Etienne v. Wolverine Tube, Inc.

• Decision Date: 10 July 1998
• Docket Number: No. 98-2010-JWL.,98-2010-JWL.
• Citation: 15 F.Supp.2d 1060
• Parties: Robert M. ETIENNE, Plaintiff, v. WOLVERINE TUBE, INC., Defendant.
• Court: U.S. District Court — District of Kansas

Page 1060

15 F.Supp.2d 1060

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

No. 98-2010-JWL.

United States District Court, D. Kansas.

July 10, 1998.

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

M. Todd King, Douglas M. Towns, Jones, Day, Reavis & Pogue, Atlanta, GA, Henry R. Cox, Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

By this diversity action, plaintiff seeks damages for breach of an employment contract. On June 2, 1998, the court, by written memorandum and order, denied in its entirety defendant's motion to dismiss the action for lack of personal jurisdiction, lack of venue, and failure to state a claim, or alternatively for transfer of venue. This matter is presently before the court on defendant's motion for reconsideration of the court's order as it relates to the issue of personal jurisdiction or, in the alternative, for certification for interlocutory appeal of that issue (Doc. 20). Defendant has also moved for a stay pending reconsideration or appeal (Doc. 18). For the reasons set forth below, the court denies both motions.

Whether to grant or deny a motion for reconsideration is committed to the court's discretion. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988). In exercising that discretion, courts in general have recognized three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. See Marx v. Schnuck Markets, Inc., 869 F.Supp. 895, 897 (D.Kan.1994) (citations omitted); D. Kan. Rule 7.3 (listing three bases for reconsideration of order); see also Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990) (motion to reconsider appropriate when the court has obviously misapprehended a party's position, the facts, or the applicable law, or when a party introduces new evidence that could not have been obtained through the exercise of due diligence).

Defendant argues that the court's decision on jurisdiction constitutes clear error. Specifically, defendant argues that jurisdiction does not lie under the Kansas long-arm statute and due process where, as here, (1) the defendant did not physically enter the state, (2) the contract was not to be performed in Kansas, (3) the defendant's contacts with the plaintiff in Kansas were limited, and (4) the contacts arose from the plaintiff's initial solicitation of the defendant. In arguing that the court committed clear error in effecting a contrary result in this case, defendant cites three cases from this district in which jurisdiction was found wanting in such circumstances. See Finance & Mktg. Ass'n Int'l, Inc. v. He-Ro Group, Inc., 975 F.Supp. 1429 (D.Kan.1997); Thompson v. Chambers, 804 F.Supp. 188 (D.Kan.1992); Green Country Crude, Inc. v. Avant Petroleum, Inc., 648 F.Supp. 1443 (D.Kan.1986).

The court does not agree that it committed clear error here. Defendant has not presented any new arguments in its present motion, but instead has simply re-hashed the arguments raised previously, which the court fully addressed in denying the motion to dismiss. The court thus reaffirms its prior reasoning. As explained more fully in the prior order, defendant purposefully directed its activities into Kansas to further its own interests. Contrary to the picture it has attempted to paint, defendant was not dragged kicking and screaming into the state. Thus, its contacts with Kansas were not merely random or fortuitous, and jurisdiction is proper in this forum under the applicable law.

Nor is the court persuaded by the three cases cited by defendant. First, those cases do not establish the black-letter rule urged by plaintiff, namely that a Kansas court has no jurisdiction where the four facts listed above are present. Rather, jurisdiction "must be decided on the particular facts of each case." Kuenzle v. HTM Sport-Und Freizeitgerate, 102 F.3d 453, 456 (10th Cir. 1996). As explained in the prior order, the particular facts here establish that defendant purposefully directed its activities at the forum.

In addition, the three cases cited by defendant are not "very similar" to this one because they did not involve the negotiation and execution of an employment contract by means of communications into Kansas. The only such cases decided under the Kansas long-arm statute actually support a finding of jurisdiction here. The court cited Judge Kelly's 1985 decision in Wright v. Frank E. Basil, Inc., 1985 WL 12777 (D.Kan. Oct.30, 1985), which is directly on point, in its prior order. Defendant suggests that Judge Kelly must have changed his position by virtue of his later opinion in Green Country Crude, a 1986 case. That case, however, did not involve an employment contract, and so does not undermine Judge Kelly's reasoning in Wright. Moreover, after his opinion in Green Country Crude, Judge Kelly reaffirmed and followed Wright in Berrigan v. Southeast Health Plan, Inc., 676 F.Supp. 1062 (D.Kan.1987), which also involved an employment contract.

Therefore,...