Ross v. Earth Movers, LLC. ( 2023 )


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  •    IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    DERRICK J. ROSS,                        )
    )
    Plaintiff,               )
    )
    v.                                )   C.A. No. S21C-02-011 MHC
    )
    EARTH MOVERS, LLC.,                     )
    et al.                                  )
    )
    )
    Defendants.               )
    MEMORANDUM OPINION
    Submitted: November 3, 2022
    Decided: January 19, 2023
    Upon Consideration of Defendant/Third Party Defendant Oak Ridge Construction
    and Transport, Inc., Motion to Dismiss,
    GRANTED.
    Roger D. Landon, Esquire, Murphy & Landon, Wilmington Delaware. Attorney for
    Derrick J. Ross.
    William R. Adams, Esquire, Dickie, McCamey & Chilcote, P.C., Wilmington,
    Delaware. Attorney for Earth Movers, LLC.
    Sarah B. Cole, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin,
    Wilmington, Delaware. Attorney for Oak Ridge Construction and Transport, Inc.
    D. Miika Roggio, Esquire, Wilmington Delaware, Matthew Vodzak, Pro Hac Vice,
    Esquire, Philadelphia Pennsylvania. Attorneys for Allan Myers Inc., Allan Myers
    MD, Inc., Allan Myers Materials Inc., & Allan Myers Materials MD, Inc.
    CONNER, J.
    INTRODUCTION
    Defendant/Third-Party Defendant Oak Ridge Construction and Transport,
    Inc., (“Oak Ridge”) filed a Motion to Dismiss for lack of personal jurisdiction in the
    pending action of Ross v. Earth Movers, LLC. Allan Myers, Inc. (“Allan Myers”)1 a
    defendant in the matter, who is joined by Plaintiff and other Defendants, responded
    in opposition to the motion. Two reasons were advanced in opposition of the motion.
    First, they argue Oak Ridge waived the defense of personal jurisdiction. Second, the
    Court is able to exercise personal jurisdiction over Oak Ridge. The Court has
    reviewed the parties’ submissions and the relevant law. For the reasons set forth
    below, the Court finds that the defense was not waived and jurisdiction over Oak
    Ridge is improper. Accordingly, Oak Ridges’ Motion to Dismiss is GRANTED.
    FACTUAL BACKGROUND
    A. Motor Vehicle Collision
    This case centers around a motor vehicle collision that occurred on May 31,
    2020.2 At approximately 8:00 p.m. a paving project began on State Route 1.3 Leroy
    Yuman (“Yuman”) was employed as a dump truck operator for Allan Myers.4
    1
    Collectively, Allan Myers refers to Allan Myers, Inc., Allan Myers MD, Inc., Allan Myers
    Materials, Inc., and Allan Myers Materials MD, Inc.
    2
    Pl. Compl. ¶ 74.
    3
    Id.
    4
    Id. ¶ 77.
    1
    Yuman was driving a dump truck filled with asphalt from the asphalt plant in Dover,
    Delaware, to the paving project site.5 At approximately 10:25 p.m. Yuman deposited
    the load of asphalt at the paving project site.6 After depositing the asphalt, Yuman
    proceeded southbound on State Route 1 to return to the asphalt plant in Dover.7
    However, before leaving the site and entering the roadway, Yuman failed to secure
    his dump latch, leaving the dump body in a fully extended upward position.8
    While Yuman was operating the fully extended dump truck southbound on
    State Route 1, Derrick Ross was operating a 2019 GMC Yukon northbound on State
    Route 1.9 Both vehicles were nearing the Paddock Road (State Route 30) overpass.10
    At the time, Ross was driving and his three minor children were passengers in the
    vehicle.11 Yuman approached the Paddock Road overpass with the dump body fully
    extended at approximately 55-60 miles per hour.12 The extended dump body struck
    the bottom of the overpass causing it to completely detach from the truck.13 The
    dump body came to a resting point seventy feet south of the point of impact on the
    right shoulder of State Route 1.14 The dump truck itself continued southbound on
    5
    Id.
    6
    Id. ¶ 81.
    7
    Id.
    8
    Id. ¶ 85.
    9
    Id. ¶ 87.
    10
    Id.
    11
    Id. ¶ 88.
    12
    Id. ¶ 92.
    13
    Id. ¶ 93.
    14
    Id. ¶ 94.
    2
    State Route 1 crossing over both lanes into the grassy median area.15 Approximately
    two hundred ninety-five feet away from the initial impact, the dump truck then struck
    the cable barrier in the median, bounced over the cable barrier, and continued to
    travel southeast into the northbound lanes of travel on State Route 1.16
    At that same moment, Ross was traveling in the northbound lane when the
    dump truck suddenly entered his lane of travel.17 Ross attempted to brake to avoid a
    collision but was unable to due to the sudden and unexpected entrance of the dump
    truck in his lane of travel.18 The front of the dump truck struck the front of the GMC
