendant
to express dissatisfaction with the upfit work.
(Id.). According to Plaintiff, the upfit work done
was “substandard, shoddy and done in an unworkmanlike
manner.” (Compl., ¶ 17). Plaintiff alleges this
discovery occurred once the upfitted van was back in Ohio.
(Id.). Upon confronting Defendant about the work
done over the phone, Defendant assured Plaintiff it would fix
the problems and arranged for Plaintiff to bring the van back
down to West Virginia. (Id. ¶ 18; Wood Aff.,
¶ 13). On May 30, Plaintiff's representative drove
the vehicle to Thermo King's facility in West Virginia,
but for reasons unknown to Defendant nothing occurred to
reconcile the issues. (Wood Aff., ¶ 14).
September 6, 2018, Plaintiff filed a complaint in the Court
of Common Pleas in Fairfield County alleging claims for (1)
breach of contract; (2) negligence; (3) fraud and
misrepresentation; (4) restitution; and (5) unreasonable
delay. (ECF No. 4). On October 3, 2018, Defendant removed the
case to this Court pursuant to 28 U.S.C. § 1332. (ECF
No. 1). Defendant filed its Answer the next day. (ECF No. 5).
December 14, 2018, Defendant moved to dismiss the Complaint
for lack of personal jurisdiction, or in the alternative, for
transfer of this case to the United States District Court for
the Southern District of West Virginia. (ECF No. 11).
Plaintiff filed its Memorandum in Opposition on December 23.
(ECF No. 12). Defendant filed its Reply on January 6, 2019.
(ECF No. 13). Defendant's Motion to Dismiss is now ripe
STANDARD OF REVIEW
has the burden of proving personal jurisdiction.
Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th
Cir. 1991). “[I]n the face of a properly supported
motion for dismissal, the plaintiff may not stand on his
pleadings but must, by affidavit or otherwise, set forth
specific facts showing that the court has
jurisdiction.” Id. If the Court rules on a
Federal Rule of Civil Procedure 12(b)(2) motion prior to
trial, “it has the discretion to adopt any of the
following courses of action: (1) determine the motions based
on affidavits alone; (2) permit discovery, which would aid in
resolution of the motion; or (3) conduct an evidentiary
hearing on the merits of the motion.” Intera Corp.
v. Henderson, 428 F.3d 605, 614 n.7 (6th Cir. 2005).
“[T]he decision whether to grant discovery or an
evidentiary hearing before ruling on a 12(b)(2) motion is
discretionary.” Burnshire Dev., LLC v. Cliffs
Reduced Iron Corp., 198 Fed.Appx. 425, 434 (6th Cir.
2006). Here, neither side has requested further discovery or
an evidentiary hearing, and the Court concludes that neither
is necessary in order to rule on Defendant's Motion.
court resolves a Rule 12(b)(2) motion based on “written
submissions and affidavits . . . rather than resolving the
motion after an evidentiary hearing or limited discovery, the
burden on the plaintiff is ‘relatively slight,' . .
. and ‘the plaintiff must make only a prima
facie showing that personal jurisdiction exists in order
to defeat dismissal.'” Air Prods. &
Controls, Inc. v. Safetech Int'l, Inc., 503 F.3d
544, 549 (6th Cir. 2007) (quoting Am. Greetings Corp. v.
Cohn, 839 F.2d 1164, 1169 (6th Cir. 1988) and
Theunissen, 935 F.2d at 1458). Similarly, in the
absence of an evidentiary hearing, a court will generally
apply a prima facie standard weighing the evidence
in the light most favorable to the plaintiff. Dean v.
Motel 6 Operating L.P., 134 F.3d 1269, 1272
(6th Cir. 1998); see also CompuServe, Inc. v.
Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996)
(“[A] court disposing of a 12(b)(2) motion does not
weigh the controverting assertions of the party seeking
dismissal . . . because we want to prevent nonresident
defendants from regularly avoiding personal jurisdiction
simply by filing an affidavit denying all jurisdictional
facts.” (internal quotations and emphasis omitted)).
But the Court may consider a defendant's undisputed
factual assertions. Conn v. Zakharov, 667 F.3d 705,
711 (6th Cir. 2012). Moreover, where “there does not
appear to be any real dispute over the facts relating to
jurisdiction, the prima facie proposition loses some of its
significance.” Id. (internal quotations
support of its Motion, Defendant filed several contract
documents (ECF No. 11-3 through 11-7) and an affidavit of
Roger Wood, General Sales Manager of Dutch Miller (ECF No.
11-2). Plaintiff countered with an affidavit of Shirley
Vernon, a representative of Reg Transport (ECF No. 12-1),
Rebecca Giligan, a former customer of Dutch Miller (ECF No.