Bruce v. Fairchild Industries, Inc., CIV-73-14-D.

• Decision Date: 21 March 1975
• Docket Number: No. CIV-73-14-D.,CIV-73-14-D.
• Citation: 413 F. Supp. 914
• Parties: Mike BRUCE et al., Plaintiffs, v. FAIRCHILD INDUSTRIES, INC., a Foreign Corporation, formerly Fairchild Hiller Corp., Defendant.
• Court: U.S. District Court — Western District of Oklahoma

413 F. Supp. 914

Mike BRUCE et al., Plaintiffs, v. FAIRCHILD INDUSTRIES, INC., a Foreign Corporation, formerly Fairchild Hiller Corp., Defendant.

No. CIV-73-14-D.

United States District Court, W. D. Oklahoma.

December 23, 1974.

On Motion To Dismiss March 21, 1975.

John W. Norman and Larry A. Tawwater, Oklahoma City, Okl., for plaintiffs.

B. J. Cooper and A. T. Elder, Jr., Oklahoma City, Okl., for defendant.

ORDER

DAUGHERTY, Chief Judge.

This action arises from the crash of an aircraft on October 2, 1970 near Georgetown, Colorado. The aircraft was transporting members of the Wichita State University football team and some of their supporters to a game when the crash occurred. Numerous separate actions were filed in the State District Court for Oklahoma County, Oklahoma against Defendant Fairchild (the only Defendant herein) and other parties by the Plaintiffs herein. Plaintiffs were either injured in the crash or they bring their actions on behalf of persons killed therein. The various individual actions were dismissed from the State Court as to Defendant Fairchild only and the present action commenced. The case against Defendant herein is a products liability action asserted against Fairchild as a former owner of the aircraft in question.

Defendant filed a Motion to Dismiss in which it asserts that jurisdiction over it in this action is lacking. Defendant also filed several other motions at approximately the same time to include a Motion for Summary Judgment and a Motion to Adopt State Court Proceedings. Defendant's Motions were supported by Briefs. Plaintiffs have responded to the Motions.

In their Response, Plaintiffs state that they agree to the adoption herein of the State Court proceedings. They state that the State Court Judge or Judges handling the cases ruled that Defendant Fairchild was subject to the jurisdiction of the Oklahoma Courts. They urge that the adoption of the State Court Proceedings in this action includes the adoption of the ruling by the Court below as to the jurisdictional issue raised herein by Defendant. Plaintiffs then elected to make no further response to the Defendant's Objection to this Court exercising in personam jurisdiction over Defendant in this case as raised in its Motion to Dismiss filed herein.

The parties and the Court have done much work in this case, most of it relating to the Motion for Summary Judgment. In considering the case the Court has become quite familiar with the facts giving rise to this lawsuit. It appears that Defendant's position that personal jurisdiction is lacking over it as to the causes of action or claims herein may have merit and this Court should entertain and rule on the Motion to Dismiss based on this ground as a threshold matter prior to ruling on other Motions pending herein. When a Motion to Dismiss is urged based on lack of personal jurisdiction, such Motion must be passed on by the Court prior to considering any Motions going to the merits of the case such as a Motion for Summary Judgment. Arrowsmith v. United Press International, 320 F. 2d 219 (Second Cir. 1963).

This Court has not Ordered the State Court Proceedings adopted in this action and the agreement by Plaintiffs to Defendant's request that same be adopted does not make them a part of this action. The assertion that this Court would be bound by the determination in the State Courts that Defendant is subject to jurisdiction herein is incorrect. A Court has a right and a duty to determine its own jurisdictional questions. Jones v. Farmers Ins. Exchange of Los Angeles, Cal., 112 F.Supp. 952 (W.D.Okla.1953). Further, it is noted that Defendant has saved its objections to the jurisdictional ruling in the State Court and has renewed its objection to in personam jurisdiction in this Court.

The issues to be considered in determining if jurisdiction is present is whether Defendant is subjected to the jurisdiction of the Oklahoma Courts pursuant to the duplicitous "long arm" statutes found in 12 Oklahoma Statutes 1971 §§ 187 and 1701.03. The Courts of Oklahoma have held that jurisdiction based on these statutes must be based on activities giving rise to the cause of action or claim asserted. Crescent Corporation v. Martin, 443 P.2d 111 (Okla. 1968); Precision Polymers, Inc. v. Nelson, 512 P.2d 811 (Okla.1973). The record in the instant case does not disclose which "long arm" statute or which provision or provisions thereof Plaintiffs rely upon.