    Yukon, pushing it backwards to a final resting place on the right shoulder of
    northbound State Route 1.19 After the impact with the GMC Yukon, the dump truck
    continued to travel eastbound off of the roadway until it ended up in an embankment
    where it struck a tree and came to a stop.20
    The impact caused the front of the GMC Yukon to be crushed, the air bags to
    deploy and the rear window to shatter.21 All passengers of the GMC Yukon were
    transported via air lift to hospitals for serious injuries.22 As a result of the collision,
    15
    Id. ¶ 95.
    16
    Id. ¶ 96.
    17
    Id. ¶ 97.
    18
    Id. ¶ 98.
    19
    Id. ¶ 99.
    20
    Id. ¶ 100.
    21
    Id. ¶ 101.
    22
    Id. ¶¶ 106-09.
    3
    Ross and his three minor children all sustained life-threating injuries requiring
    extensive medical treatment.23
    B. Oak Ridge’s Involvement
    Following some discovery, Oak Ridge was named as a third-party defendant
    and subsequently a direct defendant in the amended complaint.24 Oak Ridge
    purchased the dump truck that was involved in the collision brand new from
    Worldwide Equipment of South Carolina, Inc., on or about November 27, 2013.25
    Oak Ridge then sold the dump truck to North Carolina Kenworth, Inc. on or about
    May 30, 2018.26 North Carolina Kenworth, Inc. then transferred title of the dump
    truck to MHC Kenworth Raleigh on or about July 12, 2018.27 MHC Kenworth
    Raleigh sold the dump truck to J.R. Atkinson Co. on July 12, 2018.28 J.R. Atkinson
    Co. then sold the dump truck to Earth Movers some time in August of 2018. 29
    At some point after November 27, 2013 and prior to the collision on May 31,
    2020, the dump truck’s PTO control system was modified or altered from its original
    condition.30 These modifications are alleged to have rendered the PTO control
    23
    Id. ¶ 110.
    24
    Oak Ridge’s Mot. to Dismiss ¶ 2.
    25
    Pl. Am. Compl. ¶ 297.
    26
    Allan Myers’ Third-Party Compl. ¶ 34.
    27
    Id. ¶ 35.
    28
    Id. ¶ 36.
    29
    Id. ¶ 37.
    30
    Pl. Compl. ¶ 299.
    4
    system unsafe, dangerous, and/or defective.31 The modifications appeared to have
    removed the original PTO control system which included a control lever that
    required the operator to make a secondary action before the dump truck bed could
    lower or raise.32 The modification included removing the old, two-step system, and
    replacing it with a toggle switch which enables the operator to lower or raise the
    dump bed without a secondary action.33 It is unknown if Oak Ridge is responsible
    for the modifications to the PTO system.34
    PROCEDURAL HISTORY RELEVANT TO OAK RIDGE
    On February 2, 2022, Allan Myers filed a third-party complaint against
    multiple parties, including Oak Ridge. Plaintiff, Ross, filed an amended complaint
    on April 11, 2022, adding Oak Ridge as a direct defendant. On April 27, 2022, Oak
    Ridge filed an answer which did not raise personal jurisdiction. On May 6, 2022,
    Oak Ridge filed an amended answer which both denied personal jurisdiction and
    raised lack of jurisdiction as an affirmative defense.35
    On May 19, 2022, Oak Ridge filed a motion to dismiss for lack of personal
    jurisdiction. The Court allowed the parties to engage in jurisdictional discovery. Oak
    31
    Id. ¶ 302.
    32
    Id. ¶ 303.
    33
    Id. ¶ 304.
    34
    Oak Ridge’s Renewed Mot. to Dismiss ¶ 13.
    35
    Oak Ridge’s Am. Answer ¶ 17; p. 11 Affirmative Defense VIII.
    5
    Ridge renewed its Motion to Dismiss for lack of personal jurisdiction on August 10,
    2022.
    Allan Myers filed a response in Opposition to Oak Ridge’s Motion to Dismiss
    on September 9, 2022. The Plaintiff and other Defendants filed responses joining in
    support of Allan Myers Response.
    WAIVER OF PERSONAL JURISIDCTION DEFENSE
    As a threshold matter, Plaintiff, who joined Allan Myers’ Motion in
    Opposition, argues that Oak Ridge failed to assert the defense of lack of personal
    jurisdiction in its initial pleading and therefore waived the defense.
    In making their argument, Plaintiff relies on Hornberger Management Co. v.
    Haws & Tingle General Contractors, Inc.36 In Hornberger, the defendant filed a
    motion to dismiss on various grounds, including lack of personal jurisdiction,
    without leave of the court and over three weeks after the extended deadline for
    dispositive motions.37 The Court held that the defense of personal jurisdiction was
    waived because defendant’s conduct was inconsistent with such a defense.38 The
    Court concluded the defendant submitted to jurisdiction of the court by participating
    in an arbitration process without raising jurisdiction, filing a motion for a trial de
    36
    
