United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
matter is before the court on Defendant Postell Associates,
Inc's (hereinafter “G-Force”)'s Motion to
Dismiss with prejudice pursuant to Fed.R.Civ.P. 12(b)(2) and
Fed.R.Civ.P. 12(b)(6) (Filing No. 8) and Plaintiff
Brett Derkach's Motion to Transfer this case to the
United States District Court for the Northern District of
Georgia. (Filing No. 12). The parties have each
filed briefs opposing the other party's motion. For the
reasons stated below, the Motion to Transfer will be granted.
The Motion to Dismiss will remain pending for consideration
and ruling by the Northern District of Georgia.
Derkach is a resident of Saskatoon, Canada. (Filing No. 1
at CM/ECF p. 1). Defendant G-Force is a motorsport
racing equipment company with its principal place of business
in Roswell, Georgia. (Id. at 2, Filing No.
9-8). G-Force has one distributor in Nebraska, Speedway
Motors. (Filing No. 9-4 at CM/ECF p. 2). Summit
Racing Equipment (Summit) is a G-Force customer, and an
authorized dealer of G-Force parts. Summit has retail
locations in Ohio, Nevada, Georgia, and Texas. (Filing
No. 9-8 at CM/ECF p. 3).
4, 2018, Derkach filed a products liability lawsuit against
“G-Force Racing Gear” in the Lancaster County
District Court. (Filing No. 9-2). In his complaint,
he alleged that on June 21, 2014, he participated in a racing
competition in Lincoln, Nebraska. The vehicle he operated was
equipped with a camlock harness (seatbelt) manufactured by
G-Force, which was purchased from a Summit retail store in
Ohio. (Filing No. 9-2 at CM/ECF p. 2, Filing No.
9-4 at CM/ECF p. 1)) Derkach alleged that the seatbelt
did not operate properly and prevented him from exiting the
vehicle after it caught on fire. He alleges that as a result,
he “suffered severe, disabling injuries, including
burns and smoke inhalation, as well as pain, suffering, and
emotional distress.” (Filing No. 9-2 at CM/ECF p.
2). Derkach alleged claims for manufacturing defects,
design defects, breach of the warranty of merchantability,
failure to warn, and negligence. An Amended Complaint was
filed on August 8, 2018, amending the name of the defendant
to “Postell Associates d/b/a/ G-Force Racing
December 6, 2018, the Lancaster County District Court
sustained G-Force's motion to dismiss and dismissed the
case without prejudice. (Filing No. 9-4). The
Lancaster County District Court found that
“Nebraska's interest in a product liability dispute
between a resident of Saskatoon, Canada and a Georgia
corporation arising from a product purchased outside of
Nebraska is slight.” (Filing No. 9-4 at CM/ECF p.
18). Further, the court found that a stream-of-commerce
theory to establish personal jurisdiction over a defendant is
inapplicable because Derkach presented no evidence that
G-Force actually sold seatbelts in Nebraska. (Filing No.
9-4 at CM/ECF p. 17).
complaint was filed in this court on February 1, 2019,
alleging this action is properly filed “in accordance
with the savings clause under Neb. Rev. Stat. §
25-201.01.” (Filing No. 1). The claims alleged
in this proceeding are substantially the same as those raised
in the Lancaster County District Court. Derkach added
allegations that G-Force has a distributor in Nebraska,
namely Speedway Motors, and that “Upon information and
belief, G-Force sold seatbelt harnesses like the one at issue
through Speedway Motors.” (Filing No. 1 at CM/ECF
p. 2). Derkach removed the paragraphs included in the
state court complaint which alleged that the seatbelt was
purchased from Summit, and that Summit is an authorized
dealer of G-Force racing gear. (Filing No. 1,
Filing No. 9-2 at CM/ECF p. 2).
March 18, 2019, G-Force moved for dismissal with prejudice
under Fed.R.Civ.P. 12(b)(2) and Fed.R.Civ.P. 12(b)(6).
(Filing No. 8). G-Force asks the court to dismiss
this action under Fed.R.Civ.P. 12 (b)(2) for lack of personal
jurisdiction in Nebraska. In the alternative, G-Force asserts
that this case should be dismissed pursuant to Fed.R.Civ.P.
12(b)(6) because Derkach has filed a case upon which relief
cannot be granted. Specifically, G-Force argues that Derkach
filed his lawsuit in Nebraska to circumvent Georgia's
two-year statute of limitations on product liability actions, as
Nebraska's statute of limitations for a similar claim is
brief in opposition to G-Force's Motion to Dismiss states
“While Derkach does not concede that this Court lacks
personal jurisdiction over [G-Force] in this matter, for
purposes of this brief and the Motion to Transfer, he accepts
[G-Force's] assertion that personal jurisdiction and
venue are proper in Georgia.” (Filing No. 15).
As a result, Derkach requested that the court grant his
motion to transfer this case to United States District Court
for the Northern District of Georgia, “for trial of
this matter under Nebraska law.” (Id.).
Derkach's response to the motion to dismiss was filed the
same day as his Motion to Transfer. (Filing No. 12).
brief in opposition to G-Force's motion to dismiss
incorporates, by reference, the arguments made in his motion
to transfer and supporting brief. In his brief in support of
the motion to transfer, Derkach states:
While Derkach contends that personal jurisdiction and venue
are proper in Nebraska, because [G-Force] has conceded venue
and jurisdiction are proper in Georgia, rather than argue the
issues of personal jurisdiction and venue, Derkach requests
that this Court transfer the case to Georgia. Assuming for
argument's sake that jurisdiction is not proper in
Nebraska, in the interest of justice, the case should be
transferred to Georgia where [G-Force] has admitted venue and
jurisdiction are proper.
(Filing No. 14 at CM/ECF p. 3)