Deer Corp. v. Carter

• Decision Date: 02 May 2006
• Docket Number: No. COA05-267.,COA05-267.
• Parties: DEER CORPORATION, Plaintiff, v. Guy W. CARTER, Defendant.
• Court: North Carolina Court of Appeals

629 S.E.2d 159

DEER CORPORATION, Plaintiff, v. Guy W. CARTER, Defendant.

No. COA05-267.

Court of Appeals of North Carolina.

May 2, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by plaintiff from order entered 8 November 2004 by Judge Robert P. Johnston in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 November 2005.

Poyner & Spruill LLP, by P. Marshall Yoder and Joshua B. Durham, Charlotte, for the plaintiff-appellant.

Bishop, Capitano & Moss, P.A., by A. Todd Capitano and Raizel Arnholt Kahn, Charlotte, for defendant-appellee.

MARTIN, Chief Judge.

Plaintiff appeals from the trial court's order dismissing its claim for lack of personal jurisdiction over defendant. For the reasons which follow, we affirm.

Plaintiff is a North Carolina corporation engaged in the business of selling wheel balancing equipment. The equipment is manufactured in Germany by a company called Haweka Auswuchttechnik Horst Warkotsch GmbH ("Haweka Germany"). In March 1999, plaintiff entered into an agreement with Haweka Germany giving plaintiff the exclusive right to distribute its products in North America for twenty years. In 2000, plaintiff hired Jerome Donahue as a sales representative. However, on 30 November 2001, Donahue quit his job with plaintiff without notice and went to work for Haweka Germany. Two weeks later, Haweka Germany sent a letter to plaintiff attempting to terminate their distribution agreement. Allegedly, Haweka Germany intended Donahue to take over its North American distributorship. Plaintiff therefore filed suit against Donahue and Haweka Germany in December, 2001. By January 2002, Haweka Germany had reinstated its distribution agreement with plaintiff.

Defendant worked as an export manager for Haweka Germany and later as a distributor for Haweka products in the United Kingdom. In the course of discovery in plaintiff's case against Donahue, plaintiff came to believe defendant had encouraged Donahue to take valuable business information from plaintiff with the intent of helping him start the new North American distributorship for Haweka's products. Plaintiff therefore brought the current action against defendant, claiming misappropriation of trade secrets, tortious interference with contract and prospective economic advantage, civil conspiracy, punitive damages, and unfair and deceptive trade practices. Defendant, a resident of Great Britain, moved to dismiss for lack of personal jurisdiction pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(2), and the trial court ordered discovery on the question of jurisdiction.

A hearing on the matter of personal jurisdiction was held on 23 June 2004. At that time, the evidence before the trial court consisted of the depositions of defendant, Donahue, and Allan Hansen (president of plaintiff corporation during the time in question), and competing affidavits submitted by the parties. The evidence conflicted regarding the level of defendant's contacts with North Carolina.

Plaintiff alleged defendant played an active role in the decision to hire Donahue and terminate plaintiff's distribution agreement. Defendant denied any involvement in either decision. Donahue stated in his deposition that while he was working in North Carolina, defendant initiated telephone calls to him about employment possibilities with Haweka Germany. The trial court, however, found Donahue solicited defendant's help in contacting Haweka Germany. Donahue also claimed defendant called him in North Carolina to ask him to prepare a business plan for a new North American distributorship. Defendant denied these allegations. The trial court found there was "no evidence that Carter ever sought the North American distributorship."

Plaintiff contended defendant provided Donahue with a credit card number for him to travel to Haweka Germany's Christmas party in 2001, where the company announced Donahue was its new employee. Defendant denied this allegation and presented his credit card statements for that period of time. The trial court found these statements "appear[ed] to show that his card was never used for such purposes." Donahue first stated in his deposition he believed defendant had provided the credit card number for his travel expenses, but he later admitted he was not sure who had provided the number. The trial court found that "[t]o the extent that Deer's allegation concerning the provision of a credit card number matters for purposes of personal jurisdiction only, the Court finds that Carter did not provide a credit card number to Donahue."

