Conocophillips Co. v. Jump Oil Co.

• Decision Date: 31 May 2013
• Docket Number: Case No. 12–CV–0249–CVE–PJC.
• Citation: 948 F.Supp.2d 1272
• Parties: CONOCOPHILLIPS COMPANY, Plaintiff, v. JUMP OIL CO., INC., RPM Investment Company, Inc., Jason A. Miltenberger, Melissa Moore Milternberger, David A. Miltenberger, Steven A. Miltenberger, and Sondra Miltenberger, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

948 F.Supp.2d 1272

CONOCOPHILLIPS COMPANY, Plaintiff,

v.JUMP OIL CO., INC., RPM Investment Company, Inc., Jason A. Miltenberger, Melissa Moore Milternberger, David A. Miltenberger, Steven A. Miltenberger, and Sondra Miltenberger, Defendants.

Case No. 12–CV–0249–CVE–PJC.

United States District Court, N.D. Oklahoma.

May 31, 2013.

Darin L. Brooks, Beirne Maynard & Parsons LLP, Houston, TX, John G. George, Jr., Matthew Fisher Wymer, Beirne Maynard & Parsons LLP, San Antonio, TX, Robert J. Winter, Pray Walker PC, Tulsa, OK, for Plaintiff.

Charles R. Swartz, Lawrence Richard Murphy, Jr., Tracy Wayne Robinett, Robinett & Murphy, Barry Greg Reynolds, Mary Lynn Lohrke, Titus Hillis Reynolds

Love Dickman & McCalmon, Tulsa, OK, for Defendants.

OPINION AND ORDER

CLAIRE V. EAGAN, District Judge.

Now before the Court are the following motions: Defendant Jason Miltenberger's Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. # 14); Defendant Jason Miltenberger's Motion to Dismiss for Improper Venue, or, in the Alternative, Motion to Transfer and Brief in Support (Dkt. 15, 17); Defendant Jason Miltenberger's Motion to Dismiss for Insufficient Service of Process (Dkt. # 16); Defendant M. Miltenberger's Motion to Dismiss for Lack of Personal Jurisdiction and for Improper Venue, or, in the Alternative, Motion to Transfer and Brief in Support Thereof (Dkt. # 18); Defendant RPM Investment Company's Motion to Dismiss for Improper Venue, or, in the Alternative, Motion to Transfer and Brief in Support (Dkt. # 20); Defendant Sondra Miltenberger's Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. # 23); Defendant Sondra Miltenberger's Motion to Dismiss for Improper Venue, or, in the Alternative, Motion to Transfer and Brief in Support (Dkt. # 24); Defendant Sondra Miltenberger's Motion to Dismiss for Insufficient Service of Process (Dkt. # 25); Defendant Steven A. Miltenberger's Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. # 26); Defendant Steven A. Miltenberger's Motion to Dismiss for Improper Venue, or, in the Alternative, Motion to Transfer and Brief in Support (Dkt. # 27); and Defendant Steven A. Miltenberger's Motion to Dismiss for Insufficient Service of Process (Dkt. # 28). Defendant Jump Oil Company, Inc. (Jump Oil) has also filed motions to dismiss (Dkt. 29, 30, 31), but Jump Oil has filed for bankruptcy and plaintiff's claims against Jump Oil have been stayed. Dkt. # 61.

I.

Jump Oil markets and distributes gasoline and other petroleum-based products to fuel stations in Missouri and Oklahoma. Dkt. # 9, at 3. Jump Oil is a Missouri corporation with its principal place of business in Missouri, but it is registered to do business in Oklahoma. Dkt. # 37–1. Jump Oil supplies fuel to seven service stations in Oklahoma, but the vast majority of the fuel stations to which it provides fuel are located in Missouri. In March 2007, Jump Oil and ConocoPhillips Company (ConocoPhillips) negotiated a Branded Marketer Agreement (BMA) under which ConocoPhillips allowed Jump Oil to purchase petroleum products and use ConocoPhillip's marketing materials. ¹ In return, Jump Oil agreed to purchase a minimum amount of fuel and “follow ConocoPhillips guidelines regarding image standards, product identification, price and payment terms, credit cards, and network access.” Dkt. # 9, at 3. ConocoPhillips claims that while the BMA was being negotiated, Jump Oil's president, Steven Miltenberger, and other representatives of Jump Oil made several visits to ConocoPhillips' office in Bartlesville, Oklahoma and the BMA was executed by both parties in Bartlesville.² Paul Curtis, Director of Credit for ConocoPhillips, states that these contacts occurred beginning in March 1, 2010 and continued up until 2012. Dkt. # 37–2, at 4.