    768 A.2d 983
     (Del. Super. 2000).
    37
    
    Id. at 989
    .
    38
    
    Id.
    6
    novo, entering into a case scheduling order, participating in discovery, stipulating to
    an extension of time for filing case dispositive motions and failing to file the motion
    before the deadline.39 In this case, Plaintiff contends Oak Ridge did not raise the
    defense of personal jurisdiction in its “first defensive move,”40 and therefore the
    motion to dismiss should be denied.
    Oak Ridge argues that Superior Court Civil Rule 12(h) allowed for the timely
    amended Answer asserting the affirmative defense of personal jurisdiction.41
    Additionally, Oak Ridge argues that Superior Court Civil Rule 12(f) is pertinent
    because at no time did this Court or another party involved in the matter object to
    Oak Ridge’s assertion of the personal jurisdiction defense.42
    A. Applicable Law
    Superior Court Civil Rule 12(h) states, in pertinent part:
    (h) Waiver or Preservation of Certain Defenses. (1) A defense of lack
    of jurisdiction over the person, improper venue, insufficiency of
    process, or insufficiency of service of process is waived . . . (B) if it is
    neither made by motion under this Rule nor included in a responsive
    pleading or an amendment thereof permitted by Rule 15(a) to be made
    as a matter of course.43
    39
    
    Id.
    40
    
    Id. at 988
    .
    41
    Oak Ridge’s Supplemental Reply in Supp. of Mot. to Dismiss ¶ 7.
    42
    Id. ¶ 8.
    43
    Super. Ct. Civ. R. 12(h).
    7
    Superior Court Civil Rule 15(a) states:
    (a) Amendments. A party may amend the party's pleading once as a
    matter of course at any time before a responsive pleading is served
    or, if the pleading is one to which no responsive pleading is
    permitted and the action has not been placed upon the trial calendar,
    the party may so amend it at any time within 20 days after it is
    served. Otherwise, a party may amend the party's pleading only by
    leave of court or by written consent of the adverse party; and leave
    shall be freely given when justice so requires. A party shall plead in
    response to an amended pleading within the time remaining for
    response to the original pleading or within 10 days after service of
    the amended pleading, whichever period may be the longer, unless
    the Court otherwise orders.44
    In Plummer v. Sherman,45 the Delaware Supreme Court analyzed the rules
    stated above and determined that when an answer does not raise personal
    jurisdiction, but the answer is amended within 20 days after it is served to raise
    personal jurisdiction, the defense is not waived.46
    B. Oak Ridge Did Not Waive the Defense
    Here, Oak Ridge filed their first amended answer within 20 days after it was
    served. Therefore, pursuant to Superior Court Civil Rule 15(a), Oak Ridge was not
    44
    Super. Ct. Civ. R. 15(a).
    45
    
