Bennet v. Cincinnati Checker Cab Co., Inc., 1666.
Decision Date | 22 January 1973 |
Docket Number | No. 1666.,1666. |
Citation | 353 F. Supp. 1206 |
Parties | Margaret BENNET, Plaintiff, v. The CINCINNATI CHECKER CAB CO., INC., et al., Defendants. |
Court | U.S. District Court — Eastern District of Kentucky |
Frank M. Zier, Cincinnati, Ohio, for plaintiff.
Robert O. Smith, Cincinnati, Ohio, and John L. Spalding, Covington, Ky., for Cincinnati Checker Cab Co.
Robert Cetrulo, Covington, Ky., for Omega Import and Alfred Light.
The record of this case is before the court on the motion by defendant, Omega Import Company, to quash service of process, or, in the alternative, for summary judgment. The parties having been placed on terms to do so have filed briefs and the motions are now before the court for decision.
The complaint states that on August 11, 1971, plaintiff, Margaret Bennet, hired a taxi to transport her from her place of employment in Newport to her home in Covington, Kentucky. It is further alleged that at her destination the driver, an ex-convict, shot her with a revolver imported by the defendant, Omega Import Company. To recover for her alleged damages, plaintiff has sued, among others, Omega Import Company. Service on Omega was affected through the Kentucky Secretary of State pursuant to KRS 454.210.
Omega Import Company is a sole proprietorship under the exclusive control of Alfred Light, defendant, with its principal place of business in New York City. Omega's uncontroverted affidavit states as follows: It has never maintained agents or a business office in Kentucky and it is not incorporated or licensed to do business within this state; its sole contact with Kentucky is the mail-order shipment of firearms to licensed dealers in response to occasional telephone solicitations; the weapon allegedly used to injure plaintiff was mailed to a Newport, Kentucky, gun dealer on June 3, 1968; income from Kentucky orders amounted to five percent of Omega's total income during 1968. Omega claims service of process should be quashed because this court lacks in personam jurisdiction.
It is well settled that, so long as the requirements of due process enunciated in International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), are observed, the law of the forum determines whether service is proper. Velandra v. Regie Nationale des Usines Renault, 336 F.2d 292 (6th Cir. 1964). The relevant Kentucky statute is KRS 454.210; there, jurisdiction over nonresidents is predicated on the extent of certain delineated local business relations. Plaintiff claims the Kentucky requirements are satisfied since Omega's local conduct falls within one of the following activities noted in Section (2)(a) of this statute:
It must initially be recognized, as outlined in the International Shoe case, supra, that these factors cannot be rigidly applied:
"It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be . . . mechanical or quantitative." 326 U.S. at 319, 66 S.Ct. at 159.
The few Kentucky opinions construing the "doing business" requirement involve facts somewhat different from those presented in this case. The existence of a contractual relationship led the court, in Post v. American Cleaning Equipment Corp., 437 S.W.2d 516 (Ky. 1969), to hold that the "doing business" criterion was satisfied. In Field Enterprises Educational Corp. v. Hopkins, 378 S.W.2d 797 (Ky.1964), the defendant "not only employed salesmen in this state but had a `division manager' who maintained an office in Louisville." There was thus little doubt that the corporation was subject to suit in Kentucky.
Note that in Finley, unlike the case at bar, the foreign corporation's local involvement was heightened by the presence of agents within the state.
The Kentucky nonresident jurisdiction statute has, on occasion, been construed by the federal courts. Etheridge v. Grove Manufacturing Co., 415 F.2d 1338 (6th Cir. 1969), applied an earlier, more restrictive statutory provision. The personal involvement of the foreign corporation within the state was held sufficient to satisfy the "doing business" requirement:
While Omega does occasionally sell its product locally, this activity is carried out by correspondence with independent merchants, and not through personal contact. Comparable situations were examined in two federal decisions: Tetco Metal Products, Inc. v. Langham, 387 F. 2d 721 (5th Cir. 1968), and Agrashell, Inc. v. Bernard Sirotta Co., 344 F.2d 583 (2nd Cir. 1965). In the former case, Tetco, the Illinois manufacturer of a defective water heater, was sued by an Alabama consumer who had purchased the heater from an independent local dealer. Tetco had no bank account, place of business, manufacturing plant, or property in Alabama, and employed no local agents. Its contacts with the forum consisted solely of unsolicited orders from independent Alabama dealers followed by the shipment of merchandise to that state. The Fifth Circuit held that these actions were not of sufficient magnitude to warrant a finding of doing business.
Agrashell involved the interpretation of the New York "doing business" requirement. There, the defendant corporation negotiated and consummated contracts with New York residents by telephone and mail. In ruling that the foreign concern was not properly within the jurisdiction of the court, the opinion distinguished cases where the defendant's representatives are sent to the forum to solicit and negotiate contracts.
In spite of the above authority, this court remains unpersuaded that Omega is not "doing business" in Kentucky. Ostensibly, Omega's Kentucky involvement is very much the same as that found to be insufficient for jurisdiction in Tetco and Agrashell. In reading those cases, however, several factors are noted: (1) they were not based upon the Kentucky statute; (2) the Kentucky Court of Appeals might hold that Omega's conduct is within KRS 454.210, in accordance with its earlier statement that the quantity and nature of business required for jurisdiction is diminishing. Charles Zubik & Sons, Inc. v. Marine Sales & Service, 300 S.W.2d 35 (Ky.1957). In...
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