Hantover, Inc. v. OMET, SNC OF VOLENTIERI & C.

• Decision Date: 09 June 1988
• Docket Number: No. 87-1140-CV-W-JWO.,87-1140-CV-W-JWO.
• Citation: 688 F. Supp. 1377
• Court: U.S. District Court — Western District of Missouri
• Parties: HANTOVER, INC., a Missouri corporation, Plaintiff, v. OMET, S.N.C. OF VOLENTIERI & C., an Italian partnership consisting of the following individuals: Sergio Volentieri, Bruno Valiani, Fiorenzo Bardotti, and Manuela Volentieri, Defendants.

688 F. Supp. 1377

HANTOVER, INC., a Missouri corporation, Plaintiff, v. OMET, S.N.C. OF VOLENTIERI & C., an Italian partnership consisting of the following individuals: Sergio Volentieri, Bruno Valiani, Fiorenzo Bardotti, and Manuela Volentieri, Defendants.

No. 87-1140-CV-W-JWO.

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

June 9, 1988.

COPYRIGHT MATERIAL OMITTED

James F. Davis, Borwn, Koralchick & Fingersh, Overland Park, Kan., for plaintiff.

Joe Rebein, Shook, Hardy & Bacon, Kansas City, Mo., for defendants.

H. Fred Northcraft, Smith, Gill, Fisher & Butts, Kansas City, Mo., for Lawrence Star.

MEMORANDUM AND ORDERS

JOHN W. OLIVER, Senior District Judge.

I.

The above-styled case is an action brought by a Missouri corporation against an Italian partnership, Omet, and its individual partners for breach of contract in relation to plaintiff's proposed distribution in the United States of a vacuum stuffer machine manufactured by the Italian partnership. The case pends on numerous motions filed by both parties; we deferred ruling the motions pertaining to discovery until decision could be reached on the threshold jurisdictional issues presented by Omet's motion to dismiss. That motion has now been fully briefed, and we turn our attention to consideration of the five grounds for dismissal raised by Omet therein. For the reasons stated, Omet's motion to dismiss will be denied, but its motion to quash will be granted.

II. MOTION TO DISMISS

A. Failure to sue proper parties

Omet initially argues that plaintiff's petition should be dismissed because plaintiff has not brought suit against the proper parties. Plaintiff initiated this action in the Circuit Court of Jackson County, Missouri, naming as defendant "O.M.E.T. Company of Volentieri, I.C., an Italian corporation." After removing the action to federal court,¹ the defendant moved to dismiss on the ground that Omet is a partnership rather than a corporation.

On February 25, 1988, plaintiff filed its first amended petition, in which it names the partnership and the individual partners of Omet as defendants in this case.² Although this filing mooted the first ground raised by Omet in its motion to dismiss, Omet maintains that the amended petition should not have been filed without leave of court, and that plaintiff's failure to sue the proper party in its original petition is fatal to its cause of action. We disagree.

Federal Rule of Civil Procedure 15(a) provides that "a party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served...." Rule 7(a) clearly distinguishes between pleadings, such as complaints and answers, and motions, such as the motion to dismiss filed in the present case. Because Omet's motion to dismiss is not a responsive pleading under the federal rules, its filing did not vitiate plaintiff's right to file an amended complaint without leave of court under Rule 15(a). See 6 C. Wright and A. Miller, Federal Practice and Procedure § 1483 (1971). Further, Omet has cited no authority for the proposition that a failure to sue the proper party, which has subsequently been remedied by an amended complaint naming proper parties, constitutes grounds for the dismissal of the action. We accordingly conclude that the case may not be dismissed on this ground.

B. Improper mode of service

Omet next argues that the case must be dismissed pursuant to Rule 12(b)(5) because of insufficient service of process. After filing its initial petition in Missouri state court, plaintiff attempted to serve Omet pursuant to Mo.R.Civ.P. 54.09, which provides for service on foreign corporations through the Missouri Secretary of State. After the case was removed and Omet filed its motion to dismiss, plaintiff effectively conceded that its first petition had been improperly served by filing a motion for court-ordered foreign service, requesting that this Court order service on the partners of Omet under Rule 4(i)(1)(E) of the federal rules. We shall address that pending motion in part III of this memorandum opinion and for the reasons stated in that section, Omet's motion to dismiss shall be denied but its motion to quash shall be granted.

