United States District Court, W.D. Virginia, Abingdon Division
JOE RAINERO TILE CO., INCORPORATED d/b/a PERMATILE CONCRETE PRODUCTS COMPANY, Plaintiff,
YOUNG AND McQUEEN GRADING COMPANY, INC., Defendant.
Shaun Lundy, Penn Stuart & Eskridge, Bristol, Tennessee,
C. Johnson and James J. O'Keeffe, IV, Johnson, Rosen
& O'Keeffe, LLC, Roanoke, Virginia, for Defendant.
OPINION AND ORDER
P. Jones United States District Judge
civil action, in which the subject-matter jurisdiction of
this court is based upon diversity of citizenship and amount
in controversy, 28 U.S.C. § 1332(a), the defendant has
moved to dismiss for lack of personal jurisdiction, or, in
the alternative, to transfer the case to the adjoining
Western District of North Carolina. After briefing by the
parties, I will deny the motion.
material facts are not in dispute. The plaintiff, Joe Rainero
Tile Co., Incorporated, doing business as Permatile Concrete
Products Company (“Permatile”), is a Virginia
corporation located in Washington County, Virginia. In 2017,
The North Carolina Department of Transportation
(“NCDOT”) sponsored a bridge project in Yancey
County, North Carolina. Permatile sent a quote to provide the
design and manufacture of precast concrete culvert sections
for the project to various general contractors who were
bidding on the project, including the defendant Young and
McQueen Grading Company, Inc. (“Y&M”).
Y&M is a North Carolina licensed general contractor,
located in Burnsville, North Carolina. It is not licensed to
do business in Virginia and has no property or work there.
received the award for the NCDOT project and contacted
Permatile about its quote. Y&M and Permatile had never
worked together before. A representative of Permatile came to
Y&M's offices to discuss the project. Following
discussions between the parties, including by email and
telephone, Y&M chose Permatile as its subcontractor, and
electronically sent a purchase order to Permatile in
Virginia. The purchase order recited the services and
material to be provided by Permatile for a payment by Y&M
of $85, 031.34, the same amount as contained in
Permatile's original general quote. A representative of
Permatile then sent an email to Y&M stating,
“[T]hank you for your order.” Br. Supp. Mot. Ex.
B, Icenhower Aff. ¶ 13, ECF No. 7-2.
rejected the initial draft design prepared by Permatile but
eventually accepted Permatile's design and Permatile
manufactured the materials in Virginia and delivered them to
the project site in North Carolina. Permatile invoiced
Y&M for the purchase price, which Y&M refused to pay.
While there were communications between the parties during
the performance of the contract, Y&M never physically
visited Permatile's facilities in Virginia.
action, Permatile claims a breach of contract for
Y&M's failure to pay the invoice, despite its
acceptance of the designed material. Y&M contends that
Permatile was unreasonably late in furnishing an acceptable
design to NCDOT and Y&M accordingly incurred liquidated
damages on the project, justifying its refusal to pay
a court's personal jurisdiction is properly challenged by
motion under Federal Rule of Civil Procedure 12(b)(2), the
jurisdictional question thereby raised is one for the judge,
with the burden on the plaintiff ultimately to prove grounds
for jurisdiction . . . .” Mylan Labs., Inc. v.
Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993). Where, as
here, the court addresses this question in a pretrial motion
“by reviewing only the parties' motion papers,
affidavits attached to the motion, supporting legal
memoranda, and the allegations in the complaint, a plaintiff
need only make a prima facie showing of personal
jurisdiction to survive the jurisdictional challenge.”
Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir.
defendant in this case was served with process pursuant to
Virginia's long-arm statute, Va. Code Ann. §
8.01-328.1(A)(1). That statute extends personal jurisdiction
to the extent permissible under the Due Process Clause of the
Constitution. Consulting Eng'rs Corp. v. Geometric
Ltd., 561 F.3d 273, 277 (4th Cir. 2009). The ultimate
issue thus is whether exercise of jurisdiction over the
defendant comports with due process. See Christian Sci.
Bd. of Dirs. of the First Church of Christ, Scientist v.
Nolan, 259 F.3d 209, 215 (4th Cir. 2001)
over a non-resident may be based upon the exercise of either
“specific” or “general” jurisdiction.
Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 414-15 (1984). Specific jurisdiction is
appropriate “when a controversy is related to or
‘arises out of' a defendant's contact with the
forum.” Id. at 414. Permatile relies upon the
doctrine of specific jurisdiction.
Fourth Circuit adheres to a three-prong test for specific
personal jurisdiction, requiring a court to consider:
“(1) the extent to which the defendant
‘purposefully availed' itself of the privilege of
conducting activities in the State; (2) whether the
plaintiff['s] claims arise out of those activities
directed at the State; and (3) whether the exercise of
personal jurisdiction would be constitutionally
‘reasonable.'” ALS Scan, Inc. v. Digital
Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir.
2002) (citation omitted). This is not a bright-line test, and
the court must “do more than formulaically count
contacts, instead taking into account the qualitative nature
of each of the defendant's connections to the forum
state.” Tire Eng'g & Distribution, LLC v.
Shandong Linglong Rubber Co., 682 F.3d 292, 301 (4th
Cir. 2012). Accordingly, “a single act by a defendant
can be sufficient to satisfy the necessary ‘quality and
nature' of such minimal contacts, although
‘casual' or ...