    861 A.2d 1238
    , 1244 (Del. 2004).
    46
    Also relevant to the waiver of personal jurisdiction issue but not discussed in Plummer v.
    Sherman is Superior Court Civil Rule 12(f) which states, “(f) Motion to strike. -- Upon motion
    made by a party before responding to a pleading or, if no responsive pleading is permitted by
    these Rules, upon motion made by a party within 20 days after the service of the pleading upon
    the party or upon the Court's own initiative at any time, the Court may order stricken from any
    pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous
    matter.”
    8
    required to seek leave of the Court to amend and Oak Ridge was allowed to amend
    as a matter of course to raise personal jurisdiction. Since Oak Ridge properly
    amended their answer pursuant to Superior Court Civil Rule 15(a), under Rule
    12(h)(1), personal jurisdiction was not waived.47
    In addition, the case at hand can be differentiated from Hornberger. As
    mentioned above, the defendant in Hornberger filed their motion to dismiss for lack
    of personal jurisdiction over three weeks after the extended deadline for dispositive
    motions. The defendant also appeared to submit to personal jurisdiction by
    continually participating in Court processes. This is not the case for Oak Ridge.
    Although Oak Ridge did not initially assert lack of personal jurisdiction, they did so
    in the amended answer. Oak Ridge did not wait an extended period of time after the
    deadline, nor did it continue to participate in Court processes that would indicate
    submission to jurisdiction.
    Plaintiff emphasized the language from Hornberger that stated defendant
    must challenge personal jurisdiction when he makes his first defensive move.48 Oak
    Ridge did assert personal jurisdiction in their amended answer, as what could be
    47
    Additionally, Plaintiff’s argument that he could not have objected to Oak Ridge’s amended
    answer containing the lack of personal jurisdiction defense because Oak Ridge did so
    “unilaterally without a motion to amend” is irrelevant. Pl. Resp. in Opp’n to Oak Ridge’s
    Supplemental Reply ¶ 15. As discussed, Oak Ridge was allowed to amend once as a matter of
    course under Super. Ct. Civ. R. 15(a).
    48
    Pl. Resp. in Opp’n to Oak Ridge’s Mot. to Dismiss ¶ 15; see also Hornberger Mgmt. Co., 
    768 A.2d at 988
     (emphasis added).
    9
    considered part of their first defensive move. Since Oak Ridge properly raised the
    defense of lack of personal jurisdiction in their amended answer it was not waived.
    STANDARD OF REVIEW
    When a motion to dismiss challenges personal jurisdiction, the burden is on the
    plaintiff to show a basis for the court’s jurisdiction over the nonresident defendant.49
    This burden is satisfied by the plaintiff if they can make out a prima facie case that
    the court’s exercise of personal jurisdiction is proper.50 A two-step analysis is used
    to determine if Delaware courts can obtain personal jurisdiction. 51 First, the Court
    must consider whether jurisdiction under the Delaware Long-Arm Statute, 10 Del.
    C. § 3104, applies and then the Court must evaluate whether subjecting a defendant
    to jurisdiction in Delaware violates the due process clause of the Fourteenth
    Amendment.52 The Court views all of the factual disputes in a light most favorable
    to the plaintiff.53
    49
    Galasso v. Cont’l Bank, 
    1986 WL 7988
    , at *1 (Del. June 23, 1986).
    50
    Boone v. Oy Partek Ab, 
    724 A.2d 1150
    , 1154 (Del. Super. 1997), aff’d, 
    707 A.2d 765
     (Del.
    1998).
    51
    
