Etienne v. Wolverine Tube, Inc.

• Decision Date: 02 June 1998
• Docket Number: No. 98-2010-JWL.,98-2010-JWL.
• Citation: 12 F.Supp.2d 1173
• Parties: Robert M. ETIENNE, Plaintiff, v. WOLVERINE TUBE, INC., Defendant.
• Court: U.S. District Court — District of Kansas

12 F.Supp.2d 1173

Robert M. ETIENNE, Plaintiff, v. WOLVERINE TUBE, INC., Defendant.

No. 98-2010-JWL.

United States District Court, D. Kansas.

June 2, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gregory M. Dennis, Richard W. Noble, The Noble Group, P.C., Brendan J. Donelon, Kansas City, MO, for plaintiff.

Henry R. Cox, The Campbell Law Firm, Kansas City, MO, M. Todd King, Douglas M Towns, Jones, Day, Reavis & Pogue, Atlanta, GA, for defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

By this diversity action, plaintiff seeks damages for breach of an employment contract. The matter is presently before the court on defendant's motion to dismiss for lack of personal jurisdiction, lack of venue, and failure to state a claim, or alternatively for transfer of venue (Doc. 7). For the reasons set forth below, the court denies the motion in its entirety.

I. Background¹

Plaintiff is a Kansas resident. Defendant is a Delaware corporation with its principal place of business in Alabama. In July 1997, plaintiff contacted defendant about a position available as defendant's Vice President of Human Resources. In July and August, plaintiff made three trips to Alabama at defendant's request to discuss possible employment with defendant. Plaintiff also traveled to North Carolina at defendant's request for a leadership evaluation by Doug Anderson, who was acting as defendant's agent.

On August 26, 1997, John Quarles, defendant's CEO, telephoned plaintiff at his Kansas home and extended an oral offer of employment. Plaintiff requested that the offer be reduced to writing. On August 27, defendant faxed to plaintiff in Kansas a letter setting forth the terms of the offer. The next day, plaintiff received by overnight mail in Kansas an original of that letter, signed by Mr. Quarles, as well as a severance agreement and other documents. The letter began as follows:

I am pleased to extend to you an offer for the position of Vice President of Human Resources for Wolverine Tube, Inc. We have completed thorough reference checks and are pleased that this feedback confirmed our view that you are our candidate of choice.

The job location is in Huntsville and will report to the CEO. We would like to have you here as soon as practical. A medical and psychological examination is required prior to employment.

At the end of the letter, after the signature of Mr. Quarles, was a place for plaintiff's signature under the following language: "Please indicate your acceptance of this offer by signing in the space provided."

On August 29, 1997, plaintiff in Kansas spoke with defendant's agent, Mr. Anderson, by phone. Plaintiff asked whether defendant would pay for a health club membership instead of a country club membership, as offered in the letter. Plaintiff also requested a cellular phone at defendant's expense and inquired about moving expenses. After speaking with James Deason, defendant's chief financial officer, Mr. Anderson contacted plaintiff and stated that those requests would not be a problem. On August 31, 1997, plaintiff signed the letter and sent it to defendant by mail.

On September 2, 1997, at defendant's request, plaintiff traveled to North Carolina to take tests administered by psychologist David Hanson. On September 5, 1997, Mr. Quarles telephoned plaintiff in Kansas and, according to plaintiff's complaint, "informed plaintiff that Wolverine was terminating its contract with plaintiff" because of Dr. Hanson's evaluation. On January 9, 1998, plaintiff brought the instant action for breach of contract.

II. Personal Jurisdiction

Defendant first argues that plaintiff's action must be dismissed for lack of personal jurisdiction. The party bringing the action bears the burden of establishing personal jurisdiction over the defendant. Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir.1996). When the motion is decided on the basis of affidavits and other written materials, however, the plaintiff need only make a prima facie showing, and all factual disputes are resolved in that party's favor. Id.

In a diversity suit such as this one, the court determines its jurisdiction over a nonresident defendant by the law of the forum state. Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1304 (10th Cir.1994). The court engages in a two-part inquiry, determining "whether the exercise of jurisdiction is sanctioned by the long-arm statute of the forum state and comports with due process requirements of the Constitution." Id. at 1304-05.

