520 F.Supp. 383 (E.D.Mo. 1981), 80-844C 3, Scullin Steel Co. v. National Ry. Utilization Corp.

Docket Nº:80-844C 3
Citation:520 F.Supp. 383
Party Name:Scullin Steel Co. v. National Ry. Utilization Corp.
Case Date:March 31, 1981
Court:United States District Courts, 8th Circuit, Eastern District of Missouri
 
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Page 383

520 F.Supp. 383 (E.D.Mo. 1981)

SCULLIN STEEL COMPANY, Plaintiff,

v.

NATIONAL RAILWAY UTILIZATION CORP., Defendant.

No. 80-844C(3).

United States District Court, E.D. Missouri, Eastern Division.

March 31, 1981

Amended April 8, 1981.

On Motion To Alter or Amend July 27, 1981.

Page 384

Jim J. Shoemake and John W. O'Neil, Jr., St. Louis, Mo., for plaintiff.

Veryl L. Riddle and William E. McCurdy, Jr., St. Louis, Mo., for defendant.

MEMORANDUM

FILIPPINE, District Judge.

This matter is before the Court on defendant's motion to quash service of process and to dismiss for lack of personal jurisdiction and for failure to state a claim, or in the alternative to transfer this action to the Eastern District of Pennsylvania. Both parties have submitted affidavits in support of their respective positions with respect to the motion. Taking all of the allegations of the complaint as true, except as those allegations are controverted by defendant's affidavits, and considering also all affidavits on file, the Court finds that the plaintiff has not made a sufficient prima facie showing of jurisdictional facts sufficient to withstand the defendant's motion to dismiss.

The facts disclosed by the complaint, which is in three counts, and by the affidavits, are as follows. Plaintiff, Scullin Steel Company, is a Delaware corporation with its principal place of business in St. Louis, Missouri. Defendant, National Railway Utilization Corp. (NRUC), is a South Carolina corporation with its principal place of business in Philadelphia, Pennsylvania. Plaintiff is engaged in the manufacture of steel castings used in the manufacture of railroad cars; defendant is engaged in the business of manufacturing and leasing railroad cars. Defendant is not authorized to do business in Missouri; it has no office or personnel in Missouri, owns no real property in Missouri, and does not have any agent for service of process or for any other purpose in Missouri.

In June, 1978, a period of shortage of "car sets," or side frames and bolsters, Mr. Robert Peters, plaintiff's Vice President of Sales, visited Mr. John A. Mariscotti, Executive Vice President of defendant, in Philadelphia, Pennsylvania, to discuss a contract for the sale of railroad car sets by plaintiff to defendant. On June 12, in Philadelphia, Mr. Mariscotti signed a Sales Agreement prepared by plaintiff. Two weeks later plaintiff submitted a slightly altered Sales

Page 385

Agreement to Mr. Mariscotti in Philadelphia, which Mr. Mariscotti signed in that city on June 26, 1979. Defendant sent the executed Agreement to plaintiff in St. Louis, where plaintiff signed it. A copy of this contract is annexed to the complaint as Exhibit 1. The new Sales Agreement, which superseded the earlier one, provided that Scullin would sell 2,700 car sets to defendant in the period between January 1, 1979 and December 31, 1981 at the rate of 75 car sets per month, "F.O.B. Seller's Plant, St. Louis, Missouri."

Early in 1979, Mr. Mike Franz, a sales representative of plaintiff, called Carolyn Wilson, purchasing agent for defendant, and also visited defendant's offices in Philadelphia, to discuss a possible extension of the Sales Agreement. The parties' affidavits differ as to the degree of persuasion exercised by Mr. Franz. The details of the amendment were worked out in telephone conversations between Mr. Franz and Ms. Wilson. On April 20, 1979, in Philadelphia, Robert Shiner, Senior Vice President of Operations of defendant, signed the "Amendment to Sales Agreement" (Amendment), a copy of which is attached to the complaint as Exhibit 2. The Amendment had been drafted by Mr. Franz in accordance with his conversations with Ms. Wilson. The Amendment was signed by plaintiff in St. Louis, Missouri. The Amendment extended the period of the Agreement for an additional two years, and provided for the sale of 1,862 additional car sets. The Amendment incorporated the remaining terms of the Agreement. No employee or representative of defendant visited Missouri in negotiating or entering into these contracts or in connection with any other aspect of this action.

All manufacturing done by plaintiff under the Agreement and Amendment were done in plaintiff's only plant which is, and always has been, located in St. Louis, Missouri. The car sets were inspected by defendant on arrival in Pickens, South Carolina, and when the car sets were defective, plaintiff sent its quality control personnel to Pickens to inspect and accept the defective parts. All payments made by defendant were sent to plaintiff's office in St. Louis, Missouri; all shipments of castings to defendant were made from plaintiff's St. Louis plant.

Defendant specified certain details for the castings and plaintiff's engineering department in St. Louis prepared drawings of the castings which were sent to NRUC for approval. By letter dated August 30, 1978, addressed to plaintiff's Vice President-Engineering in St. Louis, defendant's Consulting Engineer approved the...

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