665 F.2d 480 (4th Cir. 1981), 79-1481, Kimbrel v. Neiman-Marcus

Docket Nº:79-1481.
Citation:665 F.2d 480
Party Name:Sam C. C. KIMBREL, Appellee, v. NEIMAN-MARCUS, Appellant.
Case Date:October 16, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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665 F.2d 480 (4th Cir. 1981)

Sam C. C. KIMBREL, Appellee,



No. 79-1481.

United States Court of Appeals, Fourth Circuit

October 16, 1981

Argued May 6, 1981.

Gordon D. Schreck, Charleston, S. C. (Buist, Moore, Smythe & McGee, Charleston, S. C., on brief), for appellant.

W. Brantley Harvey, Jr., Beaufort, S. C. (Harvey, Battey & Bethea, P. A.), Beaufort, S. C., on brief), for appellee.

Before SPROUSE and ERVIN, Circuit Judges, and RAMSEY, [*] District Judge.

RAMSEY, District Judge.

Appellee Sam C. C. Kimbrel sued Neiman-Marcus in the district court for breach of contract. Jurisdiction was claimed under diversity of citizenship. 28 U.S.C. § 1332. Kimbrel is a citizen of South Carolina and Neiman-Marcus is a corporation incorporated and having its principal place of business in Dallas, Texas. Neiman-Marcus moved to dismiss the complaint for lack of jurisdiction over the person or, in the alternative, to quash the service of process.

The lower court denied the motion to dismiss, finding that the South Carolina long-arm statute conferred jurisdiction. In the Order denying the motion, the court noted that although Neiman-Marcus' business contacts with South Carolina were "very small relative to its overall business," they were sufficient to satisfy the "minimum contacts" required by due process. The district court allowed Neiman-Marcus an immediate appeal from its Order, pursuant to 28 U.S.C. § 1292(b). Neiman-Marcus' Petition for Leave to Appeal was in due course granted by Order of this Court.

The South Carolina long-arm statute, South Carolina Code Ann. § 36-2-803 (1976), provides in pertinent part:

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(1) a Court may exercise personal jurisdiction over a person who acts directly or by an agent as to a cause of action arising from the person's

(a) transacting any business in this State;

(g) entry into a contract to be performed in whole or part by either party in this state.

The determination of whether personal jurisdiction may be exercised over an out of state defendant under a long arm statute involves a two-step inquiry. First, the Court must determine whether the terms of the statute itself confer personal jurisdiction. This determination requires application of the pertinent state law. The Court must then examine federal law and determine whether the exercise of jurisdiction in the particular case would violate due process. Hardy v. Pioneer Parachute Co., Inc., 531 F.2d 193 (4th Cir. 1976).

The district judge correctly found that the South Carolina long-arm statute seeks to assert jurisdiction and on its face allowed the exercise of personal jurisdiction over Neiman-Marcus. South Carolina has the stated policy of extending by long-arm the jurisdiction of its courts to the farthest perimeter allowed by due process. O'Neal v. Hicks Brokerage Co., 537 F.2d 1266, 1267 (4th Cir. 1976).

In his complaint, Kimbrel alleges that Neiman-Marcus agreed to purchase from him "gold-framed miniature masterpieces" by Joseph Bowler for $24,000 each and that such miniatures were to be featured in Neiman-Marcus' 1977 Christmas catalog. A "Memorandum of Understanding" signed by Kimbrel and Ron Foppen, director of Neiman-Marcus' Mail Order Division, provides:

Sam C. C. Kimbrel will commission Joseph Bowler to paint a miniature portrait of customer's choice (not more than two people). Customer (two people) will visit Hilton Head Island for a period of three days to pose for Mr. Bowler.... (emphasis added).

The terms of this "Memorandum of Understanding" make it clear that the parties contemplated part of the performance required under the...

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