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Date: 02-10-2023
Case Style:
David Osburn v. Ardmore Suzuki, Inc., d/b/a Jones Power Sports
Case Number: 6:21-cv-234
Judge: John W. Broomes
Court: United States District Court for the Eastern District of Oklahoma (Muskogee County)
Plaintiff's Attorney:
Defendant's Attorney: Tim N. Creek and Tyler J. Coble
Description: Muskogee, Oklahoma personal injury lawyers represented Plaintiff who sued defendant on a product liability theory claiming to have suffered more than $75,000 in damages as a direct result of a defective and unreasonably dangerous product designed, manufactured and/or sold by Defendant.
This was a products liability case wherein Plaintiff, a resident of Gun Barrel City, Texas, alleges he was severely injured when the Polaris Ranger XP 1000 all-terrain vehicle (“Polaris Ranger”) he was operating caught fire. Polaris is the manufacturer of the Polaris Ranger, and Suzuki is the dealer who sold the Polaris Ranger to Plaintiff. Polaris is a Delaware corporation with its principal place of business in Minnesota. (Doc. 2 at 2.) Suzuki is incorporated and has its principal place of business in Oklahoma. (Doc. 26 at 1; Doc. 2 at 2.) Plaintiff does not specify where in Texas the accident occurred, but Polaris states that it occurred at River Run Park in Cherokee County, Texas. (Doc. 14-1 at 1.) Plaintiff does not dispute this.
On August 9, 2021, Plaintiff filed this action in the District Court of Bryan County, Oklahoma. (Doc. 2-1 at 2.) Plaintiff brought claims for strict liability, negligence, breach of warranty, and misrepresentation against both Defendants. The claims against Polaris virtually mirrored those against Suzuki. Plaintiff alleged that the Polaris Ranger was “designed, manufactured, marketed and placed into the stream of commerce” by Polaris “in a defective and unreasonably dangerous condition.”[1](Doc. 2-1 at 3.) Plaintiff further alleged that Suzuki knew the Polaris Ranger was defective and unreasonably dangerous, but marketed, sold, and delivered it to Plaintiff anyway. (Id. at 3-4.) Finally, Plaintiff alleged that the Polaris Ranger “was in the same or substantially the same condition as it was when it left Defendant Polaris' and Defendant Suzuki's possession.” (Id. at 4.)
Also on August 9, the Bryan County Court Clerk issued the summons for Polaris and Suzuki. (Doc. 2-2.) On August 11, before either Defendant had been served, Polaris filed a Notice of Removal. (Doc. 2.) Polaris removed the case pursuant to 28 U.S.C. §§ 1332, 1441, and 1446 “because this action is a civil dispute involving completely diverse parties and an amount in controversy exceeding $75,000.” (Id. at 1.) On August 12, 2021, Plaintiff's counsel states that she received the summons and file-marked petition and commenced the process of serving Defendants. (Doc. 13-1.) Polaris filed its answer on September 9, 2021. (Doc. 10.) On September 10, Plaintiff filed a motion to remand the case back to the district court of Bryan County, Oklahoma. (Doc. 13.) Plaintiff contends that the forum-defendant rule prohibits removal when a resident defendant (i.e., Suzuki) has been properly joined and served, even if there is complete diversity of citizenship. (Id. at 4.)
Also on September 10, Polaris filed its motion to transfer venue to the Eastern District of Texas. (Doc. 14.) Polaris contends that the forum-defendant rule does not apply here, and removal was therefore proper, because the action was removed before Suzuki was served. (Doc. 14 at 2.) However, Polaris argues that the case should be transferred to the Eastern District of Texas as Oklahoma has no interest in adjudicating this dispute. (Id. at 9.) Polaris contends that the only connection to Oklahoma is the allegation that Suzuki, an Oklahoma corporation, sold the Polaris Ranger to Plaintiff. But according to Polaris, Suzuki was fraudulently joined in order to bring the case in Oklahoma and to prevent removal to federal court. In support, Polaris cites an Oklahoma law that prohibits most products liability actions against non-manufacturing sellers, as well as the petition's sparse allegations against Suzuki that largely overlap with those against Polaris. (Id. at 2.)