The Court determines that an evidentiary hearing should be conducted in order to resolve the issue of the claimed lack of personal jurisdiction over Defendant. Such procedure when disputed fact issues are involved was recommended in the case of Schramm v. Oakes, 352 F.2d 143 (Tenth Cir. 1965). Such hearing is set for the 15th day of January, 1975 at 10:00 a. m.

Other Motions under consideration by the Court in this action are abated pending the outcome of the Motion to Dismiss.

ON MOTION TO DISMISS

On December 23, 1974 this Court issued its Order setting Defendant's Motion To Dismiss for an evidentiary hearing. Said Motion is based and the hearing was conducted on an assertion that personal jurisdiction over Defendant in this action is lacking. The facts giving rise to this products liability action are set out in said Order which is adopted by reference in its entirety.

Said evidentiary hearing pursuant to Schramm v. Oakes, 352 F.2d 143 (Tenth Cir. 1965) was conducted on January 15, 1975 and continued until January 17, 1975. At said hearing, the Plaintiffs introduced in evidence an affidavit of Jack Richards who was an officer in the corporation which purchased the aircraft involved in this action from Defendant pursuant to a Purchase Agreement dated September 16, 1968, and which was extended by an Extension Agreement dated March 9, 1970. In said affidavit, Richards stated that a party identified as being the director of sales for Defendant came to Oklahoma City, Oklahoma for a period of three or four days while negotiating and finalizing the sale of the aircraft in question. He further stated that he delivered the down payment to Defendant's agent in Oklahoma City and further that affiant signed said Purchase Agreement in Oklahoma City, Oklahoma. Plaintiffs also introduced copies of various documents concerning correspondence and other dealings between the purchaser and Defendant relating to said Purchase Agreement, payments made thereunder and delivery of the titles to the aircraft purchased after payment was received. Plaintiffs also note that the Purchase Agreement allowed the purchaser to move the aircraft from Nevada to Oklahoma for storage. The facts as developed in the case indicate however, that this was not accomplished as to the aircraft involved in the crash.

Plaintiffs assert that they rely on the provisions of 12 Oklahoma Statutes 1971 § 1701.3 to establish jurisdiction over Defendant in this case. They claim that sub-paragraphs (a)(2) separately and (a)(1) and (7) combined establish such jurisdiction. The relevant portions of said Statute provide:

"(a) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action or claim for relief arising from the person's:

(1) transacting any business in this state;

(2) contracting to supply services or things in this state;

* * * * * *

(7) maintaining any other relation to this state or to persons or property including support for minor children who are residents of this state which affords a basis for the exercise of personal jurisdiction by this state consistently with the Constitution of the United States."

Plaintiffs contend they have established facts to show that Defendant has had contact with the State of Oklahoma sufficient to bring it within the jurisdiction of the Oklahoma Courts pursuant to subsections (a)(1) and (a)(7). They urge that such contacts satisfy the due process requirements of "minimum contacts" as established in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); and McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Plaintiffs cite Hines v. Clendenning, 465 P.2d 460 (Okla.1970) wherein the Court stated:

". . . it was the intention of our legislature to extend the jurisdiction of the Oklahoma courts over nonresidents to the outer limits permitted by the due process requirements of the United States Constitution."

Plaintiffs also call to the Court's attention the case of Yankee Metal Products Company v. District Court, 528 P.2d 311 (Okla. 1974).

The Plaintiffs urge as a second proposition that the Defendant has contracted to supply services and things within the State of Oklahoma subjecting itself to jurisdiction under the Oklahoma "Long Arm" Statute.

Defendant contends it did not contract to supply services or things in the State of Oklahoma. It relies on the Purchase Agreement of September 16, 1968 and the Extension Agreement of March 9, 1970. The Defendant further contends that it does not maintain any other relation to the State of Oklahoma or to persons or property which affords a basis for the exercise of personal jurisdiction by this state consistent with the Constitution of the United States. It cites Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) as interpreted in Architectural Bldg. Components Corp. v. Comfort, 528 P.2d 307 (Okla.1974). The last proposition set out by Defendant is that the claims of Plaintiffs do not present a cause of action or claim for relief arising from any of the sub-sections of Title 12 Oklahoma Statutes 1971 § 1701.03.

In this Court's Order of December 23, 1974, it was noted that the Courts of Oklahoma have held that jurisdiction based on these statutes must be based on activities giving rise to the cause of action or claim asserted. Only Defendant has met this threshold point in its brief. This matter will be considered first by the Court for the reason that the...