Maglio & Kendro, Inc. v. Superior Enerquip Corp.

• Decision Date: 02 June 1989
• Citation: 233 N.J.Super. 388,558 A.2d 1371
• Parties: MAGLIO & KENDRO, INC., Plaintiff-Respondent, v. SUPERIOR ENERQUIP CORPORATION, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 388

233 N.J.Super. 388

558 A.2d 1371

MAGLIO & KENDRO, INC., Plaintiff-Respondent, v. SUPERIOR ENERQUIP CORPORATION, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted April 25, 1989.

Decided June 2, 1989.

Lesser & Kaplin, for appellant (Alan P. Fox, Marlton, on the brief).

Hoagland, Longo, Oropollo & Moran (Alan I. Dunst, of counsel; Jamie D. Happas, New Brunswick, on the brief).

Before Judges PRESSLER, SCALERA and STERN.

The opinion of the court was delivered by

STERN, J.A.D.

Defendant appeals from a judgment of the Law Division granting plaintiff's motion for summary judgment and entering judgment for plaintiff in the amount of $12,902.72, plus interest and costs. The Law Division order enforced a judgment previously entered against defendant in the Circuit Court of Waukesha County, Wisconsin. We affirm.

There is no dispute as to the material facts. Defendant is a New Jersey corporation which sells and services boilers and boiler materials. It has two places of business--one located in Edison, New Jersey and the other located in Blue Bell, Pennsylvania. Plaintiff is a Wisconsin corporation which performs "executive search, management consulting, and outplacement services". Its principal place of business is located in Brookfield, Wisconsin.

By a telephone call presumably from New Jersey or Pennsylvania on December 11, 1986, Michael Miller, defendant's president, contacted Richard J. Kendro, vice president of plaintiff, seeking to engage plaintiff's services to search for a new general manager for defendant's Pennsylvania office. An agreement was reached and confirmed in writing from plaintiff to defendant the same day, and pursuant to Kendro's request, Miller forwarded to plaintiff a variety of materials including a description of defendant's boilers and a specification book.

After receiving the materials, plaintiff proceeded to contact and screen "approximately 30-35 potential prospects" for the position, ultimately trimming that list "to 5 viable candidates." Kendro forwarded the five candidates' "presentations" to Miller and confirmed with Miller his "agreement to come to Milwaukee, Wisconsin to personally participate in final interview processes." A number of telephone conversations between Kendro and Miller ensued to arrange the details of Miller's trip. Pursuant to those conversations Kendro made arrangements, including hotel reservations, for Miller to interview the five candidates at plaintiff's Wisconsin offices on March 4, 1987. The arrangements with Miller were also confirmed in writing.

However, on February 23, 1987 Miller telephoned Kendro to advise him that defendant wished to "terminate the search." As a result, plaintiff on that date forwarded a final invoice to defendant for "professional recruitment services" rendered in the amount of $11,752.86. Defendant did not pay that amount to plaintiff, apparently taking issue with the number of hours for which it was billed by plaintiff. Consequently, on August 28, 1987 plaintiff filed a one-count complaint in the Circuit Court of Waukesha County, Wisconsin, seeking judgment against defendant for the invoice amount plus interest and costs. Defendant chose not to defend against the Wisconsin action. ¹ Thus, on November 18, 1987 a default judgment was entered against defendant by the Wisconsin court in the aggregate amount of $12,902.72.

Plaintiff subsequently instituted this action in the Law Division, seeking the enforcement of the Wisconsin default judgment. Plaintiff moved for summary judgment in its favor, based upon the Wisconsin judgment, while defendant cross-moved for summary judgment in its favor, asserting that it "never did business" in Wisconsin and that no agent or representative of defendant's had "ever travelled to Wisconsin to do any business on behalf of [defendant] of any kind." Both motions were initially denied. However, plaintiff moved for reconsideration of the denial of its motion, and Judge Breitkopf granted summary judgment in its favor.

