Brandi v. Belger Cartage Service, Inc.

• Decision Date: 13 January 1994
• Docket Number: Civ. A. No. 93-2134-GTV.
• Citation: 842 F. Supp. 1337
• Parties: Ludene BRANDI and Robert Brandi d/b/a Precision Systems Furniture Refurbishing, Plaintiffs, v. BELGER CARTAGE SERVICE, INC., Valley Transportation and Warehouse Co., Inc., d/b/a Valley North American, North American Van Lines, Inc., and Professional Transportation Brokers, Inc., Defendants.
• Court: U.S. District Court — District of Kansas

842 F. Supp. 1337

Ludene BRANDI and Robert Brandi d/b/a Precision Systems Furniture Refurbishing, Plaintiffs, v. BELGER CARTAGE SERVICE, INC., Valley Transportation and Warehouse Co., Inc., d/b/a Valley North American, North American Van Lines, Inc., and Professional Transportation Brokers, Inc., Defendants.

Civ. A. No. 93-2134-GTV.

United States District Court, D. Kansas.

January 13, 1994.

Edward L. Bigus, Overland Park, KS, Lawrence W. Bigus, Kenneth E. Bigus, Kansas City, MO, for plaintiffs.

Kent M. Bevan, Frank W. Taylor, Patrick K. McMonigle, Brian Schmidt, Dysart, Taylor, Penner, Lay & Lewandoski, Kansas City, MO, for Belger Cartage Service, Inc.

Anthony F. Rupp, Charles J. Hyland, Shughart, Thomson & Kilroy, Overland Park, KS, for Valley Transp. and Warehouse Co., Inc., North American Van Lines, Inc.

Tim S. Haverty, Tamara Wilson Setser, Hillix, Brewer, Hoffhaus, Whittaker & Wright, Kansas City, MO, for Professional Transp. Brokers, Inc.

MEMORANDUM AND ORDER

VAN BEBBER, District Judge.

This case is before the court on the Motion to Dismiss (Doc. 31) filed by Defendant Professional Transportation Brokers hereinafter Professional. Plaintiffs have responded and oppose the motion. In its motion, defendant Professional moves the court to dismiss the complaint filed against it for lack of personal jurisdiction and subject matter jurisdiction. For the reasons stated in this memorandum and order, the motion is denied.

Professional contends that it would violate the limitations of due process for this court to exercise personal jurisdiction over it, as well as fail to comport with the provisions of the Kansas long-arm statute. Additionally, Professional contends that the court should decline to exercise its supplemental subject matter jurisdiction over Professional because plaintiffs' claims against Professional are based solely on state law and are not so related to the federal question claims asserted by plaintiffs against other defendants as to warrant the exercise of supplemental jurisdiction.

I. Personal Jurisdiction

The principles followed in evaluating a motion to dismiss for lack of personal jurisdiction have often been restated by courts in this district. The plaintiff has the burden of establishing personal jurisdiction over a defendant, but the burden of proof varies depending upon the procedure used to determine the issue. The district court has discretion to consider a motion to dismiss for lack of jurisdiction on the basis of affidavits and other written materials. See Federal Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir.1992) (citations omitted). If a motion to dismiss for lack of jurisdiction is submitted prior to trial on the basis of affidavits and other written materials, a plaintiff is initially required only to make a prima facie showing to avoid dismissal. Id.; Williams v. Bowman Livestock Equip. Co., 927 F.2d 1128, 1130 (10th Cir. 1991); Behagen v. Amateur Basketball Ass'n, 744 F.2d 731, 733 (10th Cir.1984) (citations omitted), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985). In the present case, affidavits have been submitted to the court by all parties.

The allegations set forth in the complaint must be accepted as true to the extent they are not controverted by the defendant's affidavits. Williams v. Bowman Livestock Equip. Co., 927 F.2d at 1130-31 (quoting Behagen v. Amateur Basketball Ass'n, 744 F.2d at 733). "However, only the well-pled facts of plaintiff's complaint, as distinguished from mere conclusory allegations, must be accepted as true." Ten Mile High Indus. Park v. Western Plains Service Corp., 810 F.2d 1518, 1524 (10th Cir.1987) (citing Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976)). The plaintiff has the duty to support jurisdictional allegations in a complaint by competent proof of the supporting facts if the jurisdictional allegations are challenged by an appropriate pleading. Pytlik v. Professional Resources, Ltd., 887 F.2d 1371, 1376 (10th Cir.1989) (citing Becker v. Angle, 165 F.2d 140, 141 (10th Cir.1947)).