On December 21, 2021, the then-assigned district judge entered an order stating: “[p]ursuant to Rule 4(m) of the Federal Rules of Civil Procedure, notice is hereby given that the claims against Defendant Ardmore Suzuki, Inc. shall be dismissed for failure to serve if proof of service is not filed by 1/21/2022.” (Doc. 19.) On December 27, 2021, Plaintiff filed a proof of service, which stated that Suzuki was served with the petition and summons on August 19, 2021. Attached is a return receipt, indicating that the package was addressed to: “Ardmore Suzuki, Inc., Dba Jones Power Sports, c/o David Jones, 9416 U.S. HWY 70, Durant, OK 74701.” (Doc. 20-1.) The return receipt contains a section captioned “complete this section on delivery.” In that section, “HCC19HC63” was handwritten on the signature line,[2]“David Jones” was handwritten on the “received by (printed name)” line, “8-19” was provided as the date of delivery, and a box was checked indicating that the delivery address was different from what the article was addressed to (but no other address was provided). (Id.) The return receipt reflects that Plaintiff had delivery completed via certified mail, restricted delivery. (Id.)
On January 3, 2022, Suzuki moved to dismiss under Rule 12(b)(5) for failure to properly effect service and 12(b)(6) for failure to state a claim. (See Doc. 24 at 1-2.) Suzuki first argued that Plaintiff's proof of service failed to comply with Oklahoma law as it was not signed by anyone. (Id. at 4-5.) Suzuki further argued that the petition failed to state a claim as it offered “few facts about the accident, any defect, or what Suzuki, which sold the Polaris ATV, did to purportedly incur liability for selling an allegedly defective product that it did not design or manufacture.” (Id. at 1.) And Suzuki also argued that Plaintiff's claims against Suzuki were all product liability claims that are barred against non-manufacturing product sellers by Oklahoma law. Also on January 3, the then-assigned judge entered an order inviting Plaintiff, if he so desired, to file an amended complaint by January 17, 2022, providing additional factual averments which might overcome Suzuki's claims of insufficiency. (Doc. 25.)
On January 10, Plaintiff had the state-court issued summons and Petition personally served upon David Jones, Suzuki's registered agent, as well as Zack Leatherwood, Suzuki's general manager. (Doc. 27-6.) Such personal service occurred 152 days after this action was removed to this court.
On January 17, Plaintiff filed an amended complaint, which includes some additional factual allegations specific to Suzuki. (Doc. 26.) Specifically, the amended complaint alleges that Suzuki performed “dealer preparations, inspections, certifications, service, and maintenance” on the Polaris Ranger before selling it to Plaintiff. (Id. at ¶ 6.) “[O]ne or more of the dealer preparations . . . performed by Defendant Suzuki included installation/modification of the lighting and/or electrical systems of the Polaris Ranger.” (Id.) The amended complaint alleges that these installations/modifications were a “substantial factor in causing the September 4, 2019, incident and damages to Plaintiff and/or the proximate and/or producing cause of the September 4, 2019, incident and damages to Plaintiff, thus rendering Defendant Suzuki strictly liable.” (Id. at ¶ 19.) The amended complaint brings the same claims of strict liability, negligence, breach of warranty, and misrepresentation against both Defendants.
On January 31, Suzuki filed a second motion to dismiss. (Doc. 29.) Suzuki raises essentially the same arguments as it did in its original motion to dismiss. According to Suzuki, “[n]either the filing of Plaintiff's amended pleading nor his new attempt at service has remedied the issues presented in Suzuki's first Motion.” (Id. at 1.)...
Osburn v. Ardmore Suzuki, Inc. (E.D. Okla. 2023)
Outcome: IT IS THEREFORE ORDERED that Plaintiff's motion to remand (Doc. 13) is DENIED.
IT IS FURTHER ORDERED that Suzuki's motion to dismiss (Doc. 29) is GRANTED. Plaintiff's claims against Suzuki are DISMISSED without prejudice for lack of subject-matter jurisdiction.
IT IS FURTHER ORDERED that Polaris's motion to transfer venue (Doc. 14) is GRANTED. The Clerk is directed to take all appropriate steps necessary to transfer this action to the United States District Court for the Eastern District of Texas, Tyler Division.
IT IS SO ORDERED. Dated this 10th day of February, 2023.
Osburn v. Ardmore Suzuki, Inc. (E.D. Okla. 2023)
Plaintiff's Experts:
Defendant's Experts:
Comments: