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Erwin v. Piscitello

September 28, 2007


The opinion of the court was delivered by: William B. Mitchell Carter United States Magistrate Judge

Judge William B. Mitchell Carter


According to the complaint (Doc. No. 1-2), the defendant placed an ad on eBay, representing that a classic car he had for sale was in mint condition. The plaintiff relied on this representation and purchased the vehicle, only to discover its condition was far from mint. This lawsuit ensued. On April 3, 2007, defendant Christopher L. Piscitello ("Defendant") filed a Motion to Dismiss for Lack of Personal Jurisdiction (Doc. No. 2). Plaintiff Louis H. Erwin, Jr. ("Plaintiff") responded (Doc. No. 6). Defendant replied (Doc. No. 10) to Plaintiff's response.

After considering the parties' arguments and exhibits, this Court finds its exercise of personal jurisdiction over Defendant to be proper. Thus, as explained below, Defendant's Motion to Dismiss for Lack of Personal Jurisdiction (Doc. No. 2) will be DENIED.


Plaintiff is a citizen and resident of Tennessee (Doc. No. 1-2, ¶ 1). Plaintiff collects, buys, and resells "classic" automobiles, that is, automobiles manufactured in the1950s and 1960s (id. ¶ 5). Defendant is a citizen and resident of Texas (id. ¶ 2).

In November 2006, Plaintiff saw an eBay ad for a 1962 Chevrolet Impala convertible (the "Impala") (id. ¶ 5). Plaintiff emailed an inquiry and Defendant responded. They made and received several calls during the month of November (id. ¶¶ 6-7). During these calls, Defendant represented to Plaintiff that the Impala was in "great" or "mint" condition, restored, rust-free, with many original parts, and well-worth its $50,000 price tag (id. ¶ 7). Plaintiff expressed interest in buying the Impala as Defendant described it, and the parties made tentative plans for Plaintiff to travel to Texas to view the car (id. ¶ 8). This was not to be, however, as Plaintiff's father-in-law passed away (id. ¶ 9). The parties differ as to whom next initiated contact;*fn1 according to the complaint, Defendant called and asked when Plaintiff could come to Texas and Plaintiff suggested Defendant look for another buyer (id. ¶¶ 9-10). Defendant reiterated the Impala's quality and offered to send "his driver" to Tennessee to deliver the car. Plaintiff agreed and cut Defendant a check (id. ¶¶ 10-11). After the check cleared, according to Plaintiff, Defendant sent his driver and car hauler to Chattanooga. The driver became lost, arriving late, and Plaintiff accepted delivery of the Impala on December 2, 2006 (id. ¶ 10). Two days later Plaintiff inspected the car and discovered it was not in mint condition but was rusty, with many non-original parts, and was not nearly worth the purchase price (id. ¶ 12). Plaintiff contacted Defendant and requested rescission of the sale. Defendant suggested Plaintiff sell the Impala at an upcoming auction in Florida, and he would pay Plaintiff the difference between the proceeds and the purchase/contract price (id. ¶ 16). Defendant allegedly refused to honor this agreement (id.), and it appears Plaintiff still has control of the Impala. It should be noted, there is no written contract for the transaction but only an uncompleted Bill of Sale and an "open" title (id. ¶ 18).

Plaintiff sued Defendant in the Circuit Court of Hamilton County, alleging breach of contract, breach of express warranty, fraud and fraud in the inducement of a contract, intentional and negligent misrepresentation, and violation of the Tennessee Consumer Protection Act ("TCPA"), Tenn. Code Ann. § 47-18-101 et seq. (id. ¶ 18 [sic, ¶ 19])). Plaintiff requested rescission of the sale, return of his $50,000 purchase money plus expenses and interest, or, in the alternative, $30,000 in damages plus transport expenses (id. at p. 6). Plaintiff also requested $500,000 in punitive damages (id. at p. 7) or treble damages under the TCPA. Plaintiff alleged jurisdiction under the Tennessee "Long Arm" statute, Tenn. Code Ann. § 20-2-214 (id. ¶ 4).

Defendant removed the matter to this Court on April 3, 2007, asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332 (Doc. No. 1, p. 1-2). Defendant filed the Motion to Dismiss coincident with the removal. A scheduling conference was held on July 9, 2007, and the parties consented to the undersigned United States Magistrate Judge handling this case.


Plaintiff bears the burden of demonstrating personal jurisdiction exists over Defendant. Youn v. Track, Inc., 324 F.3d 409, 417 (6th Cir. 2003); Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002). The Court may hold an evidentiary hearing or the Court may evaluate the parties' affidavits. Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir. 1980). If the Court chooses not to hold a hearing, Plaintiff need only make a prima facie case for jurisdiction. In other words, Plaintiff must "demonstrate facts which support a finding of jurisdiction," id. (citing Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977)), and must demonstrate jurisdiction co- terminous with Tennessee's Long Arm statute, id. Plaintiff's burden is relatively slight. Welsh, 631 F.2d at 438; Neogen, 282 F.3d at 887 (to avoid dismissal under Fed. R. Civ. P. 12(b)(2), plaintiff need only make prima facie showing of jurisdiction by establishing, with reasonable particularity, sufficient contacts between defendant and the forum State). This Court must view the pleadings and affidavits in the light most favorable to Plaintiff and must not consider facts proffered by Defendant which conflict with facts proffered by Plaintiff. Neogen, 282 F.3d at 887 (citing Serras v. First Tenn. Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir. 1989)); Welsh, 631 F.2d at 439.


Defendant moves to dismiss this matter for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) (Doc. No. 3, p. 1). Defendant emphasizes that he is a Texas resident and conducted no business in Tennessee related to this sale (id. ΒΆΒΆ 2-3) (Aff. of Christopher Piscitello). Defendant disputes Plaintiff's version of the facts -- he claims Plaintiff requested the Impala's sale and arranged its transport on his own, although Defendant recommended an "independent hauler" in ...

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