    Id.
    52
    Id. at 1154-55.
    53
    Id. at 1155.
    10
    ANALYSIS
    A. Delaware Long Arm Statute
    1. General and Specific Personal Jurisdiction
    The Delaware Long Arm Statute provides when a court may exercise personal
    jurisdiction over a nonresident defendant. The statute states, in pertinent part, that
    jurisdiction is appropriate if the defendant:
    (1) transacts any business or performs any character of work or service in the
    State; (2) contracts to supply services or things in this State; (3) causes tortious
    injury in the State by an act or omission in this State; (4) causes tortious injury in
    the State or outside of the State by any act or omission outside the State if the
    person regularly does or solicits business, engages in any other persistent course
    of conduct in the State or derives substantial revenues from services, or things
    used or consumed in the State.54
    The statute can be further separated into two main categories.55 Sections 3104(c)(1),
    (c)(2), and (c)(3) are specific jurisdiction provisions.56 Section 3104(c)(4) is a
    general jurisdiction provision.57
    General jurisdiction is based on the relationship between the forum and the
    party.58 However, Allan Myers is not seeking general personal jurisdiction under
    54
    10 Del. C. § 3104(c).
    55
    Boone, 
    724 A.2d at 1155
    .
    56
    
    Id.
    57
    
    Id.
    58
    
    Id.
    11
    subsection (c)(4).59 Therefore, general personal jurisdiction need not be discussed
    further.
    Specific jurisdiction is triggered when the plaintiff’s claims arise out of acts
    or omissions, by the defendant, that take place in Delaware.60 Specific jurisdiction
    under subsections (c)(1)-(3) is not met. As stated in an affidavit by Michael
    Muckenfuss, the President of Oak Ridge, Oak Ridge is not and has never been a
    Delaware corporation or maintained a principal place of business in Delaware.61 Oak
    Ridge has no physical or mailing address, phone number, bank account, office,
    employees, or other personnel in the State of Delaware.62 It does not own, lease, use,
    or otherwise possess any office, warehouse, or other real or personal property in the
    State of Delaware.63 In addition, Oak Ridge does not sell any materials in Delaware,
    nor does it transport materials, transact, or solicit business in Delaware.64 Lastly, no
    revenue is derived from services or things consumed in Delaware.65
    Additionally, Allan Myers alleges that since Oak Ridge sold the dump truck
    to Kenworth, a multi-state dealer with a website searchable by Delaware residents,
    that Oak Ridge should have known the truck could later reach Delaware, and
    59
    Allan Myers’ Resp. in Opp’n to Oak Ridge Mot. to Dismiss at 4 n.1.
    60
    Boone, 
    724 A.2d at 1155
    .
    61
    Muckenfuss Aff. ¶¶ 2, 7.
    62
    Id. ¶ 8.
    63
    Id.
    64
    Id. ¶ 10.
    65
    Id. ¶ 11.
    12
    therefore, Oak Ridge should be subject to jurisdiction in Delaware.66 Oak Ridge
    cannot be subject to specific jurisdiction just because the company it sold the dump
    truck to has an internet presence which could have caused the dump truck to be seen
    by people in Delaware. Delaware law requires that the out-of-state defendant
    committed an act or omission in Delaware that resulted in the tortious injury. 67
    “When considering whether the defendant acted in the forum state, courts . . . require
    ‘something more’ from the defendant than ‘the knowledge that their website could
    be viewed or that their product could be used in the forum state.’”68 The defendant
    needs to target the contents of the website toward Delaware in a manner that would
    purposefully avail itself of doing business with Delaware, not just North America
    generally.69 Oak Ridge’s possible knowledge that the truck it sold to Kenworth may
    be posted on Kenworth’s website and subsequently viewed in Delaware is not
    sufficient to establish jurisdiction.70
    Therefore, Allan Myers is left with a dual jurisdiction argument to establish
    this Court can exercise personal jurisdiction over Oak Ridge.
    66
    Allan Myers’ Resp. in Opp’n to Oak Ridge’s Mot. to Dismiss at 5 n.2 & ¶ 13.
    67
    Rotblut v. Terrapinn, Inc., 
    2016 WL 5539884
    , at *6 (Del. Super. Sept. 30, 2016).
    68
    Id. at *5.
    69
    Id. at *6.
    13
    2. Dual Jurisdiction
    The Delaware Supreme Court first recognized dual jurisdiction in 1986.
    Several cases have since expanded upon the notion of dual jurisdiction. When a dual
    jurisdiction argument is advanced, the Court examines jurisdiction under both 10
    Del. C. §3104(c)(1) and (c)(4). The Court in LaNuova D & B, S.p.A v. Bowe Co.,
    Inc., explained in dicta, “. . . [a] tort claim could enjoy a dual jurisdictional basis
    under (c)(1) and (c)(4) if the indicia of activity set forth under (c)(4) were sufficiently
    extensive to reach the transactional level of (c)(1) and there was a nexus between the
    tort claim and transaction of business or performance of work.”71
    Our Courts have broadly construed jurisdiction to the maximum extent
    possible to protect the citizens of Delaware. “In fact, the only limit placed on § 3104
    is that it remain within the constraints of the Due Process Clause.” 72 So, when a
    defendant has sufficient contacts with Delaware and the plaintiffs’ claim arises out
    of those contacts, dual jurisdiction is appropriate.73 When analyzing if dual
    jurisdiction is satisfied, the court looks to whether there was an intent or purpose on
    the part of the defendant to serve the Delaware market.74 If the intent to serve the
    71
    LaNuova D&B, S.p.A. v. Bowe Co., Inc., 
    513 A.2d 764
     n.3 (Del. 1986).
    72
    Boone, 
    724 A.2d at 1157
    .
    73
    
