Dairy Farmers of Am., Inc. v. Bassett & Walker Int'l, Inc.

• Decision Date: 26 December 2012
• Docket Number: No. 12–1723.,12–1723.
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: DAIRY FARMERS OF AMERICA, INC., Plaintiff–Appellant v. BASSETT & WALKER INTERNATIONAL, INC., Defendant–Appellee.

702 F.3d 472

DAIRY FARMERS OF AMERICA, INC., Plaintiff–Appellant

v.BASSETT & WALKER INTERNATIONAL, INC., Defendant–Appellee.

No. 12–1723.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 20, 2012.

Filed: Dec. 26, 2012.

Jonathan P. Kieffer, argued, Sarah S. Ruane, Adam S. Davis, on the brief, Kansas City, MO, for appellant.

James M. Warden, argued, Brent LaPointe, on the brief, Kansas City, MO, for appellee.

Before MELLOY and BENTON, Circuit Judges, and BAKER, District Judge. ¹

BENTON, Circuit Judge.

Dairy Farmers of America, Inc. sued Bassett & Walker International, Inc. for breach of contract. Bassett moved to dismiss for lack of personal jurisdiction. The district court ² dismissed. DFA appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

DFA, a Kansas cooperative, has its principal place of business in Kansas City, Missouri. Bassett, an international commodities broker and a Canadian corporation, has its principal place of business in Toronto, Ontario. Bassett is not qualified to do business in Missouri; has no agent for service of process, offices, property, bank accounts, telephone listings, or employees here; and does not advertise or promote its business here. According to the record, no Bassett employee has ever entered Missouri.³

DFA and Bassett began their relationship in 2006. Between July 2009 and February 2011, Bassett purchased more than 3.5 million pounds of dairy products from DFA in about 80 transactions totaling $5 million. The parties did not have a long-term contract, agreeing to each transaction individually by phone. Alejandro Diaz represented Bassett from Toronto. George Butterfield represented DFA while traveling and from his home office in Michigan. He did receive approval for each transaction from DFA's Missouri headquarters. Butterfield spent three or four days each month in Missouri. Bassett communicated by phone and email with DFA's Missouri headquarters about delivery and billing.

Bassett received a $50,000 line of credit from DFA in 2009. Bassett twice sought increases in the line of credit: first to $250,000, and then to $400,000. Bassett sent these requests by email to a DFA employee who processed them in Missouri.

In March 2011, Bassett used the line of credit to buy 220,000 pounds of non-fat dry milk. Bassett sent email confirmation of the agreement to DFA headquarters in Missouri. The agreement called for shipment of the product from Colorado to Mexico; DFA manufactured no products in Missouri. The agreement also called for Bassett to remit payment to Illinois. DFA sued, claiming Bassett failed to pay. The district court dismissed the suit for lack of personal jurisdiction.

II.

This court reviews de novo the dismissal for lack of personal jurisdiction. Viasystems, Inc. v. EBM–Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 592 (8th Cir.2011). “To allege personal jurisdiction, ‘a plaintiff must state sufficient facts in the complaint to support a reasonable inference that the defendant[ ] can be subjected to jurisdiction within the state.’ ” Wells Dairy, Inc. v. Food Movers Int'l, Inc., 607 F.3d 515, 518 (8th Cir.) (quoting Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir.2004)), cert. denied,––– U.S. ––––, 131 S.Ct. 472, 178 L.Ed.2d 289 (2010). “If the defendant controverts or denies jurisdiction, the plaintiff bears the burden of proving facts supporting personal jurisdiction.” Id. Its “showing must be tested, not by the pleadings alone, but by the affidavits and exhibits presented with the motions and in opposition thereto.” Id. (internal quotation marks omitted).

“Personal jurisdiction can be specific or general.” Viasystems, 646 F.3d at 593. DFA agrees that Bassett is not subject to general jurisdiction in Missouri. “Specific jurisdiction refers to jurisdiction over causes of action arising from or related to a defendant's actions within the forum state....” Miller v. Nippon Carbon Co., Ltd., 528 F.3d 1087, 1091 (8th Cir.2008) (internal quotation marks omitted). “Specific personal jurisdiction can be exercised by a federal court in a diversity suit only if authorized by the forum state's long-arm statute and permitted by the Due Process Clause of the Fourteenth Amendment.” Viasystems, 646 F.3d at 593.

A.

Missouri's long-arm statute authorizes jurisdiction over any person or firm as to any cause of action arising from, among other things, that person or firm's “transaction of any business within this state” or “making of any contract within this state.” Mo.Rev.Stat. § 506.500.1(1), (2).

DFA contends that the district court should not have considered whether Missouri's long-arm statute limits jurisdiction. According to DFA, “Missouri courts take jurisdiction to the extent allowed by the due process clause.” ⁴ DFA begins and ends its inquiry with due process.