Plaintiff also claimed defendant provided Donahue with a fax number so Donahue could send information removed from Deer's computer system. Donahue stated in his deposition that during a conference call, Haweka Germany asked him to seek information that would be helpful in allowing it to terminate plaintiff's distribution agreement. Defendant was not a party to that call. Donahue later asked defendant for Haweka Germany's fax number, which defendant provided. However, the trial court found there was "simply no evidence to suggest Carter requested or knew that Donahue wanted [the fax number] to `send information removed from Deer's computer system.'"

Defendant stated in his deposition that he visited North Carolina once or twice a year between 1996 and 1999. On these visits, he typically flew into Charlotte and traveled with Hansen outside of North Carolina to meet with plaintiff's customers. Defendant admitted that at the end of these visits, he often conducted wrap-up meetings in North Carolina to discuss how best to follow up with the customers he visited during the trip.

Defendant's last visit to North Carolina was in February, 1999. Defendant stated the purpose of this visit was to celebrate Hansen's wedding. He described the visit as a three-day wedding celebration during which there was a "pseudo meeting" for Haweka distributors from around the world, giving the distributors a way to write off their travel to the wedding as a business expense. Hansen, however, stated in his deposition that the three-day event was the annual meeting for Haweka distributors, and while there was a party to celebrate his recent marriage, they "always have a party" at the annual distributors' meeting.

Craig Plummer, an equipment representative and salesperson for Heafner Tire and Products in Mecklenburg County, stated in an affidavit that defendant came to North Carolina in late 1997 or early 1998 to demonstrate Haweka products to at least three Heafner customers. According to Plummer, defendant was in North Carolina from a Monday to a Friday, during which he trained the Griffin Brothers Tire Company's employees on the use of Haweka products. Defendant denied coming to North Carolina for a week to demonstrate products, although he admitted he may have been in North Carolina for a day or two to visit potential customers. Defendant admitted that on a different occasion, he came to North Carolina and trained ten people in the use of Haweka products one weekend, traveled outside of North Carolina during the week to visit other customers, then returned to North Carolina the following weekend to train eleven more people. Hansen also referred to this training visit in his deposition, stating that defendant trained two classes of Heafner Tire salespeople in North Carolina, with each class lasting two days. He could not remember whether these classes took place on a weekend or during the week.

The trial court granted defendant's motion to dismiss and made, inter alia, the following findings of fact:

19. Carter committed no act or omission within North Carolina giving rise to the claims against him. Carter did not make a solicitation within North Carolina giving rise to the claims against him. The Court finds that Donahue initiated the series of telephone conversations between Donahue and Carter, and Carter's alleged return calls to Donahue were not essential elements of any claim asserted by Deer against Carter such that Carter could reasonably be expected to defend claims in North Carolina.

20. Carter's general contacts with the state, including an unspecified number of personal visits ending February, 1999, were not systematic and continuous such that Carter should be expected to defend claims filed nearly five years after his last visit that are factually unrelated to those prior contacts.

21. While Deer Corporation's offices, employees, and a number of its witnesses are located in North Carolina, the Court notes that other witnesses in this litigation are residents of European countries, making litigation in North Carolina highly inconvenient for Carter. Additionally, Carter is the father of three small children, including an infant. His wife suffers from severe post-natal depression making travel difficult for him.

22. After considering the quality, nature and quantity of contacts between Carter and North Carolina, the source and connection of the alleged causes of action to any contacts by Carter, the interest of the State of North Carolina with respect to the claims, and the convenience to the parties, the Court finds that any attempt by this Court to exercise personal jurisdiction over Carter with respect to plaintiff's claims would not comport with the due process rights provided for by the United States Constitution.

The trial court then concluded as a matter of law there was "no statutory basis contained in N.C.G.S. § 1-75.4 or elsewhere in the General Statutes upon which the Court may base the exercise of personal jurisdiction over Carter as to the claims asserted against him," and that "[a]ny attempt by this Court to exercise personal jurisdiction over Carter with respect to plaintiff's claims would not comport with the due process rights provided for by the United States Constitution." The trial court therefore granted defendant's motion to dismiss all claims against him for lack of personal jurisdiction. Plaintiff appealed.

Rule 60(b) Motio...