    Id.
    74
    
    Id. at 1158
    .
    14
    Delaware market results in the introduction of a product to Delaware and the cause
    of action arises from an injury caused by that product, dual jurisdiction is satisfied.75
    In Boone v. Oy Partek Ab, the Court held that the long arm statute was
    satisfied via § 3104(c)(1) and (c)(4) because the defendant solicited business from
    all fifty states, including Delaware.76 Shipments of up to fifty tons of asbestos
    entered Delaware monthly for ten years and caused injury to the plaintiff. 77 As a
    result of the shipments, the defendant obtained approximately $270,000 in revenue
    from the sale of asbestos to Delaware.78 The Court reasoned that not only did the
    defendant implicitly solicit business from Delaware, it also derived substantial
    revenue from Delaware in a persistent course of conduct.79
    The Court in Diaz Cardona v. Hitachi Koki Co., LTD, also found dual
    jurisdiction was satisfied.80 In Diaz Cardona, the defendant set up a Delaware
    corporation as its exclusive U.S. distribution site for the purpose of selling products
    in the states, including Delaware.81 This established an intent to serve Delaware.82
    Although there was no specific data regarding the sale of the defendant’s nail guns
    75
    Id.
    76
    Id.
    77
    Id.
    78
    Id.
    79
    Id.
    80
    Diaz Cardona v. Hitachi Koki Co., Ltd., 
    2019 WL 449698
    , at *4 (Del. Super. Feb. 5, 2019).
    81
    
    Id.
    82
    
    Id.
    15
    in each state, the fact that it was a mass marketed and mass produced consumer
    product offered for sale through Lowes stores supported a strong inference that
    significant amounts had been sold in every state, including Delaware.83 Since the
    plaintiff was injured using one of the nail guns in Delaware, that was also sold in
    Delaware, the Court held that the case satisfied the dual jurisdiction requirements.84
    In this case, there is a complete lack of evidence that Oak Ridge does or
    solicits business in Delaware, engages in any other course of conduct in Delaware,
    or derives substantial revenue from things used or consumed in Delaware. Not only
    is there no “persistent course of conduct in Delaware,”85 there is no conduct directed
    at or in Delaware at all.
    The case that is most analogous to Oak Ridge’s connections, or lack thereof,
    with Delaware is Fischer v. Hilton.86 Although decided before dual jurisdiction was
    recognized, it was analyzed in the same manner, using both § 3104(c)(1) and (c)(4).
    Fischer involved the sale of a truck from a seller in Ohio to a buyer in Delaware.87
    The defendant seller neither conducted nor solicited any other business in
    Delaware.88 The Court held that the sale of one truck, which would ultimately end
    83
    Id.
    84
    Id.
    85
    10 Del. C. § 3104(c)(4).
    86
    
