935 F.2d 1454 (6th Cir. 1991), 90-1647, Theunissen v. Matthews

Docket Nº:90-1647.
Citation:935 F.2d 1454
Party Name:Herman THEUNISSEN and Ann Theunissen, Plaintiffs-Appellants, v. Sid MATTHEWS d/b/a Matthews Lumber Transfer, Defendant-Appellee.
Case Date:June 24, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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935 F.2d 1454 (6th Cir. 1991)

Herman THEUNISSEN and Ann Theunissen, Plaintiffs-Appellants,


Sid MATTHEWS d/b/a Matthews Lumber Transfer, Defendant-Appellee.

No. 90-1647.

United States Court of Appeals, Sixth Circuit

June 24, 1991

Submitted March 22, 1991.

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John D. Tallman, Grand Rapids, Mich., for plaintiffs-appellants.

Thomas L. Misuraca, David M. Shafer, Garan, Lucow, Miller, Seward, Cooper & Becker, Detroit, Mich., for defendant-appellee.

Before KRUPANSKY and NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Herman and Ann Theunissen, Plaintiff-Appellants in this personal injury suit, appeal the district court's dismissal of their action for lack of personal jurisdiction over Defendant-Appellee Sid Matthews, a Canadian lumber yard operator. On appeal, the Theunissens do not challenge the rules of law applied by the district court; indeed, they concede that the court accurately stated the substantive law governing the issue. Rather, they argue that in reaching its decision on the question of jurisdiction, the court below improperly decided disputed

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questions of fact based upon the affidavits alone. We agree, and for the reasons that follow we reverse and remand.


Herman Theunissen (Theunissen or Appellant) is a truck driver for Direct Transit Lines, Inc., a trucking company based in Grand Rapids, Michigan. On March 10, 1988, he traveled to Matthews Lumber Transfer, located in Windsor, Ontario, Canada, to pick up a load of lumber destined for Weyerhaeuser Co. in Westland, Michigan. During the loading, his hand was crushed by a "hi-lo", a forklift-type machine operated by an employee of Matthews Lumber.

After the accident, Theunissen filed suit against Matthews Lumber in Kent County, Michigan, Circuit Court. Matthews removed the case to the United States District Court for the Western District of Michigan and moved for dismissal. Theunissen voluntarily dismissed the action and re-filed it in the Eastern District of Michigan, casting it as an action against Sid Matthews (Matthews or Appellee), a sole proprietor doing business as Matthews Lumber.

On February 13, 1990, Matthews again moved to dismiss the action under Rule 12(b)(2) of the Federal Rules of Civil Procedure, asserting the district court lacked personal jurisdiction over him, and alternatively, under the doctrine of forum non conveniens. In support of this motion, he filed an affidavit which, in short, disclaimed almost any jurisdictional contact with the state of Michigan. Matthews' affidavit stated that he was a citizen of Canada--not of the United States; that his business, a sole proprietorship, was located wholly within Windsor, Ontario, Canada; that it had no locations or property in the United States and employed no persons in the U.S.; that it had no bank accounts or other accounts in the U.S. and paid no taxes here; did not advertise in the U.S.; held no license to engage in business in the U.S. and conducted no business here. It further stated that the forklift involved in Theunissen's injury had been manufactured by a Canadian company and was leased from a Canadian company. Matthews stated that his sole contacts with the U.S. were a telephone listing in the Detroit yellow pages directory and a post office box in Royal Oak, Michigan. 1

Three weeks later, Theunissen filed his opposition to Matthews' motion, in support of which he submitted his own affidavit and that of Ms. Doreen Montee, his attorney's secretary. Theunissen's affidavit repeated that on the day of his injury he was working for Direct Transit and was scheduled to pick up lumber for delivery to Weyerhaeuser. Theunissen stated that he picked up lumber from Matthews for delivery "to customers of ... Matthews in the State of Michigan several times before his injury." He also stated "on information and belief" that during 1988 and the first nine months of 1989 other Direct Transit drivers picked up 186 loads of lumber from Matthews "at [Matthews'] request" for delivery to "customers of ... Matthews located in the United States, [including some] in the State of Michigan." Finally, he stated, again on information and belief, that other Michigan trucking companies picked up loads for delivery to Matthews' "customers" in Michigan and elsewhere in the United States and that Matthews did conduct business within the United States. Doreen Montee's affidavit stated that she had called the post office where Matthews' U.S. post office box was located, and that a postal worker gave a Michigan address for Matthews. 2