Defendant appeals from the Law Division's grant of summary judgment in plaintiff's favor. It contends that, because defendant conducts business "only in the State of New Jersey and Pennsylvania," has no place of business in Wisconsin and has "never advertised or solicited business" there, and since no agents or other representatives of defendant have "ever travelled to Wisconsin" on defendant's behalf, the Wisconsin default judgment "is not entitled to full faith and credit in New Jersey" and "the Wisconsin court's assertion of personal jurisdiction over [defendant] was not supported by sufficient minimum contact between [defendant] and the forum state...." Plaintiff contends, on the other hand, that defendant, "by soliciting [plaintiff] to perform an executive search for a general manager for [defendant's] plant in Pennsylvania, satisfied the necessary jurisdictional minimum contacts for purposes of in personam jurisdiction." (emphasis in original). Judge Breitkopf, in his June 22, 1988 opinion, substantially agreed with plaintiff's position, pointing to "a period of two months where multiple phone conversations and mailing occurred between the two parties" and determining that

[i]n the present case, the defendant made an unsolicited call from its New Jersey office to defendant's office in Wisconsin. An offer was made by plaintiff which defendant relied upon. Follow-up conversations and mailings took place between the parties resulting in defendant actively engaging in performing services for [plaintiff].

We conclude that Judge Breitkopf was correct in granting plaintiff's motion for summary judgment.

A judgment properly entered in accordance with local procedures is entitled to full faith and credit in the courts of any other state, under Art. IV, § 1 of the United States Constitution, provided that the judgment is not rendered in violation of the Due Process Clause of the Fourteenth Amendment. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490, 497 (1980); Hupp. v. Accessory Distributors, Inc., 193 N.J.Super. 701, 708, 475 A.2d 679 (App.Div.1984). To be valid, the original judgment must be founded upon adequate jurisdiction over both the subject matter and the parties. World-Wide Volkswagen, 444 U.S. at 291, 100 S.Ct. at 564, 62 L.Ed.2d at 497; James v. Francesco, 61 N.J. 480, 485, 295 A.2d 633 (1972); Hupp v. Accessory Distributors, 193 N.J.Super. at 708, 475 A.2d 679. Consequently before it is bound by the original judgment, the court in the second state "may inquire into the jurisdictional basis of the foreign court's decree" and, "[i]f that court did not have jurisdiction over the subject matter or the relevant parties, full faith and credit need not be given." Underwriters National Assurance Co. v. North Carolina Life & Accident & Health Insurance Guaranty Association, 455 U.S. 691, 705, 102 S.Ct. 1357, 1366, 71 L.Ed.2d 558, 570-571 (1982). ²

The Wisconsin courts have noted that its long arm statute ³ "was intended to provide for the exercise of jurisdiction over nonresident defendants to the full extent consistent with the requisites of due process of law," Zerbel v. H.L. Federman & Co., 48 Wis.2d 54, 179 N.W.2d 872, 875 (1970), appeal dismissed, 402 U.S. 902, 91 S.Ct. 1379, 28 L.Ed.2d 643 (1971), quoting from Flambeau Plastics Corp. v. King Bee Manufacturing Co., 24 Wis.2d 459, 129 N.W.2d 237, 240 (1964), and in the landmark decision of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the United States Supreme Court ruled that

due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." [326 U.S. at 316, 66 S.Ct. at 158, 90 L.Ed. at 102, quoting from Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278, 283 (1940) ].

The "minimum contacts" test is meant to ensure the fairness and reasonableness of requiring a non-resident to defend a law suit in the forum state. See International Shoe, 326 U.S. at 317, 66 S.Ct. at 158, 90 L.Ed. at 102. The jurisdictional test is not to be applied mechanically, but rather "the quality and nature of the [defendant's] activity in relation to the fair and orderly administration of the laws" must be examined on a case-by-case basis, 326 U.S. at 319, 66 S.Ct. at 159, 90 L.Ed. at 104, and "the defendant's conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there," World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 501. "The unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum State"--rather, "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283, 1298 (1958). See also, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528, 540-541 (1985); World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 501.

As our Supreme Court has recently stated,

The first step in a minimum-contacts analysis ... is to determine whether the defendant has sufficient contacts with the forum state. The second step is to evaluate those contacts "in light of other factors to determine whether the assertion of personal jurisdiction would comport with 'fair play and substantial justice.' " [Charles Gendler & Co. v. Telecom Equipment Corp., 102 N.J. 460, 472, 508 A.2d 1127 (1986), quoting Burger King, 471 U.S. at 476, 105 S.Ct. at 2184, 85...