Biltmoor Moving and Storage Co. v. Shell Oil Co.
| Decision Date | 24 October 1979 |
| Docket Number | No. 79-1381,79-1381 |
| Citation | 606 F.2d 202 |
| Parties | BILTMOOR MOVING AND STORAGE COMPANY, a corporation, Plaintiff-Appellant, v. SHELL OIL COMPANY, a corporation and Great Southwest Warehouses, Inc., a corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Mark L. Bronson, Newman & Bronson, St. Louis, Mo., for plaintiff-appellant.
Steven P. Sanders, W. Stanley Walch, St. Louis, Mo., for defendants-appellees.
Before CASTLE, Senior Circuit Judge, SPRECHER and BAUER, Circuit Judges.
The issue on the appeal of this diversity action is whether the due process clause of the Fourteenth Amendment permits the defendants to be subjected to personal jurisdiction within the state of Illinois.
Shell Oil Company is a Delaware corporation with its principal place of business in Houston, Texas. In 1974 and 1975, one of its divisions, Shell Development Company, relocated its laboratories and offices from locations in New Jersey, Illinois, California and Texas to the Westhollow Research Center in Houston, Texas. 1
On February 14, 1975, Shell contracted with Great Southwest Warehouses, Inc., a Texas corporation engaged in the moving, storage and warehousing business with its principal place of business in Houston, Texas, to perform premove advisory services, packing, loading, transportation, unloading, placement and unpacking in order to consummate the relocation. 2
The contract between Shell and GSW required that GSW provide supervision and advisory services for the relocation; that GSW provide a "dedicated supervisor or lead man to furnish liaison with Shell research staff . . . (who) should make himself available for training sessions or seminars in the use of packing materials for packing of laboratory instruments, apparatus, and related equipment"; and although "much of . . . (Shell's) packing will be accomplished by . . . (Shell's) research staff," GSW will "provide supervision" for premove packing, loading, transportation, unloading and unpacking.
The contract provided that "requests against this order will be made from the various locations and in particular (from) the Shell Move Coordinator or his authorized representative." The contract continued: "These coordinators and their particular locations, mailing addresses and phone numbers are as follows," listing eight coordinators at eight separate locations, including A. P. Texada at Wood River, Illinois, which is located across the Mississippi River from St. Louis, Missouri.
The contract also provided for the specific rates and charges by the hour and for overtime for the various classifications of labor required to perform the contract at Wood River. The contract included "a listing of railroad TOFC offices, representatives, phone numbers, routing instructions, and in addition, contacts for shuttle service as required" at Wood River and "a listing of Allied Van Line offices, representatives, phone numbers," including those at Wood River.
John H. Paige, Jr., who described himself as "a salesman employed by" GSW, nevertheless also attested that he "was responsible during 1974 and 1975 for negotiating and obtaining on behalf of GSW" the Shell contract. Paige "was also responsible during 1975 for negotiating and obtaining an agreement with Biltmoor Moving and Storage Company . . . , pursuant to which Biltmoor, as GSW's subcontractor, would provide the materials, services and labor required under" the Shell contract at the research facility at Wood River, Illinois.
Biltmoor, a Missouri corporation with its principal place of business in St. Louis, Missouri, was "considered (as one of the) sub-contractors of Great Southwest Warehouse" as of March 21, 1975, when Alteration No. 1 () to the Shell-GSW contract was executed.
The Shell-GSW contract referred to GSW as the contractor and included the following provisions relating to the scope of the contractor's performance:
Contractor . . . shall be fully responsible for all work performed by subcontractors. Contractor shall conduct all operations in Contractor's own name and as an independent contractor, and not in the name of or as agent for Shell.
Contractor shall be solely responsible for all materials, equipment and work until the project is completed to Shell's satisfaction . . .
Contractor shall indemnify Shell against all loss or damage arising out of the negligence of Contractor or any subcontractor . . .
Contractor shall maintain at all times the following insurances, with insurers satisfactory to Shell . . .
Contractor . . . shall take and cause Contractor's and every subcontractor's employees, agents, licensees and permittees to take, all necessary precautions (including those required by Shell's safety regulations) to protect the premises and all persons and property thereon from damage or injury.
Shortly prior to the acknowledgment by Shell of Biltmoor as a subcontractor and on March 11, 1975, Joseph R. Eavenson, employed by Biltmoor, met with Paige of GSW, at the Shell facility at Wood River, where they were joined by Anderson, whom Eavenson recalled as the head of research and development for Shell, and by Texada, Orr and Baugh, employees of Shell. Eavenson's affidavit described the March 11 meeting as follows:
During the time Mr. Paige and I were at the Shell-Woodriver, Illinois plant, Mr. Paige discussed and explained the mechanics of the move at Woodriver and the manner and method by which Biltmoor would conduct the move at the Shell-Woodriver, Illinois plant. Mr. Paige and I walked through the plant and in essence walked through the various divisions and the entire move and Mr. Paige made suggestions, comments and criticisms with respect to the prototype crating which was to be used and gave instructions and directions pertaining to the manner in which the move was to take place at the Shell-Woodriver, Illinois site and assisted in providing coordination of the move with Biltmoor and Shell. Our discussion also included generally all phases and integral parts of the move including piggy-backing, crating, labor, special materials and coordinated his thinking with mine. Our meeting was held while the moving work was in progress after the date of the February 14, 1975 contract and the addendum to the contract appointing Biltmoor as subcontractor came a week or two later. The meeting with Mr. Paige was specifically for the purpose of approval by GSW of the method of operation, and to instruct as to the operation, because in the following month the prototype of crates being built were put into use at the Woodriver, Illinois site for the purpose of shipment.
Biltmoor proceeded for more than eight months to perform under its contract in moving the Shell-Wood River facility. GSW paid Biltmoor $144,948.79, but Shell and GSW have refused to pay the balance claimed due by Biltmoor of $327,347.42.
Biltmoor brought suit against Shell and GSW in 1976 in the Eastern District of Missouri, Eastern Division. The suit was dismissed without prejudice on January 4, 1978, with the district court finding that the contract between Biltmoor and GSW was made in Texas and that no contacts relating to the contract occurred in Missouri sufficient to give the court jurisdiction under Missouri's Long Arm Statute. The court noted that "all the contacts were in Illinois."
Biltmoor filed the present cause in the Southern District of Illinois, Southern Division (now the Central District), where it was dismissed for lack of personal jurisdiction, based upon a magistrate's recommendation finding that GSW was not transacting business in Illinois under the Illinois Long Arm Statute. The magistrate relied primarily upon the fact that Biltmoor was not an Illinois resident and that GSW's representative spent only part of one day in Illinois.
Both the Missouri and Illinois district courts dismissed GSW for lack of personal jurisdiction and then dismissed Shell for failure to obtain jurisdiction over an indispensable party.
The Illinois Long Arm Statute (Ill.Rev.Stat. c. 110, § 17) provides in pertinent part:
(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person . . . to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:
(a) The transaction of any business within this State; . . .
Inasmuch as the statute was intended to extend jurisdiction over non-residents to the fullest extent...
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