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Emiabata v. Western Finance & Lease

September 28, 2010


The opinion of the court was delivered by: Ralph R. Erickson, Chief Judge United States District Court


Before the Court is Defendant C&C Towing and Transport's (hereafter "C&C Towing") motion to dismiss for lack of personal jurisdiction (Doc. #17). Plaintiff Philip Emiabata d/b/a Nova Express (hereafter "Emiabata") filed a brief in opposition (Doc. #21). The Court, having considered the briefs, supporting evidence, and arguments of the parties, now issues this memorandum opinion and order.


Defendant C&C Towing's sole contact with North Dakota consisted of advising Western Finance & Lease, a North Dakota business and lien holder of the trailer at issue, as to the whereabouts of the trailer and receiving documentation to finalize the repossession of the trailer in the State of Georgia. The Court finds this contact is insufficient to confer personal jurisdiction over C&C Towing and hereby GRANTS C&C Towing's motion to dismiss for lack of personal jurisdiction.


Plaintiff Philip Emiabata resides in Texas (Doc. #1, Complaint ¶ 1). Defendant Western Finance & Lease, Inc. (hereafter "Western Finance") operates a business in Devils Lake, North Dakota (Id. at ¶ 2; Doc. #3, Answer ¶ 4). Defendant C&C Towing is a company doing business in Georgia (Id. at ¶ 2; Doc. #5, Answer ¶ 2; Doc. #19, Aff. Neal Clark, Jr. ¶3).

Emiabata alleges he purchased two semi-trailers from National Semi-Trailer Corporation in Charlotte, North Carolina (Doc. #1, Complaint ¶ 6). He claims he financed the purchase through Defendant Western Finance. Id. Emiabata contends he intended for Nova Express to sign the finance agreement as the primary borrower and Jennifer Graf as the co-signer. Id. According to Emiabata's allegations and documents presented to the Court, it appears Philip Emiabata has no written agreement with Western Finance. Western Finance entered into an agreement for the purchase of the trailers with Jennifer Graf d/b/a Nova Express.

In his Complaint, Emiabata alleges Western Finance violated the Deceptive Practices Act by falsely and fraudulently listing Jennifer Graf as the primary borrower and also the co-signer, and by representing that the finance agreement confers rights to Jennifer Graf as the primary borrower. Id. ¶ 8. Emiabata also alleges Western Finance has refused to cure "the defect" regarding the name of the borrower, has charged "outrageous" late fees, and "illegally" hired C&C Towing to repossess the trailer. Id. at ¶¶ 9-10. In addition, Emiabata alleges both Defendants violated bankruptcy law by disregarding his statement that he had filed bankruptcy and was entitled to protection from creditors. Id. at ¶ 11(b).

It is undisputed that C&C Towing has never done business with Emiabata and has no knowledge of the business transaction between Emiabata and Western Finance. (Doc. #19, Aff. Neal Clark, Jr. ¶¶ 4, 9). The lien holder of the truck hired C&C Towing to repossess the truck. Id. at ¶10. Following an altercation between C&C Towing, Emiabata, and Emiabata's wife, the Laurens County Sheriff's Department in Georgia directed C&C Towing to repossess the trailer in conjunction with the repossession of the truck. Id. at ¶¶ 12-13. Thus, C&C Towing, after researching the lien holder of the trailer, contacted Western Finance to advise the trailer was located in C&C Towing's impound lot. Id. at ¶ 14. Western Finance then sent documentation to C&C Towing to complete repossession of the trailer.

Defendant C&C Towing moves to dismiss the claims against it for lack of personal jurisdiction. Emiabata asserts jurisdiction is proper because C&C Towing acted as "an agent" of Defendant Western Finance.


1. Applicable Law

Personal jurisdiction exists in this Court if (1) North Dakota's long-arm statute is satisfied, and (2) the exercise of personal jurisdiction over the defendant would not violate the due process clause of the Fourteenth Amendment. Drayton Enters., L.L.C. v. Dunker, 142 F.Supp.2d 1177, 1182 (D.N.D. 2001). North Dakota's long-arm statute allows courts to exercise personal jurisdiction to the fullest extent permitted by due process. Hebron Brick Co. v. Robinson Brick & Tile Co., 234 N.W.2d 250, 255 (N.D. 1975).

In order for a court to properly exercise personal jurisdiction over a nonresident defendant, due process requires that the defendant have "certain minimum contacts" with the court's forum state such that the exercise of jurisdiction over the defendant "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). In analyzing minimum contacts, the Supreme Court has said it is essential that "there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958) (citing Int'l Shoe Co., 326 U.S. at 319). This "purposeful availment" requirement ensures a defendant will not be haled into a jurisdiction solely because of unilateral activity of a third person or as a result of random, fortuitous, or attenuated contacts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (citations omitted). Additionally, a ...

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