Cantrell v. Extradition Corp. of America, 88-4357-CV-C-9.

• Decision Date: 12 March 1992
• Docket Number: No. 88-4357-CV-C-9.,88-4357-CV-C-9.
• Citation: 789 F. Supp. 306
• Parties: Marilyn CANTRELL, Plaintiff, v. EXTRADITION CORPORATION OF AMERICA, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

789 F. Supp. 306

Marilyn CANTRELL, Plaintiff, v. EXTRADITION CORPORATION OF AMERICA, et al., Defendants.

No. 88-4357-CV-C-9.

United States District Court, W.D. Missouri, C.D.

March 12, 1992.

John S. Pletz, Venters, Pletz & Reed, P.C., Jefferson City, Mo., Carol Watson, Los Angeles, Cal., for plaintiff.

Mark A. Ludwig, Carson & Coil, P.C., Jefferson City, Mo., Michael Mossman, Nashville, Tenn., Donald C. Otto, Jr., Douglas L. Van Camp, Hendren & Andrae, Dale C. Doerhoff, Cook, Vetter & Doerhoff, Jefferson City, Mo., for defendants.

ORDER DENYING DEFENDANT GEORGE'S MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION OR TO DISMISS

BARTLETT, District Judge.

On October 18, 1990, plaintiff filed a Second Amended Complaint adding Sherman George and Planned Facilities Corporation as defendants. Plaintiff asserts that defendant Extradition Corporation of America:

was the alter ego of defendant SHERMAN GEORGE and PLANNED FACILITIES CORPORATION.... In approximately 1985, defendant SHERMAN GEORGE founded ECA and was its sole owner and stockholder until he sold it in 1987. The acts of ECA are legally attributable to defendant GEORGE and piercing the corporate veil is warranted because at all times during defendant George's ownership, he operated ECA with inadequate capital and insufficient insurance for its risks and liabilities; the separate corporate personalities were not observed in that defendant GEORGE and his wife were the only officers of ECA; and defendant GEORGE was actively involved in ECA's operation as its chief executive officer and in the day-to-day activities of transporting prisoners, calling on accounts, supervising employees and overseeing the operation of ECA, including its finances which were intermingled with the personal finances of defendant GEORGE.

Second Amended Complaint at ¶¶ 2, 3.

On March 5, 1991, George moved that plaintiff's Second Amended Complaint be dismissed against him for lack of personal jurisdiction. George stated:

1. This defendant is a Tennessee resident.

2. This defendant has not and does not conduct any business in the State of Missouri.

3. There are no allegations whatsoever in the Complaint conferring jurisdiction over the person of this defendant; there is no allegation he transacted business in the state, made any contract within the state, committed a tortious act within the state, owns, uses or possesses any real estate situated in the state, or any other allegations sufficient to confer jurisdiction upon him.

George submitted an affidavit in support of his Motion to Dismiss in which he states:

1. I am a resident of the State of Tennessee.

2. I have never been a resident nor have I ever personally conducted any business in the State of Missouri.¹

3. Extradition Corporation of America was incorporated in the year 1985, and I was the sole shareholder of said corporation until 1987 when I conveyed 100 percent of the outstanding shares of said corporation to Planned Facilities Corporation.

4. Extradition Corporation of America conducted business as a separate corporate entity.

5. I own no real or personal property that is located in the State of Missouri and never have.

ECA has not asserted that this court lacks personal jurisdiction over it. ECA admits that "it was a corporation incorporated in Tennessee and doing business with Missouri and California to transport prisoners in extradition cases...." ECA's Answer at ¶ 2. ECA also "admits that all times it was acting under color of law and as the employee, agent, representative, and officer of the States of Missouri and California and Camden County, Missouri." Id. at ¶ 6. ECA also admits that it was hired to transport plaintiff on August 17, 1986, and that plaintiff was dropped off at the Camden County Jail in Camden, Missouri, on August 21, 1986. Id. at 7. There is no dispute that personal jurisdiction exists over ECA.

George argues that plaintiff has not met Missouri's two-pronged test for piercing the corporate veil:² "A mere allegation that defendant Sherman George is the alter ego of defendant Extradition Corporation of America, without allegations of fraud, injustice or an unlawful purpose, does not permit the court discretion to exercise personal jurisdiction over defendant Sherman George." Defendant's Reply at 3.

