United States District Court, D. Maryland
K. BREDAR, CHIEF JUDGE
case arises out of a business transaction between the Berg
Corporation ("Berg") and C. Norris Manufacturing,
LLC ("C. Norris"). Berg, a Maryland demolition
contractor, hired C. Norris, an Ohio manufacturer, to
substantially modify a piece of heavy equipment. Berg alleges
that C. Norris committed negligence in modifying the
equipment. (Compl, ECF No. 1-2.) C. Norris has filed a
counterclaim against Berg as well as a third-party complaint
against several parties that assisted C. Norris in modifying
the equipment: PowerPure, LLC ("PowerPure"), P.E.
Alliance, IXC ("P.E. Alliance"), and Holmbury, Inc.
and Holmbury Group (collectively,
"Holmbury"). (Counterclaim, ECF No. 12; Third-Party
Compl., ECF No. 15.)
the Court are the third-party defendants' motions to
dismiss the third-party complaint. Holmbury and PowerPure
move to dismiss for lack of personal jurisdiction and for
failure to state a claim. (Holmbury Mot. Dismiss, ECF No. 63;
PowerPure Mot. Dismiss, ECF No. 90.) P.E. Alliance moves to
dismiss for lack of personal jurisdiction and for C.
Norris's failure to comply with Maryland's
Certificate of Merit statute. (P.E. Alliance Mot. Dismiss,
ECF No. 53; P.E. Alliance Supplemental Mot. Dismiss, ECF No.
89.) C. Norris contests each of these motions, but requests
that if the Court concludes there is no personal jurisdiction
over the third-party defendants, it transfer this entire
action to the U.S. District Court for the Northern District
of Ohio. (Opp'n Mem. P.E. Alliance Mot. Dismiss at 3, ECF
No. 69; Opp'n Mem. Holmbury Mot. Dismiss at 3-4, ECF No.
77; Opp'n Mem. PowerPure Mot. Dismiss at 3, ECF No. 92.)
reasons set forth below, the Court concludes there is no
personal jurisdiction over the third-party defendants in the
U.S. District Court for the District of Maryland. But in
light of C. Norris's request to transfer the entire
action, it will not yet act on the third-party
defendants' motions. Instead, it will order Berg to
respond to C. Norris' request to transfer the entire case
to the Northern District of Ohio. If the Court ultimately
concludes transfer of the entire action is warranted, it will
so transfer; if it concludes transfer of the entire action is
not warranted, it will sever the third-party complaint and
transfer those claims to the Northern District of Ohio,
while continuing to adjudicate the suit between Berg and C.
between Berg and C. Norris began in September 2016. At the
time, Berg owned a Komatsu PC 800 LC-8 hydraulic excavator
("the Komatsu"). (Compl. ¶ 4.) Berg
commissioned C. Norris to modify the Komatsu to include a
140-foot ultra-high demolition boom. (Id. ¶5.)
C. Norris agreed, and delivered the refurbished Komatsu to
Berg in April 2017. (Id. ¶6.)
November 2018, Berg sued C. Norris for negligently converting
the Komatsu and causing over a million dollars in damage.
(Id. ¶ 9.) In support of the negligence claim,
Berg alleges that C. Norris irreparably damaged the Komatsu
by installing defective couplers that damaged the hydraulic
system and by adding too much counterweight. (Id.
response, C. Norris filed a counterclaim against Berg
alleging breach of contract and unjust
enrichment. (Counterclaim, ECF No. 12.) C. Norris also
brought a third-party complaint against the three entities
that assisted C. Norris in modifying the Komatsu, seeking
indemnity and contribution. (Third-Party Compl. ¶¶
18-45, ECF No. 15.) In the third-party complaint, C. Norris
alleges that P.E. Alliance was responsible for the
engineering design that allegedly resulted in the additional
counterweight (id. ¶¶
37-45); that PowerPure "selected,
recommended, and distributed" the defective couplers
(id ¶¶ 18-26); and that Holmbury
"designed, engineered, manufactured, constructed,
tested, inspected, packaged, labeled, marketed, distributed,
sold and/or warranted" the defective couplers
(id. ¶¶ 27-36).
to personal jurisdiction, C. Norris alleges that its
principal place of business is in Ohio. (Id. ¶
1.) C. Norris alleges that the third-party defendants are
also Ohio-based companies and that they regularly conduct
business in Maryland, (Id. ¶¶ 3-7.) The
third-party defendants deny that they maintain meaningful
ties to Maryland; each has submitted an affidavit or
declaration stating they do not regularly conduct business in
the state and that they performed all work related to the
Komatsu project in Ohio. (P.E. Alliance Klusch Aff. ¶¶
6-12, ECF No. 53-1; Holmbury Mulder Decl. ¶¶ 5-11,
ECF No. 63-1; PowerPure Eppler Decl. ¶¶ 6-14, ECF
No. 90-4.) C. Norris has produced no corresponding
documentation to challenge these contentions.
Personal Jurisdiction Over the Third-Party
may exercise personal jurisdiction over a defendant if
"(1) an applicable state long-arm statute confers
jurisdiction and (2) the assertion of that jurisdiction is
consistent with constitutional due process." Nichols
v. G.D. Searle & Co., 991 F.2dll95, 1199 (4th Cir.
1993). The Maryland long-arm statute permits the exercise of
personal jurisdiction over a defendant who performs one of
the statute's enumerated acts. Md. Code Ann., Cts. &
Jud. Proc. § 6-103(b). The Maryland Court of Appeals
"interprets] the long-arm statute to the limits
permitted by the Due Process Clause." Mackey v.
Compass Mktg., Inc., 892 A.2d 479, 493 n.6 (Md. 2006).
satisfy constitutional due process, a plaintiff must show
that a defendant has sufficient minimum contacts with the
forum state such that "the maintenance of the suit does
not offend traditional notions of fair play and substantial
justice." Int'l Shoe Co. v. Wash., 326 U.S.
310, 316 (1945). In determining whether there are sufficient
minimum contacts, a court must consider "(1) the extent
to which the defendant purposely availed itself of the
privilege of conducting activities in the State; (2) whether
the plaintiff['s] claims arise out of those activities
directed at the State; and (3) whether the exercise of
personal jurisdiction would be constitutionally
reasonable." Consulting Eng'rs Corp. v.
Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009).
court evaluates whether there is personal jurisdiction over a
defendant "on the basis only of motion papers,
supporting legal memoranda and the relevant allegations of a
complaint, the burden on the plaintiff is simply to make a
prima facie showing of a sufficient jurisdictional basis to
survive the jurisdictional challenge." New
Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416
F.3d 290, 294 (4th Cir. 2005). The court must construe the
relevant allegations in the light most favorable to the
plaintiff and draw "the most favorable inferences for
the existence of jurisdiction." Combs v.
Bakker,886 F.2d 673, 676 (4th Cir. 1989). In drawing
its inferences, the court may look outside the plaintiffs
proof, to the ...