Inland_cat_sailboatThe rules of civil procedure are thrust, like harpoons, upon young lawyers during their first year of law school, and for good reason.  Failing to abide by any number of a jurisdiction’s various rules sections, subsections, and clauses can result in instant death to your client’s cause of action or defense.  For example, we know that under Rule 12(b) of the Federal Rules of Civil Procedure, motions asserting the defense of personal jurisdiction must be made before filing a responsive pleading, and can be deemed waived if not raised in such a motion or the responsive pleading itself.

Though there are various exceptions to the time-to-plead rules, the importance of getting a personal jurisdiction challenge front and center before the court early on in the litigation process applies to most jurisdictions, and a failure to do so can undermine the defense altogether.  A defendant learned this lesson the hard way in a recent case before the Rhode Island State Supreme Court.

In Pullar v. Cappelli, No. 2015-303 (R.I. 2016), the plaintiff (and former Rhode Island resident) met the defendant (a New York resident) in New York to negotiate a contract for employment, in which the plaintiff was to serve as captain of the defendant’s sailboat for a term of three years, with an annual salary and promise of bonus amounting to one year’s salary at the conclusion of the contract.  One month before the contract was set to expire, the defendant terminated the plaintiff’s employment without cause, denying the skipper his bonus.  The plaintiff subsequently filed suit for breach of contract to recover the money owed him.

In his initial answer, the defendant asserted that the subject venue, Rhode Island, did not have personal jurisdiction over him.  Nevertheless, the case proceeded for the next three years, through virtually all stages of litigation.  The defendant served written discovery, took the plaintiff’s deposition, filed discovery motions with the court, participated in court-annexed arbitration, rejected the arbitration award, and requested a trial assignment.  After the case was assigned for trial, and more than one year after the conclusion of arbitration, the defendant moved for summary judgment, asserting a lack of in personam jurisdiction.

On appeal after the trial court granted the defendant’s motion, the Rhode Island Supreme Court did not waste any breathe analyzing whether the defendant had minimum contacts with the state to satisfy the jurisdictional requirements of the long arm statute.  Recognizing that the defendant properly preserved the jurisdictional defense by raising it in his answer, the Court rejected the notion “that preservation of the defense is inviolable simply because it was raised in the answer.”  Relying on the analogous Rule 12 of the Federal Rules of Civil Procedure and interpretive case law, the Court concluded that simply asserting a jurisdictional defect in an answer does not preserve the right to raise the defense indefinitely.  Adopting the forfeiture doctrine developed by the federal court, the Supreme Court held that the defendant’s conduct prior to asserting his jurisdictional defense gave the
Continue Reading Don’t Watch Your Personal Jurisdiction Defense Sail Away

craft beer 2Following a five-week trial, a Providence jury found Twin River Casino, a Providence liquor store, and a teenage drunk driver liable in a dram shop case where the plaintiff, Alissa Moulton, sustained serious spinal injuries following an April 24, 2010 motor vehicle accident. Specifically, Moulton was paralyzed from the chest down when she and her friend, Cristina Sianpi, were ejected from the back seat of a 1997 Toyota Camry.  The car’s driver, 18 year-old defendant Alexander Arango, was Moulton’s boyfriend and the father of their child. According to reports, Arango lost control of the Camry, which struck a median barrier, crossed the two right lanes of the highway, rolled over, and collided—rear end first—with a tree on the highway’s grass shoulder.

Although historically known as “conservative” in terms of verdict awards, it took this particular jury less than two days of deliberation before awarding Moulton $23 million in damages, plus interest. Additionally, the jury assigned 70 percent responsibility to the underage driver, 20 percent to Twin River Casino, and 10 percent to Royal Liquors, a Providence liquor store that allegedly sold alcohol to Arango. Under Rhode Island law, each defendant is jointly and severally liable for the entire amount of damages regardless of the percentage of responsibility. (R.I.G.L. § 10-6-2.)  The defendants against whom a money judgment is entered are also, however, entitled to a set-off in the amount of either: (1) the total amount paid by each settled defendant; or (2) the percentage of fault assigned to each of those settled defendants by the trier of fact, whichever is greater.  (R.I.G.L. § 10-6-7.)