A. Long-Arm Statute

Under the Kansas long-arm statute, a party submits to the jurisdiction of courts in this state "as to any cause of action arising from the doing" of certain enumerated acts, including the "[t]ransaction of any business within this state." K.S.A. § 60-308(b)(1).² Defendant argues that its contacts with Kansas, consisting only of communications with plaintiff by telephone, telefacsimile, and mail, do not constitute the "transaction of any business" within Kansas for purposes of long-arm jurisdiction.³

It is true that "the Kansas long-arm statute is construed liberally to allow jurisdiction to the full extent permitted by due process." Federated Rural, 17 F.3d at 1305 (citing Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 740 P.2d 1089 (1987)). "This rule of liberal construction, however, does not mean that the court may ignore the long-arm statute's enumerated provisions." Electronic Realty Assocs., L.P. v. Paramount Pictures Corp., 935 F.Supp. 1172, 1175 (D.Kan.1996); see also Volt Delta Resources, 241 Kan. at 777-78, 740 P.2d 1089 (engaging in two-step inquiry involving satisfaction of section 60-308(b)(1) and due process); Three Ten Enters., Inc. v. State Farm Fire & Casualty Co., 24 Kan.App.2d 85, 90-91, 942 P.2d 62 (1997) (court may not ignore statute under guise of liberal construction), review denied (July 12, 1997).

The Kansas Supreme Court has set forth the following standard for long-arm jurisdiction under section 60-308(b)(1):

"Business" is transacted within the state when an individual is within or enters this state in person or by agent and, through dealing with another within the state, effectuates or attempts to effectuate a purpose to improve his economic conditions and satisfy his desires. The transaction of business exists when the nonresident purposefully does some act or consummates some transaction in the forum state.

Volt Delta Resources, 241 Kan. at 778, 740 P.2d 1089 (citation omitted). A nonresident need not physically enter the state to transact business here for purposes of the long-arm statute. Buford v. First Sunset Dev., Inc., 1995 WL 396608, at *3 (D.Kan. June 9, 1995); Thermal Insulation Sys. v. Ark-Seal Corp., 508 F.Supp. 434, 437-42 (D.Kan.1980); Schlatter v. Mo-Comm Futures, Ltd., 233 Kan. 324, 337, 662 P.2d 553 (1983); Environmental Ventures, Inc. v. Alda Services Corp., 19 Kan.App.2d 292, 296, 868 P.2d 540 (1994).

The court concludes that defendant is subject to the jurisdiction of this court under a liberal construction of section 60-308(b)(1). Defendant argues that it did not physically enter the state and that plaintiff made the initial contact with defendant. Nevertheless, defendant purposefully directed communications into Kansas in order to consummate a transaction, specifically the execution of an employment contract with plaintiff. The court does not agree with defendant's present assertion that its contacts with plaintiff in Kansas "were not part of an effort to improve [its] economic condition"; presumably, defendant did not offer plaintiff a job for altruistic reasons, but rather because such action served its own interests.⁴

The court thus concludes that defendant's negotiation of an employment contract with plaintiff by means of communications into Kansas constitutes the transaction of business within Kansas for purposes of long-arm jurisdiction. See Wright v. Frank E. Basil, Inc., 1985 WL 12777, at *1-2 (D.Kan. Oct. 30, 1985) (defendant transacted business under section 60-308(b)(1) where it sent an offer of employment to plaintiff in Kansas and plaintiff accepted the offer here, even though plaintiff first solicited defendant); see also Runnels v. TMSI Contractors, Inc., 764 F.2d 417, 421-23 (5th Cir.1985) (defendant was subject to long-arm jurisdiction under "transaction of business" prong where it directed communications into the forum state concerning employment outside the state); Boudreau v. Scitex Corp., 1992 WL 159667, at *2 (D.Mass. June 25, 1992) (same); Garrett v. Ruth Originals Corp., 456 F.Supp. 376, 380 (S.D.Ohio 1978) (same); Aetna Casualty & Surety Co. v. Crowther, Inc., 221 Ill.App.3d 275, 163 Ill.Dec. 679, 581 N.E.2d 833, 836 (1991) (same).

B. Due Process

The court further concludes that the exercise of long-arm jurisdiction here would not violate due process. The touchstone of this constitutional inquiry is whether the nonresident party purposefully established "minimum contacts" with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Federated Rural, 17 F.3d at 1305. This standard may be met in two ways:

First, a court may exercise specific jurisdiction if a defendant has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities. Second, a court may exercise general jurisdiction where the defendant's contacts, while not rising to the level of the traditional notion of presence in the forum state, are nonetheless "continuous and systematic". Where general jurisdiction lies the state may exercise personal jurisdiction over the defendant, even if the suit is unrelated to the defendant's contacts with the state.

Kuenzle, 102 F.3d at 455-56 (citations and footnote omitted). Plaintiff does not contend that defendant's contacts with Kansas have been "continuous and systematic". Th...