Electronic Manufacturing Corporation v. Trion, Inc.
| Decision Date | 10 May 1962 |
| Docket Number | No. IP 62-C-20.,IP 62-C-20. |
| Parties | ELECTRONIC MANUFACTURING CORPORATION v. TRION, INC. |
| Court | U.S. District Court — Southern District of Indiana |
Kunz & Kunz, Indianapolis, Ind., for plaintiff.
White, Raub & Forrey, Indianapolis, Ind., for defendant.
This is an action on account and for breach of certain written contracts. The plaintiff is an Indiana corporation and the defendant a Pennsylvania corporation, not admitted to do business in Indiana.
The record shows that the summons issued against the defendant was served on the Secretary of State of the State of Indiana pursuant to Burns' Indiana Statutes § 25-316 and Rule 4(d)(7), F.R. Civ.P., 28 U.S.C.A. Section 25-316 provides as follows:
"The engaging in any transaction or the doing of any business in this state by any foreign corporation not licensed nor admitted to do business in this state under any existing act or any act hereafter enacted shall be deemed equivalent to an appointment by such foreign corporation of the secretary of state, or his successor in office, to be the true and lawful attorney and agent of such foreign corporation upon whom may be served all lawful processes, writs, notices, or orders in any action or proceeding against such foreign corporation arising or growing out of, directly or indirectly, any act or thing done by such corporation within the state of Indiana. * * *"
Application of the above statute to a non-admitted foreign corporation engaged in selling goods in interstate commerce to purchasers within the State of Indiana is the subject of a recent opinion of this Court, in which Judge Steckler makes an exhaustive review of the authorities. Green v. Robertshow-Fulton Controls Co. (S.D.Ind.1962), 204 F. Supp. 117. That cause of action, in which the defendant's motion to dismiss or to quash the return of service of process was overruled, was an action in tort for personal injuries sustained allegedly as a result of an explosion of a defective water heater manufactured by the defendant and sold to an independent distributor in Indiana, which heater was eventually re-sold to plaintiff.
The present case, however, seeks to make amenable to the jurisdiction of this Court a foreign corporation which is the purchaser of goods in Indiana, rather than one which has engaged in selling and shipping goods into such state.
It is shown by the interrogatories answered by the defendant, and by the affidavit of one William M. Shank, filed by the plaintiff herein, that the defendant has engaged for a number of years in sales and promotional activities in the State of Indiana. Such facts are immaterial, because the present suit is not alleged to have arisen from any of such selling activities. By the express language of the statute, it is only those actions or proceedings "arising or growing out of, directly or indirectly, any act or thing done by such corporation within the state of Indiana" which give rise to the constructive consent to be sued in Indiana with process to be served upon the Secretary of State.
However, it is not necessary for a foreign corporation to be "doing business", in the broad sense of that term, before it would be subject to service of process in Indiana in the manner provided by § 25-316. According to the plain language of the statute, the engaging in any single transaction in this State makes the foreign corporation liable to suit in this State in any action or proceeding arising or growing out of such transaction, whether directly or indirectly. Thus if the contracts here sued upon are Indiana contracts, service upon the defendant pursuant to § 35-316 would be proper, and this Court would have jurisdiction of the person of the defendant provided that the defendant's rights under the fourteenth amendment would not be violated thereby.
The facts regarding the transaction or transactions leading to the suit, as appear from the affidavit of James C. Marsh, and which facts have not been contradicted by the defendant, may be summarized as follows:
The defendant purchased from the plaintiff, and its predecessor, a total of 8,740 power supplies of three different types over a period of five years from May, 1956, until December, 1960. Such purchases were made by purchase orders forwarded to and accepted by plaintiff at its office in the State of Indiana, where payments for such purchases were made. The total sum involved in the various purchases was $196,314.00. The items shipped to the defendant were shipped F.O.B., Indianapolis, Indiana. The power supplies were not furnished out of stock, but on the contrary were...
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