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With his reply to Appellant's opposition, Matthews submitted a second affidavit which reasserted his Canadian citizenship; stated his address in Windsor, Ontario, Canada; and clarified in more detail how his business operates. Specifically, he stated that Matthews Lumber Transfer consisted of a lumber reloading business and storage yard. He explained that his customers were wood wholesalers who purchased lumber from mills in Canada and arranged for its shipment to his yard for unloading and storage pending resale. According to Matthews, when the wholesaler found a buyer, the wholesaler, not Matthews, made arrangements for the pick up and delivery of the lumber from Matthews' yard to its ultimate destination. Matthews stated that neither he nor his company assumed ownership of the lumber at any point during the transactions; that he had no control over where it came from or where it ultimately was shipped; and had no contact with the wholesalers' customers.

Additionally, Matthews explained that the address in Michigan that the postal worker gave as Matthews' residence belonged to a former girlfriend whom Matthews had asked to open the post office box for him. Matthews stated that the girlfriend made the arrangements for the box as a favor to him and apparently gave her own address rather than his when the postal worker asked for a residence address for its records. Matthews stated that he kept no property at the address and had not dated the woman for some time.

On April 16, 1990, the district court held a hearing on Matthews' motion to dismiss. At the hearing, the court expressed the view that it was without personal jurisdiction over Matthews based upon the facts presented in the parties' affidavits. Theunissen then requested time for further discovery to investigate the exact nature of Matthews' business. The court initially denied this request stating that Theunissen had had enough time for discovery. Then the court reconsidered, offering

if you can cite me the case that you think closest approximates the circumstances here that you think allows for long arm jurisdiction, I'll look at it. If that case persuades me that I should give you a chance at discovery, I'll do it. I want to know the case you rely on for precedent.... I think ... the showing that has been made thus far is so minimal that it would be an abuse to allow the discovery.

Theunissen offered no citation to support further discovery. The court stated that it mattered little that Theunissen believed Matthews had hired his employer, Direct Transit, because the trucking company merely picked up lumber in Windsor and brought it back to the United States. The court concluded these facts did not establish that the Canadian firm was doing business in the United States and not merely in Canada.

After the hearing, Appellant filed the affidavit of Eugene Fowler, Direct Transit's Administrative Manager. Fowler stated he had searched the company's computerized business records and that they confirmed Direct Transit had picked up 252 loads of lumber from Matthews' yard between July 1988 and April 1990. He further stated that Matthews was the company's customer on 10 of those shipments. To this affidavit, Theunissen attached copies of the shipping orders for eight of the ten shipments. The copies of these invoices, included as exhibits in the record, are of poor quality; however, it appears that Matthews' name may be found on only two of the eight documents.

On May 10, 1990, the court entered a memorandum and order dismissing the action for lack of personal jurisdiction over the defendant. At the outset, the court made a series of factual findings that largely adopted Matthews' assertions regarding the operation of his business.

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Concerning Theunissen's affidavit, the court stated:

[It] contains statements of fact that ordinarily might establish that Matthews Lumber maintains other contacts with the state of Michigan and, perhaps, other states.... However, given Matthews' uncontroverted affidavit explaining the nature of his business, the Court finds that these contacts do not exist.

In favor of the "plausible" and "uncontroverted" explanation Matthews offered in his affidavit, the lower court also discounted Theunissen's assertion, supported by the Montee affidavit, that Matthews maintained a residence in Oak Park, Michigan. Finally, the district judge found the Fowler affidavit and its accompanying shipping orders only confirmed Matthews' account of his business operations. While acknowledging the Fowler affidavit indicated Matthews had paid Direct Transit for the shipment of ten loads of lumber into the United States, the court seemed dissatisfied by Appellant's failure to explain why Matthews had not paid for the other 242 shipments Direct Transit had picked up from Matthews Lumber Transfer.

Finding all of the foregoing asserted contacts nonexistent, the court examined whether the directory listing and the post office box together constituted sufficient contacts to sustain limited personal jurisdiction over Matthews. It concluded these contacts did not suffice because they failed to indicate that Matthews had purposefully...

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