United States District Court, D. South Dakota, Central Division
OPINION AND ORDER GRANTING MOTION TO DISMISS WITHOUT
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Lacey Caffee (Caffee) sued Defendant Accelerated Genetics and
Nebraska Bull Service, a division of Accelerated Genetics
(Accelerated Genetics) invoking 28 U.S.C. § 1332(a)(1),
diversity of citizenship jurisdiction. Doc. 1 at ¶ 1.
Caffee is a self-employed photographer living in Jerauld
County, South Dakota. Doc. 1 at ¶ 3. Accelerated
Genetics is a Wisconsin corporation with its principal place
of business in Baraboo, Wisconsin. Doc. 1 at ¶ 4; Doc. 8
at ¶¶ 3-4. Caffee claims that she was injured on
May 5, 2014, while photographing bulls at the Nebraska Bull
Service division of Accelerated Genetics in or near McCook,
Nebraska, Doc. 1 at ¶¶ 7-9, and brings a negligence
claim seeking medical expenses, lost income, pain and
suffering, loss of enjoyment of life, and other damages, Doc.
1 at ¶¶ 11-21.
January 25, 2017, Accelerated Genetics filed a Motion to
Dismiss Plaintiffs Complaint Pursuant to Fed.R.Civ.P.
12(b)(2) and 12(b)(3), a brief in support of the motion, and
an affidavit of Don Trimmer, a vice president of a division
of Accelerated Genetics. Docs. 6, 7, 8. Under Civil Local
Rule 7.1.B, Caffee had "21 calendar days after service
of [Accelerated Genetics' motion papers by which Caffee]
must serve and file a responsive brief containing opposing
arguments and authorities in support thereof." D.S.D.
Civ. LR 7. LB. Caffee has not opposed the motion to dismiss
or filed anything since the day her complaint was filed.
Genetics seeks dismissal based on a lack of personal
jurisdiction over it in South Dakota. As mentioned,
Accelerated Genetics submitted an affidavit to provide the
facts on which it relies in arguing an absence of personal
jurisdiction. When, as here, a "court limits its review
of a Rule 12(b)(2) motion solely to affidavits and other
written evidence, the plaintiff 'need only make a prima
facie showing of [personal] jurisdiction.'"
Hvlland v. Flaum, No. 16-CV-4060-RAL, 2016 WL
6901267, at *2 (D.S.D. Nov. 22, 2016) (quoting Dakota
Indus.. Inc. v. Dakota Sportswear. Inc.. 946 F.2d 1384,
1387 (8th Cir. 1991)) (alteration in original).
"Although the evidentiary showing required at the prima
facie stage is minimal, the showing must be tested, not by
the pleadings alone, but by the affidavits and exhibits
supporting or opposing the motion." K-V Pharm. Co.
v. J Uriach & CIA. S.A.. 648 F.3d 588, 592 (8th Cir.
2011) (internal quotation marks and citations omitted). On
such a motion this Court construes the evidence the parties
submitted in the light most favorable to the party asserting
jurisdiction and resolves all factual disputes in her favor.
Id; Hylland, 2016 WL 6901267, at *2. Because the
affidavit of Don Trimmer is uncontroverted, this Court is
left with taking the facts relevant to this motion from that
affidavit and from the complaint itself.
Breeders Cooperative, d/b/a Accelerated Genetics is a
Wisconsin corporation with its headquarters and principal
place of business in Baraboo, Wisconsin. Doc. 8 at
¶¶ 3-4. Accelerated Genetics' business model
focuses on purchasing bulls, collecting semen, and marketing
it for sale to ranchers, farmers, and dairy producers to
inseminate their cows. Doc. 8 at ¶ 5. Accelerated
Genetics uses independent contractors to sell bull semen for
them throughout the world, including in the state of South
Dakota. Doc. 8 at ¶ 8. However, Accelerated Genetics
does not have offices, employees, or bank accounts in South
Dakota. Doc. 8 at ¶ 6. Nor does Accelerated Genetics
design or manufacture any products in South Dakota. Doc. 8 at
¶ 7. Nebraska Bull Service is a division of Accelerated
Genetics, which collects, stores, and ships bull semen along
with housing bulls. Doc. 8 at ¶ 9. The Nebraska Bull
Service division of Accelerated Genetics is located in
McCook, Nebraska. Doc. 8 at ¶ 10. The Nebraska Bull
Service houses bulls for producers from South Dakota and
ships semen to breeders residing in South Dakota. Doc. 8 at
¶ 11. However, the Nebraska Bull Service conducts no
other business in South Dakota. Doc. 8 at ¶ 11.
lawsuit stems from a contract between Accelerated Genetics
and Caffee, who is a photographer based out of Jerauld
County, South Dakota. Doc. 1 at ¶¶ 3, 7. Don
Trimmer, the vice president of the beef program with
Accelerated Genetics, called Caffee and asked if she would
come to McCook, Nebraska and photograph approximately 20
bulls. Caffee agreed to do so and indicated that she would
charge $250 per bull plus her travel expenses and hotel. Doc.
8 at ¶¶ 2, 12. There was no written agreement and
the deal was made entirely over the phone. Doc. 8 at ¶
12. On May 5, 2014, the Plaintiff arrived in McCook,
Nebraska, and was injured in the process of taking
photographs of the bulls. Doc. 8 at ¶ 13. Her lawsuit
arises out of the injuries. Doc. 1.
federal court sitting in diversity may exercise jurisdiction
over nonresident defendants only if both the forum
state's long-arm statute and the Fourteenth
Amendment's Due Process Clause are satisfied. Morris
v. Barkbuster, Inc., 923 F.2d 1277, 1280 (8th Cir.
