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Collier v. Land & Sea Restaurant Co., LLC

United States District Court, W.D. Virginia, Roanoke Division

October 15, 2014

ROBERT J. COLLIER, Plaintiff,
v.
LAND & SEA RESTAURANT CO., LLC d/b/a FRANKIE ROWLAND'S STEAKHOUSE, Defendant/Third-Party Plaintiff,
v.
PERFORMANCE FOOD GROUP, INC. d/b/a PERFORMANCE FOOD SERVICE-VIRGINIA, Third-Party Defendant/Crossclaim Plaintiff,
v.
SAM RUST SEAFOOD, INC., Third-Party Defendant/Crossclaim Defendant/Fifth-Party Plaintiff,
v.
CAPE COD SHELLFISH & SEAFOOD COMPANY, Fifth-Party Defendant/Sixth-Party Plaintiff,
v.
NORM BLOOM AND SON, LLC, Sixth-Party-Defendant.

MEMORANDUM OPINION

GLEN E. CONRAD, Chief District Judge.

Pending before the court is a motion to dismiss filed by sixth-party defendant Norm Bloom and Son, LLC ("Norm Bloom"). In its motion, Norm Bloom seeks dismissal of the sixth-party complaint against it on the ground that this court does not have personal jurisdiction over it. Norm Bloom claims that it is entitled to dismissal under both Fed.R.Civ.P. 12(b)(2), due to lack of personal jurisdiction, and Rule 12(b)(5), for insufficiency of service of process "because service through the Secretary of the Commonwealth was improper on the ground that no personal jurisdiction over Norm Bloom existed." Dkt. No. 144 at 2.

The motion has been fully briefed, the court has heard arguments, and it is now ripe for disposition. For the reasons set forth herein, the court concludes that it has personal jurisdiction over Norm Bloom and thus the motion to dismiss will be denied.

Background

The court has already issued a number of opinions in this case, and many of them discuss the factual background of the matter in some detail. For purposes of the instant motion, a broad overview of that background will suffice. The plaintiff in this case, Robert Collier, alleges that he suffered damages, including severe bodily damage, due to eating oysters contaminated with saxitoxin at Frankie Rowland's Steakhouse in Roanoke, Virginia on April 14, 2011. Dkt. No. 1 at 1. Various parties in the chain of supply of the oysters are named as third-party defendants in the case. According to the allegations in the third-party complaints, the oysters at issue were supplied to the restaurant by Performance Food Service-Virginia ("PFG"). PFG's supplier, in turn was Sam Rust Seafood, Inc. ("Sam Rust"), which purchased the oysters from Cape Cod Shellfish & Seafood Company ("Cape Cod"), which obtained them from Norm Bloom.

Norm Bloom alleges that this court's exercise of personal jurisdiction over it would violate its due process rights because Norm Bloom lacks sufficient contacts with the Commonwealth of Virginia. Norm Bloom sets forth the following facts via affidavit and contends they establish the limited nature of its contacts with Virginia:

• Norm Bloom is a Connecticut limited liability company with a place of business in Norwalk, Connecticut. It harvests shellfish from the waters off the coast of Connecticut;
• Norm Bloom does not have offices in Virginia, does not own property in Virginia, and does not maintain any bank accounts in Virginia;
• Norm Bloom has a general website where people can order products and shellfish online, but does not advertise or market the sale of shellfish specifically in Virginia;
• Norm Bloom has no telephone listings or mailing addresses in Virginia, is not registered to do business here, and does not have an agent for service of process here;
• No employees or members of Norm Bloom are domiciled in Virginia;
• Norm Bloom has never had any direct contact with Frankie Rowland's; and
• Norm Bloom did not sell shellfish to Cape Cod (a Massachusetts company) in Virginia and Norm Bloom was not aware that Cape Cod was re-selling shellfish to suppliers (here to Sam Rust, which sold to PFG, which sold to the restaurant in Virginia);

See Dkt. No. 145-1 at 1-2 (affidavit of Norman C. Bloom).

Norm Bloom also underscores that it is currently defending a suit brought by Collier alleging the same injuries as the instant lawsuit, which is pending in a Connecticut state court.[1] Norm Bloom complains that it would be unfair and unduly burdensome to require it to defend two lawsuits arising from the same incident. Dkt. No. 145 at 3. It also points out the possibility of inconsistent or conflicting verdicts as a result of two suits concerning the same subject matter. Id.

In response, and in support of its argument that the assertion of jurisdiction over Norm Bloom is permissible, Cape Cod points to the following facts:

• Norm Bloom is an "Interstate Certified Shellfish Shipper" and is well aware that the oysters it sells will be transported across state lines;
• Norm Bloom knew it was selling to Cape Cod. Cape Cod is a seafood wholesaler who advertises being "centrally located for freight truck distribution and.... minutes away from Boston's Logan International Airport for overnight air shipments." Based on this, Norm Bloom had knowledge its oysters might end up in Virginia and that its indemnification obligations could extend to an injury in that forum;
• Norm Bloom maintains and operates a website that allows anyone (including Virginia residents) to order food items. During a five year period spanning the date at issue - between June 1, 2009 and June 1, 2014 - Norm Bloom received 32 website orders from individuals in Virginia, constituting approximately 7.34 percent of its website business during that period. Norm Bloom ...

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