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Derkach v. Postell Associates, Inc.

United States District Court, D. Nebraska

June 5, 2019

BRETT DERKACH, Plaintiff,
v.
POSTELL ASSOCIATES, INC., doing business as G-Force Racing Gear, Defendant.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge

         This 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.

         BACKGROUND

         Plaintiff 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).

         On June 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 Gear.”

         On 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).

         A 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.[1] 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).

         On 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[2] on product liability actions, as Nebraska's statute of limitations for a similar claim is four years[3].

         Derkach's 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).

         Derkach's 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)

         ANALYSIS

         I. ...


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