EASTERN MARKETING v. TEXAS MERIDIAN PRODUCTION, Civ. A. No. 2:92-0672.

• Decision Date: 09 September 1992
• Docket Number: Civ. A. No. 2:92-0672.
• Citation: 798 F. Supp. 363
• Court: U.S. District Court — Southern District of West Virginia
• Parties: EASTERN MARKETING CORPORATION, Plaintiff, v. TEXAS MERIDIAN PRODUCTION COMPANY, LTD. and TMR Acquisition, Ltd., Defendants.

798 F. Supp. 363

EASTERN MARKETING CORPORATION, Plaintiff, v. TEXAS MERIDIAN PRODUCTION COMPANY, LTD. and TMR Acquisition, Ltd., Defendants.

Civ. A. No. 2:92-0672.

United States District Court, S.D. West Virginia, Charleston Division.

September 9, 1992.

Richard D. Owen, Goodwin & Goodwin, Charles W. Goodwin, Charleston, W.Va., for plaintiff.

David B. Thomas, Spilman, Thomas, Battle & Klostermeyer, Charleston, W.Va., for defendants.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending are the Defendants' motions to dismiss for lack of personal jurisdiction and improper venue, pursuant to Rule 12(b)(2) and (b)(3) of the Federal Rules of Civil Procedure or, alternatively, to transfer venue to the United States District Court for the Southern District of Texas, Houston Division. Response and reply briefs have been submitted and now this matter is ripe for the Court's attention.

Initially the Court notes that all conflicts of fact must be resolved in favor of the Plaintiff for purposes of determining whether a prima facie showing of personal jurisdiction has been made. Capstar Corp. v. Pristine Industries, Inc., 768 F.Supp. 518, 522 (W.D.N.C.1991) (citations omitted). Under the traditional analysis concerning questions of in personam jurisdiction, the Court must first determine whether the West Virginia long arm statute confers personal jurisdiction and second, whether the exercise of that statutory power will violate the due process clause of the United States Constitution. After careful consideration, the Court concludes that the West Virginia long arm statute does confer personal jurisdiction in this Court and that the exercise of personal jurisdiction in the case at bar does not violate the due process clause of the United States Constitution.

The Defendants in this case were not authorized to transact business in West Virginia. West Virginia's long arm statute specifically addresses this situation:

"... a foreign corporation not authorized to conduct affairs or do or transact business in this state pursuant to the provisions of this article shall nevertheless be deemed to be conducting affairs or doing or transaction business herein (a) if such corporation makes a contract to be performed, in whole or in part, by any party thereto, in this state ..."

W.Va.Code, § 31-1-15 (1988). In the present case at least a portion of the parties' contract was performed in West Virginia, since the Defendants were contractually obligated to deliver natural gas to the Plaintiff's West Virginia location. Therefore, West Virginia's long arm statute should apply and personal jurisdiction attaches.

Whether the exercise of this statutory power violates the due process clause of the United States Constitution involves consideration of the following minimum contact factors with the forum state: (1) the quantity of the contacts, (2) the nature and quality of contacts, (3) the source and connection of the cause of action with those contacts, (4) the interests of the forum state in convenience, and (5) whether the defendant invoked benefits and protection of the law of the forum state. Capstar Corp. v. Pristine Industries, Inc., 768 F.Supp. at 523 (W.D.N.C.1991) (citations omitted). These factors must be analyzed on a case-by-case basis, determining what is fair, reasonable and just according to the circumstances, and in some instances may be sufficient to satisfy the requisite minimum contacts if it gives rise to the liability asserted in the suit. Id.; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 482, 105 S.Ct. 2174, 2187, 85 L.Ed.2d 528 (1985).

In this case the out of state Defendants entered into a gas purchase contract with a West Virginia Plaintiff. The contract provided for the purchase of natural gas by the Plaintiffs from the Defendants. Such acts manifest a willingness to conduct business within West Virginia. Capstar Corp., supra, at 524. Furthermore, while choice of law considerations are not conclusive as to jurisdiction, see Shaffer v. Heitner, 433 U.S. 186, 215, 97 S.Ct. 2569, 2585, 53 L.Ed.2d 683 (1977), they should nevertheless carry some weight. Pittsburgh Terminal Corp. v. Mid Allegheny Corp., 831 F.2d 522, 528 (4th Cir.1987). Certainly an assertion of jurisdiction such as this one should not come as any surprise. By entering a gas purchase contract with the Plaintiff and agreeing to a West Virginia choice of law provision, the Defendants purposely availed themselves of both the benefits and detriments of West Virginia law.

Likewise, in early 1990 representatives of the Defendants came to Eastern's headquarters in Charleston, West Virginia, for the purpose of discussing business from Eastern. Following this meeting the parties exchanged letters and telephone calls, ultimately concluding in the gas purchase contract. Contrary to Defendants' argument, it is not necessary that the Defendants ever actually enter the forum state's territory. So long as the Defendants purposefully directed their activities toward the forum states and the litigation arises from those activities, then due process is satisfied. Pittsburgh Terminal Corp., supra, at 525 (citations omitted); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), (defendants had demonstrably fewer ties with the forum state than the Defendants in the case at bar, yet jurisdiction was held proper).

Furthermore, by their own admissions, Defendants made numerous phone calls and sent fax transmissions into West Virginia relating to the subject gas purchase contract. Accord: Capstar, supra, at 768 F.Supp. at 524. (Where a foreign corporation entered into a contract with a North...