C. Personal jurisdiction

Omet next argues that it lacks the requisite minimum contacts with Missouri to subject it to this Court's jurisdiction under either the Missouri long-arm statute or the due process clause of the United States Constitution.³ Determining the propriety of an exercise of personal jurisdiction over a defendant who is not a resident of the forum state is a two-step process. First, the Court must determine whether the exercise of jurisdiction would comport with the requirements of the long-arm statute of the forum state. See Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 653 (8th Cir.1982). Second, the Court must ascertain whether minimum contacts exist between each defendant and the forum state such that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice under the due process clause. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). See also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980). Once personal jurisdiction has been challenged, the plaintiff must make a prima facie showing of facts to support the exercise of personal jurisdiction. The burden then shifts to the party challenging the exercise to show that the court lacks jurisdiction. See Wines v. Lake Havasu Boat Manufacturing, Inc., 846 F.2d 40, 41-42 (8th Cir.1988) (per curiam).

The Missouri long-arm statute, Mo.Ann. Stat. § 506.500 (Vernon Supp.1988), confers jurisdiction over a person as to any cause of action arising from his transaction of any business within the state, his entering into any contract within the state, or his commission of a tortious act within the state. The scope of the statute was meant to be as broad as is consistent with the dictates of due process. See State ex rel. Deere and Co. v. Pinnell, 454 S.W.2d 889, 892 (Mo.1970) (en banc).

Plaintiff argues that the Omet partners are subject to this Court's jurisdiction under the "transacting business" prong of the Missouri long-arm statute. In support of that contention, plaintiff attaches to its suggestions in opposition to the motion to dismiss an affidavit executed by Bernard G. Huff, president of plaintiff,⁴ and the deposition of Robert W. Fillmore, vice-president of Koch Supplies, Inc., a company with which plaintiff claims Omet is now doing business.

Huff's affidavit chronicles the negotiations that took place between plaintiff and Omet during 1986 and 1987 with regard to plaintiff's proposed distribution of machines manufactured by Omet. Paragraph 4 of that affidavit states that "in July 1987, Sergio Volentieri and Bruno Valiani both of whom are partners of Omet traveled from Italy and met with me in the offices of Hantover in Kansas City, Missouri." Huff states in paragraph 5 that Omet "caused one of the Machines to be shipped and delivered to Hantover in Kansas City, Missouri" and that "Hantover's representatives escorted Omet's partners to Wisconsin and other U.S. locations to assess potential competition for their machines and to promote distribution thereof." Huff further states in paragraph 6 that Hantover performed certain acts in Missouri that constituted acceptance of the distributorship agreement.

Omet argues that plaintiff has shown only its own unilateral activities, activities of Omet unrelated to plaintiff's cause of action, and "incidental contacts," which are insufficient to satisfy either the Missouri long-arm statute or constitutional due process. We disagree.

We conclude that the acts enumerated in Huff's affidavit, which are not disputed by Omet, constitute the transaction of business under the Missouri long-arm statute. In State ex rel. Metal Service Center v. Gaertner, 677 S.W.2d 325, 327 (Mo.1984) (en banc), the Missouri Supreme Court directed that the "transaction of any business" prong of the Missouri long-arm statute must be construed broadly. The Court noted that the "business may consist of a single transaction, if that is the transaction sued upon." The Court held that the defendant in that case had transacted business in Missouri "by shipping materials into this state for work by plaintiff and retaking them after the work had been done." Id.

In an earlier case, Judge Collinson of this Court faced the question "whether ... one conference within the state of Missouri subjects defendant corporations to jurisdiction of the courts of this state." American Hoechst Corp. v. Bandy Laboratories, Inc., 332 F.Supp. 241, 243 (W.D.Mo.1970). After noting the trend toward liberal construction of the business transaction prong, the Court concluded that jurisdiction was properly exercised because the one business conference between the representatives of the parties that had taken place in Missouri "was preliminary to the execution of a contract between the parties out of which this suit directly arose."

Other Missouri cases have also held that a single meeting within Missouri may constitute the transaction of business within the meaning of the Missouri long-arm statute. In Watlow Electric Manufacturing Co. v. Sam Dick Industries, Inc., 734 S.W. 2d 295 (Mo.Ct.App.1987), the out-of-state defendant had communicated on numerous occasions by telephone and mail with the Missouri plaintiff and had sent its chief engineer to Missouri to finalize the design of a product defendant proposed to buy from plaintiff. The Court held that "this single meeting is sufficient to satisfy the transaction of business requirement of Section 506.500." Id. at 298; see also Charles Schmitt & Co. v. Barrett, 670 F.2d 802, 804 (8th Cir.1982); State...