U.S. District Court for the Western District of Kentucky
In Jack Papineau and Holly Papineau v. Brake Supply Company, Inc., et al., the court recently denied a third-party defendant’s motion to dismiss a third-party complaint without prejudice. Plaintiff Jack Papineau alleged he developed malignant mesothelioma from exposure to asbestos from his employment at Smith Coal, and sued four defendants including Brake Supply.
Brake Supply then filed a third party action against Fras-le S.A. Fras-Le North for common law indemnity and apportionment under K.R.S. § 411.1821. Brake Supply alleges that Fras-le North America is a wholly-owned subsidiary of Fras-le S.A. Brake Supply attempted to serve process on Fras-le S.A. by serving Fras-le North America, but service of process was rejected. Brake Supply also alleges that the court has personal jurisdiction over Fras-le S.A. Fras-le S.A. filed a motion to dismiss Brake Supply’s Amended Third-Party Complaint for insufficient service of process and lack of personal jurisdiction or, in the alternative, to quash the summons.
The court noted that Federal Rule Civil Procedure 12 (b) (5) governs the dismissal based on insufficient service of process and Federal Rule Civil Procedure 12 (b) (2) governs the dismissal based on lack of personal jurisdiction. Further, to determine whether Brake Supply’s service of process was sufficient, the court must turn to Rule 4(h) which governs the manner of service on corporate defendants. Under Rule 4(h) service can occur by “delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant.”
In this case, Brake Supply argued that Fras-Le North America is the alter ego and agent of Fras-Le S.A. for the purpose of service of process and personal jurisdiction. The court noted there was evidence presented that supported there were issues that warrant limited discovery. Fras-le S.A. has submitted evidence such as affidavits that contest any alter-ego relationship and personal jurisdiction. Brake Supply has submitted evidence to prove an alter-ego relationship between Fras-le S.A. and Fras-le North America for service of process and personal jurisdiction.
Consequently, the court denied the third party’s motion to dismiss without prejudice. Further, Fras-Le S.A. may re-file its motion after Brake Supply has had an opportunity to conduct limited discovery.