1991). Because South Dakota's long-arm statute confers
jurisdiction to the full extent permissible under the Due
Process Clause, the question here is whether asserting
personal jurisdiction over Accelerated Genetics comports with
due process. Bell Paper Box, Inc. v. U.S. Kids,
Inc., 22 F.3d 816, 818 (8th Cir. 1994) (applying South
jurisdiction under the Due Process Clause may be either
general or specific. Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 924-25 (2011). Courts with
general jurisdiction over a defendant may hear "any and
all claims" against the defendant, even if those claims
are unrelated to the defendant's contacts with the forum
state. Daimler AG v. Bauman. 134 S.Ct. 746, 754
(2014) (quoting Goodyear, 564 U.S. at 919). With
respect to a corporation, its place of incorporation and
principal place of business are two places where it typically
can be found for personal jurisdictional purposes.
Daimler AG, 134 S.Ct. at 760. Otherwise, for general
jurisdiction to exist, the defendant's contacts with the
forum state must be "so 'continuous and
systematic'" that the defendant is "essentially
at home" there. Goodyear, 564 U.S. at 919
(quoting Int'l Shoe Co. v. Washington, 326 U.S.
310, 317 (1945)).
general jurisdiction exists over Accelerated Genetics in
South Dakota. Accelerated Genetics has no offices, employees,
or bank accounts in South Dakota, nor does it manufacture or
design any product in South Dakota. The Nebraska Bull Service
division of Accelerated Genetics does some sales in South
Dakota, but these appear to be insufficient to justify
general jurisdiction under the circumstances. See Kimball
v. Countrywide Merchant Servs., No. CIV.A.04-3466, 2005
WL 318752, at *3-4 (E.D. Pa. Feb. 8, 2005) (no general
jurisdiction where defendants had made some sales to forum
state, but had no employees or property in the forum state);
Collegesource. Inc. v. AcademvOne, Inc., 653 F.3d
1066, 1074-75 (9th Cir. 2011) (general jurisdiction
inappropriate when contacts with state are sporadic and
business has no offices, no staff, and is not registered to
do business in forum state).
jurisdiction, by contrast, may be based on a defendant's
solitary or irregular contact with the forum state.
Daimler AG, 134 S.Ct. at 754. Unlike general
jurisdiction, however, specific jurisdiction is limited to
suits arising out of or relating to the defendant's
contact with the forum state. Goodyear, 564 U.S. at
919. Courts may exercise specific jurisdiction over an
out-of-state defendant if the defendant has "certain
minimum contacts" with the state such that having to
defend a lawsuit there "does not offend traditional
notions of fair play and substantial justice."
Int'l Shoe Co., 326 U.S. at 316 (quotation
omitted). These minimum contacts must be based on "some
act by which the defendant purposefully avails" himself
of the forum state "such that he should reasonably
anticipate being haled into court there." Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985)
(quotations omitted). It is the defendant, rather than the
plaintiff or a third party, who must establish the minimum
contacts in the forum state. Walden v. Fiore, 134
S.Ct. 1115, 1122 (2014). Moreover, the defendant's
contacts must be "with the forum State itself, not. ..
with persons who reside there." Id.; see
also Id. at 1123 ("Due process requires
that a defendant be haled into court in a forum State based
on his own affiliation with the State, not based on the
'random, fortuitous, or attenuated' contacts he makes
by interacting with other persons affiliated with the
State." (quoting Burger King, 471 U.S. at
Eighth Circuit precedent, five factors guide evaluating
whether the constitutional requirements for personal
jurisdiction have been met: "(1) the nature and quality
of the contacts with the forum state; (2) the quantity of
contacts with the forum; (3) the relation of the cause of
action to these contacts; (4) the interest of the forum state
in providing a forum for its residents; and (5) the
convenience of the parties." Digi-Tel Holdings, Inc.
v. Proteq Telecomms, (PTE). Ltd.. 89 F.3d 519, 522-23
(8th Cir. 1996) (footnote omitted). The first three factors
are the most important while the last two are merely
secondary. Id. at 523.
Genetics could be subject to personal jurisdiction under the
precepts of specific jurisdiction if, for example, this suit
arose out of its Nebraska Bull Service division's
marketing or sales in South Dakota. But that is not what this
case concerns. Rather, an Accelerated Genetics employee
contacted a South Dakota photographer to hire her to take
photographs of bulls in McCook, Nebraska. The service and
work was to be performed entirely in Nebraska. No Accelerated
Genetics employee or representative traveled to South Dakota
and only a single call was made to the state. The negligence
is alleged to have occurred entirely in McCook, Nebraska,
Doc. 1 at ¶¶ 12-13, and likewise the injury
occurred in McCook, Nebraska, Doc. 1 at ¶ 9.
the five factors, Accelerated Genetics had only one relevant
contact with South Dakota in the form of a phone call, and
the nature and quality of the contacts are thus very limited.
The cause of action is for negligence, which is alleged to
have occurred entirely in Nebraska, unconnected to any
behavior or activity of Accelerated Genetics within South
Dakota. Although South Dakota has an interest in providing a
forum to its residents, the convenience-of-the-parties ...