1. Burden of Establishing Personal Jurisdiction

A district court judge has broad discretion in deciding the manner in which to resolve personal jurisdiction issues. The court may rely on pleadings and affidavits alone or require that an evidentiary hearing be held:

Whatever procedural path the district court chooses to follow determines the plaintiff's burden of proof and the standard to be applied on appeal. If the court chooses to rely on pleadings and affidavits, the plaintiff need only make a prima facie showing of personal jurisdiction over defendant. But if the court holds an evidentiary hearing — in a manner similar to determining the issue at trial — the plaintiff must demonstrate personal jurisdiction by preponderance of the evidence.

CutCo Industries, Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir.1986); accord Watlow Electric Mfg. Co. v. Patch Rubber Co., 838 F.2d 999, 1000 (8th Cir.1988).

On a motion to dismiss for lack of personal jurisdiction, the plaintiff rather than the movant has the burden of proof. Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir.1982). The allegations in the Complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party. Wyatt, 686 F.2d at 280; Behagen v. Amateur Basketball Ass'n of U.S.A., 744 F.2d 731, 733 (10th Cir.1984).

On August 9, 1991, I granted plaintiff leave to conduct further discovery on the issue of whether personal jurisdiction could be exercised over George because the corporate veil of ECA should be pierced.

On October 10, 1991, I ordered George to answer plaintiff's third set of interrogatories by November 3, 1991. No Certificate of Service has been filed by George showing that he has answered the interrogatories.

Accordingly, I will rule on this motion to dismiss on the basis of the pleadings and affidavits received.

2. Personal Jurisdiction — Fiduciary Shield Doctrine

This court may not exercise personal jurisdiction over a defendant unless two elements are satisfied. First, Missouri's long-arm statute must authorize personal jurisdiction under the facts of the case. Second, the exercise of personal jurisdiction must be consistent with due process. CPC-Rexcell, Inc. v. La Corona Foods, Inc., 912 F.2d 241, 243 (8th Cir.1990).

Missouri's long-arm statute³ has been interpreted by the Missouri Supreme Court as permitting jurisdiction, within the specific categories enumerated in the statute, to the full extent permitted by the due process clause of the Fourteenth Amendment. State ex rel. Metal Service Center of Georgia, Inc. v. Gaertner, 677 S.W.2d 325, 327 (Mo. banc 1984). Thus, the focus of inquiry is whether personal jurisdiction over George as an individual comports with due process.

George argues that the Complaint alleges no specific contacts with Missouri by him as an individual, that the contacts of ECA are not attributable to him as an individual, and that this court cannot exercise personal jurisdiction over him as an individual.

Under the fiduciary shield doctrine, a person's mere association with a corporation that causes injury in the forum state is not sufficient in itself to permit that forum to assert jurisdiction over the person. Davis v. Metro Productions, Inc., 885 F.2d 515, 520 (9th Cir.1989). The fiduciary shield doctrine is not a constitutional principle, but is rather a doctrine based on judicial inference as to the intended scope of the long-arm statute. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 902 n. 3 (2d Cir.1981). Consequently, the Supreme Court has suggested that where an employee has contacts with the forum state in the course of his employment, the fiduciary shield doctrine does not prevent a finding of minimum contacts:

Petitioners are correct that their contacts with California are not to be judged according to their employer's activities there. On the other hand, their status as employees does not somehow insulate them from jurisdiction. Each defendant's contacts with the forum State must be assessed individually.

Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 1487, 79 L.Ed.2d 804 (1984); see Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n. 13, 104 S.Ct. 1473, 1482 n. 13, 79 L.Ed.2d 790 (1984) ("In Calder v. Jones, we today reject the suggestion that employees who act in their official capacity are somehow shielded from suit in their individual capacity").

In both Calder and Hustler Magazine, the Supreme Court applied the constitutional due process analysis to the contacts of the individuals concerned. The Supreme Court rejected the concept that a state-created corporate form created a due process limitation on jurisdiction over corporate employees.

Although the fiduciary shield doctrine does not affect a minimum contacts analysis, a state may limit its long-arm jurisdiction by a more aggressive use of the doctrine. Missouri courts have not addressed the issue presented in this case: whether the Missouri long-arm statute authorizes personal jurisdiction over a nonresident defendant whose only contacts with Missouri are in an employment capacity. In the absence of direct guidance from Missouri on this issue, I rely on the Missouri courts' interpretation of its long-arm statute as permitting jurisdiction essentially as broad as is authorized by the United States Constitution.⁴

Therefore, the correct jurisdictional inquiry is into the contacts that George had with Missouri relative to this dispute. George's...