In January 2009, ConocoPhillips discontinued the Marketing Service Allowance Program, and amended the BMA to implement a new program known as the Branded Incentive Program (BIP). Dkt. # 9–2. Under the BIP, ConocoPhillips “provided monetary incentive payments to Jump Oil [and] ... Jump Oil agreed to remain current on ConocoPhillips brand and image standards and to purchase a minimum volume of gasoline and distillates from ConocoPhillips.” Dkt. # 9, at 3. The parties executed a second amendment to the BIP for the purpose of updating Jump Oil's address, but no substantive changes were made to the BMA. ³ Dkt. # 9–3. ConocoPhillips claims that, in March and April 2010, Jason Miltenberger, Melissa Moore Miltenberger, David A. Miltenberger, Steven Miltenberger, and Sondra Miltenberger executed personal guaranties, and that RPM Investment Company, Inc. (RPM) executed a corporate guaranty.⁴ Jump Oil also executed a security agreement granting ConocoPhillips rights to certain collateral, and ConocoPhillips filed a UCC Financing Statement with the Missouri Secretary of State. Dkt. # 9–6. The personal guaranties require the guarantor to send notice to ConocoPhillips in Bartlesville in the event that the guarantor attempts to revoke the guaranty or, if the guarantor dies, the executor of the guarantor's estate is required to mail notice to ConocoPhillips in Bartlesville. Dkt. # 9–4. There is no evidence that any such notices were actually sent to ConocoPhillips.

ConocoPhillips alleges that Jump Oil failed to pay all amounts owed under the parties' agreement. On December 15, 2011, ConocoPhillips sent a written demand to Jump Oil seeking immediate payment of the full amount due. Dkt. # 9, at 4. On April 30, 2012, ConocoPhillips filed this case alleging that Jump Oil breached the BMA by failing to pay for nearly $3 million of fuel and, with other charges and fees, ConocoPhillips seeks $3,215,719.12 in damages from Jump Oil. ConocoPhillips also alleges breach of guaranty claims against each of the guarantors. Sondra Miltenberger, Jason Miltenberger, and Steven Miltenberger ⁵ have submitted affidavits stating that:

2. I am a resident of the State of Missouri. I have never been a resident of the State of Oklahoma.

3. I do not do business in the State of Oklahoma. I do not own, use, or possess any real or personal property in the State of Oklahoma.

4. I do not pay any type of Oklahoma tax.

5. Upon information and belief, the [BMA] that is the subject of Plaintiff's First Amended Complaint ... was negotiated, executed, and performed in the State of Missouri.

...

10. None of the events regarding the execution or performance of the alleged Personal Guaranty occurred in Oklahoma nor were the events related to any assets or property in Oklahoma. The Personal Guaranty is not governed by Oklahoma law.

11. I do not [sic], and have never had, minimum contacts to the State of Oklahoma and have never expected that I could be hauled [sic] into any State or Federal Court in Oklahoma.⁶

12. If [this case] were to proceed in Oklahoma, I would be severely burdened and prejudiced because of the long distance from my residence in Missouri and because all witnesses that I might call to defend against Plaintiff's claims would also have to travel from Missouri.

Dkt. # 14–1; Dkt. # 23–1; Dkt. # 26–1. Melissa Miltenberger is a veterinarian living in Wildwood, Missouri. She claims that her signature on a personal guaranty was forged and she had no knowledge of the guaranty until this case was filed.⁷ Dkt. # 18–1, at 1–2. She also states that she is not a resident of Oklahoma and does not do business in Oklahoma. She divorced Jason Miltenberger in 2010 and, in May 2008, she transferred any interest she may have had in Jump Oil to her former husband as part of their separation agreement. Id. at 2. Defendants Jump Oil, RPM, Steven Miltenberger, Sondra Miltenberger, and David Miltenberger reside within the Western District of Missouri, and defendants Jason Miltenberger and Melissa Miltenberger reside within the Eastern District of Missouri. On February 25, 2013, Jump Oil filed a suggestion of bankruptcy stating that it had filed a bankruptcy petition in the United States Bankruptcy Court for the Eastern District of Missouri. Dkt. # 59. The Court stayed the case as to plaintiff's claims against Jump Oil, but found that the automatic stay did not extend to plaintiff's claims against the remaining parties. Dkt. # 61.

II.

As to defendants' motions to dismiss for lack of personal jurisdiction, plaintiff bears the burden of establishing that the Court has personal jurisdiction over the defendants. OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998). “When a district court rules on a Fed.R.Civ.P. 12(b)(2) motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, ... the plaintiff need only make a prima facie showing of personal jurisdiction to defeat the motion.” Id. (citations omitted). “The plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant.” Id. at 1091. “In order to defeat a plaintiff's prima facie showing of jurisdiction, a defendant must present a compelling case demonstrating ‘that the presence of some other considerations would render jurisdiction unreasonable.’ ” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). The allegations of the complaint must be accepted as true to the extent they are uncontroverted by a defendant's affidavit. Taylor v. Phelan, 912 F.2d 429, 431 (10th Cir.1990). If the parties provide conflicting affidavits, all factual disputes must be resolved in plaintiff's favor and a prima facie showing of personal jurisdiction is sufficient to overcome defendant's objection. Id.

Defendants' motions to dismiss for improper venue fall under Fed.R.Civ.P. 12(b)(3). Once an issue as to venue has been raised, the plaintiff bears the burden to show that venue is proper. McCaskey v. Continental Airlines, Inc., 133 F.Supp.2d 514, 523 (S.D.Tex.2001). When venue is challenged under Rule 12(b)(3) and the...