Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co.

• Decision Date: 24 August 1976
• Docket Number: 76-0-141,76-0-137,76-0-143,76-0-139 and 76-0-160.,Civ. No. 76-0-138
• Parties: AARON FERER & SONS CO., Debtor and Debtor in Possession, Plaintiff, v. ATLAS SCRAP IRON & METAL CO., Defendant. AARON FERER & SONS CO., Debtor and Debtor in Possession, Plaintiff, v. AMERICAN COMPRESSED STEEL CO., Defendant. AARON FERER & SONS CO., Debtor and Debtor in Possession, Plaintiff, v. BECKER METALS CORP., Defendant. AARON FERER & SONS CO., Debtor and Debtor in Possession, Plaintiff, v. COPALCO INTERNATIONAL CO., Defendant. AARON FERER & SONS CO., Debtor and Debtor in Possession, Plaintiff, v. SITKIN SMELTING & REFINING CO., Defendant. AARON FERER & SONS CO., Debtor and Debtor in Possession, Plaintiff, v. WIMCO METALS, INC., Defendant.
• Court: U.S. District Court — District of Nebraska

418 F. Supp. 674

AARON FERER & SONS CO., Debtor and Debtor in Possession, Plaintiff, v. ATLAS SCRAP IRON & METAL CO., Defendant.

AARON FERER & SONS CO., Debtor and Debtor in Possession, Plaintiff, v. AMERICAN COMPRESSED STEEL CO., Defendant.

AARON FERER & SONS CO., Debtor and Debtor in Possession, Plaintiff, v. BECKER METALS CORP., Defendant.

AARON FERER & SONS CO., Debtor and Debtor in Possession, Plaintiff, v. COPALCO INTERNATIONAL CO., Defendant.

AARON FERER & SONS CO., Debtor and Debtor in Possession, Plaintiff, v. SITKIN SMELTING & REFINING CO., Defendant.

AARON FERER & SONS CO., Debtor and Debtor in Possession, Plaintiff, v. WIMCO METALS, INC., Defendant.

Civ. Nos. 76-0-138, 76-0-143, 76-0-141, 76-0-137, 76-0-139 and 76-0-160.

United States District Court, D. Nebraska.

August 24, 1976.

Robert J. Murray, Omaha, Neb., for plaintiff.

Maureen E. McGrath and Steven Spitz, Omaha, Neb., for defendant, Copalco.

J. Leonard Schermer, St. Louis, Mo., and Irving B. Epstein, Omaha, Neb., for defendants, Atlas and Becker.

Thomas J. Flaherty, Omaha, Neb., for defendants, Sitkin and American Comp. Steel.

Eugene L. Pieper, Omaha, Neb., for defendant, Wimco.

MEMORANDUM

DENNEY, District Judge.

This matter comes before the Court upon the motions of defendants to dismiss for lack of personal jurisdiction subsequent to the submission of briefs and oral argument before the Court on July 30, 1976. The cases have been consolidated for decision of the issues presented by the defendants' motions.

Plaintiff, Aaron Ferer & Sons Co., a Nebraska corporation, debtor and debtor in possession, brought these actions under Sections 60, 67 and 70 of the Bankruptcy Act, 11 U.S.C. §§ 96, 107, 110, alleging that it purchased from each defendant certain metal goods which were to be shipped to a customer or customers of plaintiff. Plaintiff further alleges that defendants, within four months of plaintiff's filing of Chapter XI bankruptcy, and while plaintiff was insolvent, stopped shipment of the goods, or reclaimed them, or wrongfully collected proceeds thereby constituting a transfer made or suffered by plaintiff to or for the benefit of one of its unsecured creditors, for or on account of an antecedent debt, operating as a preferential transfer. In additional counts, plaintiff bases causes of action upon § 67(d)(2)(a) of the Bankruptcy Act, 11 U.S.C. § 107(d)(2)(a); §§ 64(a), 67 (c)(1)(A)(B) and 342 of the Bankruptcy Act, 11 U.S.C. §§ 104(a), 107(c)(1)(A), (B) and 742; § 70(e) of the Bankruptcy Act, 11 U.S.C. § 110(e); § 70(c) of the Bankruptcy Act, 11 U.S.C. § 110(c); and breach of contract. Plaintiff prays that the transfer of the goods be declared null and void and that defendants be directed to reconvey the goods to plaintiff or, if the goods have been converted, that plaintiff be awarded the sale proceeds or judgment.

Jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 1334 and §§ 23, 60(b), 67(e) and 70(e)(3) of the Bankruptcy Act, 11 U.S.C. §§ 46, 96(b), 107(e) and 110(e)(3).

LONG ARM STATUTE

Plaintiff attempts to invoke personal jurisdiction over each defendant pursuant to Neb.Rev.Stat. § 25-536(1)(a) and (d) (Cum. Supp.1974):

Jurisdiction over a person. (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;

(b) Contracting to supply services or things in this state;

(c) Causing tortious injury by an act or omission in this state;

(d) Causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;

(e) Having an interest in, using, or possessing real property in this state; or

(f) Contracting to insure any person, property, or risk located within this state at the time of contracting.

(2) When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him.