    549 F. Supp. 389
     (D. Del. 1982).
    87
    
    Id. at 390
    .
    88
    
    Id. at 391
    .
    16
    up in Delaware, was not enough to satisfy the jurisdictional requirements. 89 “The
    nonresident must regularly do or solicit business, or engage in a persistent course of
    conduct.”90
    Here, Oak Ridge had no way of knowing the truck would ultimately be used
    in Delaware. And to reiterate, Oak Ridge did not regularly do business or engage in
    persistent conduct in Delaware. Specific, general, and dual jurisdiction are not met
    under Delaware’s Long Arm Statute.
    B. Constitutional Analysis
    Even if the requirements of the Long Arm Statute were met, due process
    considerations would preclude the exercise of jurisdiction. The second step in the
    personal jurisdictional analysis is the Due Process requirement. This step is further
    broken down into two prongs, minimum contacts and fairness.
    1. Minimum Contacts
    The first prong of the constitutional analysis is determining whether Oak
    Ridge engaged in minimum contacts with Delaware. In other words, did Oak Ridge
    89
    
    Id. at 392
    .
    90
    
    Id.
    17
    act in a manner to purposefully avail itself of the privilege of conducting activities
    within Delaware.91
    A state court is able to exercise personal jurisdiction over a nonresident
    defendant as long as minimum contacts exist between the defendant and the forum
    state.92 Due process does not allow a court to issue a binding judgment in personam
    against a defendant with which the state has no contacts, ties, or relations.93 The
    concept of minimum contacts “protects the defendant against the burdens of
    litigating in a distant or inconvenient forum. And it acts to ensure that the States
    through their courts, do not reach out beyond the limits imposed on them by their
    status . . . .”94
    In determining whether there are minimum contacts, the courts look to see if
    there is a substantial connection between the defendant and the forum state. The
    contacts must come by actions of the defendant purposefully directed towards the
    forum state. Conduct between the defendant and forum state includes but is not
    limited to performing services in the forum state, soliciting business either through
    salespersons in the forum state or advertising reasonably calculated to reach the
    91
    World-Wide Volkswagen Corp. v. Woodson, 
    444 U.S. 286
    , 297 (1980)(citing Hanson v.
    Denckla, 
    357 U.S. 235
    , 253 (1958)).
    92
    Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 
    326 U.S. 310
    ,
    316 (1945).
    93
    
    Id. at 319
    .
    94
    World-Wide Volkswagen Corp., 
    444 U.S. at 292
    .
    18
    forum state, making regular sales to residents of the forum state, and seeking to serve
    the forum state’s market.95
    World-Wide Volkswagen Corp. v. Woodson provides the Court with a basis
    for what equates to minimum contacts. In World-Wide Volkswagen Corp. a products
    liability suit was instituted in an Oklahoma state court by the plaintiffs for personal
    injuries that were sustained in Oklahoma after an automobile accident.96 An Audi
    was purchased by the plaintiffs in New York while they were residents of New
    York.97 After a year of owning the Audi in New York, the plaintiffs moved from
    New York driving the Audi to their new home in Arizona.98 On the way to Arizona
    the plaintiffs were passing through Oklahoma when another car struck the rear of
    their Audi causing a fire which severely injured the plaintiffs.99
    The Supreme Court found that there was a total absence of the affiliating
    circumstances that are necessary to exercise state-court jurisdiction.100 The
    defendants engaged in no activity whatsoever in Oklahoma.101 The defendants did
    not close sales, perform services, solicit business, nor advertise in a manner
    95
    