If the parties present conflicting affidavits, all factual disputes must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing will withstand a contrary presentation by the party moving to dismiss for lack of personal jurisdiction. Williams, 927 F.2d at 1130-31; Behagen, 744 F.2d at 733. However, to be sufficient to put the contested facts in issue, affidavits submitted in support of or in opposition to motions to dismiss for lack of jurisdiction must comply with the requirements of Fed.R.Civ.P. 56(e), i.e., they must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. See Federal Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d at 175 & n. 6.; Thompson v. Chambers, 804 F.Supp. 188, 191 (D.Kan.1992).

As established by the affidavits, the context in which plaintiffs' claims against Professional arose and the critical jurisdictional facts, construed in favor of the plaintiffs, are as follows. Professional is a Colorado corporation with its principal place of business in Colorado. Professional is engaged in the business of arranging for the interstate shipment of property by motor carrier throughout the continental United States. Professional occasionally arranges for the shipment of freight to, from, and through the state of Kansas. However, Professional does not have an office in the state of Kansas, is not authorized to do business in the state of Kansas, owns no property in the state of Kansas, and does not advertise in the state of Kansas.

Professional was contacted by the plaintiffs concerning the transportation of some office furniture from the state of Missouri to the state of Colorado. The arrangements relating to the property were made between plaintiff Ludene Brandi and Thomas Paradis, president of Professional. Plaintiff requested that Professional obtain insurance for the full value of the freight, and Professional represented that it maintained such insurance.

As part of Professional's service to plaintiffs, Paradis contacted co-defendant Valley Transportation and Warehouse Co., Inc., in the state of Arizona to transport the freight in question. The freight was damaged during shipment and while in the state of Kansas. Professional had not secured appropriate insurance for the freight and plaintiffs filed the instant lawsuit.

A federal court in a diversity action¹ determines whether personal jurisdiction over nonresident defendants is obtainable under the law of the forum state. Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1416 (10th Cir.1988). In Kansas, the issue of personal jurisdiction is determined from a two-step analysis. First, the court assesses whether the defendant's conduct falls within one of the provisions of the Kansas long-arm statute, K.S.A. § 60-308(b). Second, it is decided whether the exercise of jurisdiction comports with due process requirements. Slawson v. Hair, 716 F.Supp. 1373, 1375 (D.Kan.1989).

The Kansas courts have liberally interpreted the Kansas long-arm statute to assert personal jurisdiction over nonresident defendants to the full extent permitted by the due process clause of the Fourteenth Amendment. Equifax Servs., Inc. v. Hitz, 905 F.2d 1355, 1357 (10th Cir.1990) (citing Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 777, 740 P.2d 1089 (1987)). Therefore, the inquiry into the applicability of the Kansas long-arm statute and due process requirements are essentially the same. For purposes of clarity, however, the court notes that sections (b)(1), (2), and (11) of the long-arm statute could provide for service of process on Professional in the present case. K.S.A. § 60-308(b).

The exercise of personal jurisdiction over a nonresident defendant will satisfy due process if the defendant had certain "minimum contacts" with the forum state such that the prosecution of the suit does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). In order to evaluate whether exercise of personal jurisdiction over Professional in the present case comports with due process, the court will engage in a two-part inquiry to determine (1) whether Professional has minimum contacts with the forum state of Kansas, and (2) whether the exercise of jurisdiction offends traditional notions of fair play and substantial justice.

To have minimum contacts, the defendant must have fair warning of being subject to jurisdiction — that is, the defendant's activities are "purposefully directed at residents of the forum and the litigation arises from or relates to those activities." Burger King v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985). A second aspect of minimum contacts is foreseeability. Courts generally express the foreseeability factor as whether the defendant's conduct and connection with the forum state is such that the defendant should reasonably anticipate being haled into court in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

Under the minimum contacts analysis, a court must look to the "quality and nature" of a defendant's activity to determine whether it is both "reasonable" and "fair" to require the defendant to conduct his or her defense in the forum state. Thermal Insulation Sys. v. Ark-Seal Corp., 508 F.Supp. 434, 442 (D.Kan.1980). In every case there must be some act by which the defendant purposefully avails himself or herself of the privilege of conducting business or other activities in the forum state, thus invoking the benefits and protections of the laws. Burger King, 471 U.S. at 475, 105 S.Ct. at 2183; see Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1...