JURISDICTIONAL FACTS

Copalco International Company

All of the purchase contracts which are the subject of the complaint filed by Ferer against defendant, Copalco International Company (hereinafter referred to as Copalco), a Michigan corporation, were executed by Copalco in the State of Michigan. Each contract concerns metal sold by Copalco in Michigan for delivery to destinations outside of the State of Nebraska. John W. Barth, one of the partners of Copalco, testified by affidavit as follows:

Sales of metal that are or have been made by Copalco International Co. to Aaron Ferer & Sons Company are initiated by phone calls made by Aaron Ferer & Sons Company to Copalco in Michigan for the purpose of placing orders for the purchase of various quantities of metal from Copalco for shipment to destinations outside of Nebraska. To the best of Affiant's knowledge, Copalco does not and has not originated contact with Ferer in Nebraska to solicit Ferer to purchase its goods. Filing # 6.

The affidavit of Margaret Buckalew, Vice-President of Administration of Ferer, reflects that Ferer and Copalco had engaged in a continuous course of business dealings for a period of over one year totaling approximately $1,000,000.00. A typical transaction between Ferer and Copalco would be initiated by telephone. Contracts were usually prepared in Nebraska and sent to defendant and signed at defendant's place of business.

Atlas Scrap Iron & Metal Company

All of the purchase contracts which are the subject of the complaint filed by Ferer against defendant, Atlas Scrap Iron & Metal Co. (hereinafter referred to as Atlas), a Texas corporation, were executed by Atlas in the State of Texas. Each contract concerns metal sold by Atlas in Texas for delivery outside the State of Nebraska. Joseph B. Eisenberg, President of Atlas, testified by affidavit as follows:

4. The purchase order in question came into existence by a phone call initiated by plaintiff in Nebraska to Atlas in Texas.

5. None of the orders which plaintiff has attached to its affidavit were to be performed, either directly or indirectly, in Nebraska. None of the goods purchased were ever located in Nebraska, nor were such goods ever to pass through, come to rest, or be delivered in Nebraska.

. . . . .

8. All witnesses, evidence and relevant information which Atlas would need to defend itself in this action are located in Texas and it would impose an immense hardship, burden and expense on Atlas if it were made to defend this action in Nebraska.

The affidavit of Margaret M. Buckalew, Vice-President of Administration of Ferer, reflects that Ferer and Atlas had engaged in a continuous course of business for approximately two years prior to April 24, 1974, totaling approximately $500,000.00.

Sitkin Smelting & Refining Company

All of the purchase contracts which are the subject of the complaint filed by Ferer against defendant, Sitkin Smelting & Refining Co. (hereinafter referred to as Sitkin), a Pennsylvania corporation, were executed by Sitkin in Pennsylvania. Each contract concerns metal sold by Sitkin in Pennsylvania for delivery to destinations outside of the State of Nebraska. Robert B. Thompson, controller of Sitkin, testified by affidavit as follows:

2. That I have diligently searched and studied said books and records of the corporation and find that in all dealings with plaintiff herein, Sitkin Smelting & Refining acted as a broker, shipping materials to Baltimore, Maryland; Waterbury, Connecticut; Reading, Pennsylvania but not to Nebraska.

3. That I have searched the records of Sitkin Smelting & Refining, Inc., and find that in all instances Sitkin did no actual business in Nebraska other than sending billings to Aaron Ferer, plaintiff herein.

The affidavit of Margaret Buckalew, Vice-President of Administration of Ferer, reflects that Ferer and Sitkin had engaged in a continuous course of business dealings for a period of at least two years prior to Ferer's filing its Chapter XI petition on April 24, 1974. In July of 1974, Sitkin commenced a lawsuit in the United States District Court for the District of Nebraska against the United States National Bank of Omaha, to resolve a dispute between itself and the bank relating to the transaction in this lawsuit.

Becker Metals Corporation

All of the purchase contracts which are the subject of the complaint filed by Ferer against defendant, Becker Metals Corp. (hereinafter referred to as Becker), a Missouri corporation, were executed by Becker in the State of Missouri. Each contract concerns metal sold by Becker in Missouri for delivery to destinations outside the State of Nebraska. Stanley Plocker, an officer of Becker, testified by affidavit as follows:

3. Plaintiff Ferer's Affidavit is correct in its statements that all of the orders attached as Exhibits, including Exhibit R-5 were prepared by Plaintiff Ferer in the State of Nebraska and mailed to Defendant Becker in the State of Missouri. These contractual offers then became final upon acceptance by Defendant Becker in the State of Missouri.

. . . . .

5. None of the orders or contracts which Plaintiff Ferer has attached to its Affidavit were to be performed, either directly or indirectly, in the State of Nebraska. None of the goods purchased were ever located in the State of Nebraska, nor were such goods ever to pass through, come to rest, or to be delivered in the State of Nebraska.

. . . . .

8. All witnesses, evidence and relevant information which Defendant Becker would need to defend itself in this action are located in St. Louis, Missouri, and it would impose an immense hardship, burden and expense on Defendant Becker if it were made to defend this action in the State of Nebraska.

The affidavit of Margaret M. Buckalew, Vice-President of Administration of Ferer, reflects that...