    Id. at 286-87
    .
    96
    
    Id. at 287
    .
    97
    
    Id.
    98
    
    Id. at 288
    .
    99
    
    Id.
    100
    
    Id. at 295
    .
    101
    
    Id.
    19
    reasonably calculated to reach Oklahoma.102 They availed themselves of none of the
    privileges and benefits of Oklahoma law.103 Jurisdiction could not be established on
    one isolated occurrence of a single Audi being sold in New York to New York
    residents that happened to suffer an accident while passing through Oklahoma.104
    The Court surmised it may be foreseeable the Audi would end up in Oklahoma
    because it is designed to move about roadways, but that is not enough.105
    “Foreseeability alone has never been a sufficient benchmark for personal jurisdiction
    under the Due Process Clause.”106 However, foreseeability is not entirely
    irrelevant.107 “[T]he foreseeability that is critical to due process analysis is not the
    mere likelihood that a product will find its way into the forum State. Rather, it is that
    the defendant’s conduct and connection with the forum State are such that he should
    reasonably anticipate being hauled into court there.”108 The Court held that the
    defendants had no contacts, ties, or relations with Oklahoma.109 Since there was no
    purposeful availment on behalf of the defendants, it was not reasonable for them to
    foresee being subject to suit in Oklahoma, therefore jurisdiction was not proper.110
    102
    
    Id.
    103
    
    Id.
    104
    
    Id.
    105
    
    Id.
    106
    
    Id.
    107
    
    Id. at 297
    .
    108
    
    Id.
    109
    
    Id. at 299
    .
    110
    
    Id. at 297
    .
    20
    It is clear, based on this record, Oak Ridge did nothing that could be construed
    as purposefully availing itself of the privilege of conducting business in Delaware,
    thus invoking the benefits and protections of Delaware’s laws.111 This Court would
    exceed the limits of due process if it were to exercise jurisdiction over Oak Ridge.
    2. Fairness
    Although this Court has found that Oak Ridge is not subject to personal
    jurisdiction from either the Delaware Long Arm Statute, or the minimum contacts
    requirement, the Court will briefly discuss the second prong of the due process
    analysis.
    Not only does a defendant have to have minimum contacts with the forum
    state to satisfy the due process analysis, but those contacts also must be “such that
    the maintenance of the suit does not offend traditional notions of fair play and
    substantial justice.”112
    The Court weighs several factors in determining if jurisdiction is fair under
    the due process clause. The burden on the defendant is always a primary concern.113
    However that burden is weighed with the other factors. These factors include: “[t]he
    forum State’s interest in adjudicating the dispute; the plaintiff’s interest in obtaining
    111
    Hanson v. Denckla, 
    357 U.S. at 253
    .
    112
    Int'l Shoe Co., 
    326 U.S. at 316
    .
    113
    World-Wide Volkswagen Corp., 
    444 U.S. at 292
    .
    21
    convenient and effective relief . . .; the interstate judicial system’s interest in
    obtaining the most efficient resolution of controversies; and the shared interest of
    several States in furthering substantive social policies.”114
    Oak Ridge will suffer from the burden of having to litigate in a Delaware court
    when they are entirely based in South Carolina. In addition, the simple act of selling
    a truck in South Carolina to a North Carolina company, which is then involved in an
    auto accident in Delaware years later does not mean Oak Ridge could or should have
    reasonably foreseen being hauled into court in Delaware. Also, there still has not
    been confirmation as to when the modifications to the dump truck’s PTO system
    were made, meaning no party is even remotely certain that it was Oak Ridge who
    made the modifications. It is entirely unreasonable to expect Oak Ridge to defend
    itself in a Delaware court when they have no purposeful or continuous contacts and
    have not even been proven as the company who made the alleged hazardous
    modifications. If any party wishes to proceed against Oak Ridge they are not
    precluded from doing so in a South Carolina court.
    114
    
    Id.
     (citations omitted).
    22
    CONCLUSION
    For the reasons set forth above Defendant Oak Ridge’s Motion to Dismiss is
    GRANTED.
    IT IS SO ORDERED.
    /s/ Mark H. Conner
    Mark H. Conner, Judge
    cc: Prothonotary
    23