United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Jeff Neill Timberland
Management, Inc.'s Motion to Dismiss Plaintiff's
Complaint for lack of personal jurisdiction under
Fed.R.Civ.P. 12(b)(2) and for improper venue under
Fed.R.Civ.P. 12(b)(3). (Doc. No. 8) Defendant argues it is
not subject to personal jurisdiction in Missouri under
Missouri's long-arm statute, Mo. Rev. Stat. §
506.500.1 (id. at 4-5), and lacks sufficient
contacts with Missouri to permit this Court to exercise
jurisdiction over it (id. at 5-8). Defendant further
argues that even if this Court has personal jurisdiction,
venue is improper in the Eastern District of Missouri.
(Id. at 9-10) Plaintiff Gross & Janes Co.
opposes the motion, arguing that Defendant entered into a
contract in Missouri (Doc. No. 11 at 4-5), and has sufficient
minimum contacts with Missouri such that personal
jurisdiction over Defendant is proper in this Court
(id. at 5-8). Plaintiff also contends venue is
proper in the Eastern District. (Id. at 8) The
motion is fully briefed and ready for disposition. For the
following reasons, the Court finds it does not have personal
jurisdiction over Defendant, and this action will be
a Missouri corporation with its principal place of business
in Missouri, is in the business of procuring and processing
railroad ties. As part of its business, Plaintiff acquires
parcels of land to secure available sources of timber.
(Complaint (“Compl.”), Doc. No. 1 at ¶¶
7-8) Defendant, an Arkansas corporation with its principal
place of business in Arkansas, provides forestry consulting
November 2011, Plaintiff was investigating the purchase of
certain parcels of timber in Arkansas. (Id. at
¶ 9) Defendant was retained by Plaintiff's lender to
determine and report the operable stocking, tonnage and value
of standing timber for a timber deed for harvest on 4, 217.77
acres that Plaintiff intended to purchase. (Id. at
¶ 10) On November 28, 2011, Defendant provided its
Forestry Appraisal Report to Plaintiff's lender, which
then agreed to finance the acquisition of the property based
on the timber tonnage and values provided therein.
(Id. at ¶ 14) In reliance on the Appraisal
Report, Plaintiff purchased the property on January 12, 2012.
(Id. at ¶ 15)
letter dated January 16, 2012, Defendant proposed to provide
Plaintiff with certain forestry consulting/management
services in exchange for five percent (5%) of the gross
proceeds for related timber sales. (Id. at ¶
25; Doc. No. 1-1) Plaintiff alleges this letter was a
“proposed agreement, ” which it then signed and
accepted in the State of Missouri. (Id.)
complaint, Plaintiff alleges that subsequent to the purchase
of the property, it learned that many components of the
inventory and reports prepared and provided by Defendant were
“incorrect and/or non-existent beyond the statistical
limits and industry standards.” (Compl. at ¶¶
17-21) In particular, Plaintiff alleges that at the time of
the closing, Defendant estimated the value of the standing
timber on the property to be 5.8 to 6.4 million dollars when
the actual value was significantly less than represented.
(Id. at ¶ 22) Plaintiff further alleges that
the actual value of the timber cut on the property
significantly exceeds the amounts paid to Plaintiff.
(Id. at ¶ 29)
asserts claims for breach of the forestry appraisal services
agreement (Count I) and forestry management services
agreement (Count II), and for negligence (Count III).
Plaintiff states the Court has personal jurisdiction over
Defendant because Defendant entered into a contract with
Plaintiff that satisfies Missouri's long-arm statute and
because the injuries which give rise to this action have a
connection to the State of Missouri. (Id. at ¶
4) Plaintiff states venue is proper because a substantial
part of the events or omissions giving rise to
Plaintiff's claims occurred in this District.
(Id. at ¶ 5) Defendant moves to dismiss the
complaint for lack of personal jurisdiction and improper
venue under Rule 12(b)(2) and (3).
survive a motion to dismiss for lack of personal
jurisdiction, a plaintiff must make a prima facie showing
that personal jurisdiction exists, which is accomplished by
pleading sufficient facts ‘to support a reasonable
inference that the defendant[ ] can be subjected to
jurisdiction within the state.'” K-V Pharm. Co.
v. J. Uriach & CIA, S.A., 648 F.3d 588, 591-92 (8th
Cir. 2011) (quoting Dever v. Hentzen Coatings, Inc.,
380 F.3d 1070, 1072 (8th Cir. 2004)). “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.” Id. (internal citations
and quotation marks omitted). The evidence must be viewed in
the light most favorable to the plaintiff and all factual
conflicts are resolved in its favor in deciding whether the
plaintiff made the requisite showing. Id. (citing
Digi-Tel Holdings, Inc. v. Proteq Telecomms. (PTE),
Ltd., 89 F.3d 519, 522 (8th Cir. 1996)).
considering a motion to dismiss for lack of personal
jurisdiction, a federal court engages in a two-step inquiry.
First, the district court must determine “whether the
defendant committed one of the acts enumerated in
[Missouri's] long-arm statute.” Scullin Steel
Co. v. Nat'l Ry. Utilization Corp., 676 F.2d 309,
312 (8th Cir. 1982). Then, the court must consider whether
the exercise of personal jurisdiction over the defendant
comports with the requirements of due process. Id.
Missouri courts have construed the long arm statute
“‘to extend the jurisdiction of the courts of
this state over nonresident defendants to the extent
permissible under the Due Process Clause.'”
Moog World Trade Corp. v. Bancomer, 90 F.3d 1382,
1384 (8th Cir. 1996) (quoting State ex rel. Deere &
Co. v. Pinnell, 454 S.W.2d 889, 892 (Mo. 1970) (en
defendant moving to dismiss under Rule 12(b)(3) must
demonstrate that the plaintiff's choice of venue is
improper, generally by submitting affidavits or other
evidence. Mounger Constr., LLC v. Fibervision Cable
Servs., LLC, No. 2:11-CV-00081-ERW, 2012 WL 4793764, at
*3 (E.D. Mo. Oct. 9, 2012) (citing Fed.R.Civ.P. 12(b)(3);
Webb Candy, Inc. v. Walmart Stores, Inc., No.
09-CV-2056-PJS/JJK, 2010 WL 2301461, at *4 (D. Minn. June 7,
2010)). Under 28 U.S.C. § 1391(a)(2), venue in a
diversity case such as this is proper in “a judicial
district in which a substantial part of the events or
omissions giving rise to the claim occurred.” To
resolve the motion to dismiss then, the Court must analyze
whether this District has a substantial connection to the
claims in the case. Nordyne, Inc. v. Flick Distrib.,
LLC, No. 4:09-CV-0055-TCM, 2009 WL 1508778, at *3 (E.D.
Mo. May 28, 2009). If venue is improper, the court may either
dismiss the action or transfer it the proper district. 28
U.S.C. § 1406(a).