DFA misses the mark. While the long-arm statute extends jurisdiction to the limits of the Due Process Clause, it does so only for acts within its enumerated categories. The Missouri Supreme Court has held that the legislature intended the long-arm statute “to provide for jurisdiction, within the specific categories enumerated in the statutes, to the full extent permitted by the due process clause of the Fourteenth Amendment.” State ex rel. Metal Serv. Ctr. of Ga., Inc. v. Gaertner, 677 S.W.2d 325, 327 (Mo. banc 1984); see28 U.S.C. § 1652 (directing this court to follow the Missouri Supreme Court's interpretation of Missouri law). True, courts have often treated the statutory and constitutional inquiries together. See, e.g., K–V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 592 (8th Cir.2011); Johnson v. Arden, 614 F.3d 785, 794 (8th Cir.2010) (stating that Missouri's long-arm statute “confers jurisdiction to the extent allowed by the Due Process Clause”); Porter v. Berall, 293 F.3d 1073, 1075 (8th Cir.2002); Conway v. Royalite Plastics, Ltd., 12 S.W.3d 314, 318–19 (Mo. banc 2000). The inquiries, however, are separate. SeeBryant v. Smith Interior Design Grp., Inc., 310 S.W.3d 227, 231–32 (Mo. banc 2010) (analyzing the statutory and constitutional questions separately); Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 4 (Mo. banc 1997) (“In order for a non-resident defendant to subject itself to the long-arm jurisdiction of this state, two elements must be present. First, the suit must arise out of the activities enumerated in the long arm statute; second, the defendant must have sufficient minimum contacts with Missouri to satisfy due process requirements.” (internal citation omitted)); Bennett v. Rapid Am. Corp., 816 S.W.2d 677, 678 (Mo. banc 1991); State ex rel. Bank of Gering v. Schoenlaub, 540 S.W.2d 31, 33–34 (Mo. banc 1976); see also Viasystems, 646 F.3d at 593 n. 2 (noting that the Missouri Supreme Court treats the questions separately); Noble v. Shawnee Gun Shop, Inc., 316 S.W.3d 364, 370 (Mo.App.2010) (finding that to interpret the statute to confer jurisdiction in all cases that the constitution would permit “would effectively ignore the language of the long-arm statute”). This court will address the inquiries separately.

The district court found that Bassett is not subject to jurisdiction under Section 506.500.1(2) because it made no contract in Missouri. DFA does not dispute that finding on appeal. Instead, DFA contends that Bassett is subject to jurisdiction under Section 506.500.1(1) because it transacted business within Missouri.

Missouri courts construe “transaction of any business” broadly. Gaertner, 677 S.W.2d at 327. A person or firm transacts business by visiting Missouri or sending its product or advertising here. See Chromalloy, 955 S.W.2d at 4 (finding that the foreign actor transacted business by “travel[ing] to Missouri intending to contact a Missouri corporation and propose the purchase of one of its assets”); Gaertner, 677 S.W.2d at 327–28 (finding that the foreign actor “transacted business in Missouri by shipping materials into this state ... and retaking them after the work had been done”); State ex rel. Newport v. Wiesman, 627 S.W.2d 874, 877 (Mo. banc 1982) (finding that the foreign actor transacted business by establishing two franchised dealers in Missouri); Mead v. Conn, 845 S.W.2d 109, 112 (Mo.App.1993) (“Dr. Henderson did transact business in Missouri by sending the EKG test results to Missouri for analysis under a business relationship where he paid for said services and stood to profit from the same.”); Boatmen's First Nat'l Bank of Kansas City v. Bogina Petroleum Eng'rs, 794 S.W.2d 703, 704 (Mo.App.1990) (holding that a single visit by the foreign actor to Missouri was the transaction of business); see also Precision Const. Co. v. J.A. Slattery Co., 765 F.2d 114, 115–16 (8th Cir.1985) (finding jurisdiction under the Missouri statute where the foreign actor solicited orders from the forum, maintained offices and employees in the forum, and shipped product to the forum); Simpson v. Dycon Int'l, Inc., 618 S.W.2d 455, 457 (Mo.App.1981) (finding jurisdiction where the foreign actor sent advertising into Missouri and sold equipment to a business in Missouri pursuant to a distributorship agreement); cf. Schoenlaub, 540 S.W.2d at 33–34 (finding that a foreign bank did not transact business in Missouri when it “had no contacts with Missouri people or corporations except in the conduct of normal banking operations,” including paying drafts drawn on accounts of its customers received from Missouri banks).

On the other hand, the use of mail or telephone communications to Missouri is not by itself the transaction of business. Johnson Heater Corp. v. Deppe, 86 S.W.3d 114, 120 (Mo.App.2002); Capitol Indem. Corp v. Citizens Nat'l Bank of Fort Scott, N.A., 8 S.W.3d 893, 904 (Mo.App.2000); seeScullin Steel Co. v. Nat'l Ry. Utilization Corp., 676 F.2d 309, 312 (8th Cir.1982).

Bassett did not transact business within Missouri. Bassett sent no product here and ordered none from Missouri. It did not advertise here. No...