At trial, Moulton, who is now confined to a wheelchair, was represented by Providence personal injury firm of Mandell Schwartz & Boisclair.  Her lawyers argued before Judge William E. Carnes, Jr., that Twin River was negligent in serving alcohol to a visibly intoxicated Arango, and that Twin River violated the Rhode Island Liquor Liability Act (R.I.G.L § 3-14-1 et. seq.) by negligently serving the underage driver.

For his part, Arango, was sentenced to two years in prison after pleading guilty in June 2010 to two counts of driving to endanger resulting in serious bodily injury, and one count of driving under the influence.

A spokesperson for Twin River has suggested that the casino may seek to appeal the decision, as it is “inconsistent” with evidence put on by the defense.

About the Authors

Kenneth R. Costa is a partner with Manion Gaynor & Manning. He is a member of the multi-state Products Liability Litigation Team, with a primary focus in insurance defense, products liability, asbestos-related and toxic torts cases in Rhode Island, Massachusetts, and Connecticut.

Matthew Giardina is an associate in Manion Gaynor & Manning’s Providence office, and a member of the firm’s Products Liability and Complex Tort Litigation Group. He focuses his practice in the areas of products liability defense, mass torts, and other complex tort litigation.
Continue Reading Rhode Island Jury Returns a $23 Million Dram Shop Verdict

Lady JusticeOn October 13, 2016, Presiding Justice Alice B. Gibney of the Rhode Island Superior Court ruled on Defendant Dana Companies, LLC’s Motion to Dismiss for Lack of Personal Jurisdiction pending in the case of Harold Wayne Murray and Janice M. Murray v. 3M Company, et al., granting the defendant’s motion to dismiss upon finding that the court lacked sufficient minimum contacts to exercise personal jurisdiction – either general or specific – over the defendant. With this ruling, Rhode Island joins a growing list of jurisdictions that have applied the United States Supreme Court’s standard passed down in Daimler AG v. Bauman, 134 S. Ct. 746 (2014).

The Murray case was filed in Providence Superior Court, and involves a Tennessee resident alleging he developed mesothelioma as a result of exposure to asbestos through his work with and around numerous defendants’ products over the course of his lifetime, predominantly at locations in Tennessee and Virginia. The complaint filed in Murray named hundreds of defendants who allegedly manufactured, sold, or supplied asbestos or asbestos-containing products to which Mr. Murray was allegedly exposed, including Dana Companies, LLC (“Dana”). Dana subsequently moved to dismiss the plaintiff’s claims on the grounds that a Rhode Island court’s exercise of jurisdiction, either specific or general, would violate its due process rights pursuant to the United State Constitution as well as the Supreme Court’s ruling in Daimler AG v. Bauman and its progeny.

Specifically, Dana asserted that as the plaintiff’s claims arose from alleged conduct that occurred entirely outside of Rhode Island with consequences transpiring outside of the State, the court’s exercise of specific personal jurisdiction was clearly improper. During his deposition taken near his home in Johnson City, Tennessee, Mr. Murray confirmed that he’d never lived in, worked in, received treatment in, or visited the State of Rhode Island. Absent a nexus between the plaintiff, the forum, and the litigation to permit the court’s exercise of specific personal jurisdiction, the court’s review of Dana’s motion to dismiss turned on the question of whether there was a basis to exert general jurisdiction over the defendant.

The court’s general jurisdiction analysis began by citing the Supreme Court’s decision in Goodyear Dunlop Tires Operations, S.A. v. Brown for the proposition that a court may reasonably exercise general jurisdiction over a foreign corporation where the corporation’s affiliations with the state are so continuous and systematic as to render them essentially “at home” in the forum state. 564 U.S. 915, 919 (2011); Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. and Placement, 326 U.S. 310, 317 (1945)).Upholding Daimler’s elaboration of this “at home” standard, the court reasoned that “with very limited exceptions, a defendant can customarily be subject to general jurisdiction in the state of its incorporation and the state of its principal place of business.” Going further, the court specified that evidence of a corporation’s continuous and systematic contact with a jurisdiction was relevant only to the determination of specific jurisdiction, and was not the


Continue Reading Rhode Island Court Upholds Daimler to Dismiss Claims Against Foreign Corporation for Lack of Personal Jurisdiction