Hartung v. Washington Iron Works

• Decision Date: 25 November 1964
• Docket Number: Civ. No. 477,476.
• Citation: 267 F. Supp. 408
• Parties: Arlene HARTUNG, Richard Seth Hartung and Ronda Lee Hartung, Plaintiffs, v. WASHINGTON IRON WORKS, a Washington Corporation, Defendant. Elsie HAMMAN, Plaintiff, v. WASHINGTON IRON WORKS, a Washington Corporation, Defendant.
• Court: U.S. District Court — District of Montana

267 F. Supp. 408

Arlene HARTUNG, Richard Seth Hartung and Ronda Lee Hartung, Plaintiffs, v. WASHINGTON IRON WORKS, a Washington Corporation, Defendant.

Elsie HAMMAN, Plaintiff, v. WASHINGTON IRON WORKS, a Washington Corporation, Defendant.

Civ. Nos. 477, 476.

United States District Court D. Montana, Billings Division.

November 25, 1964.

Marcus, McCroskey, Libner, Reamon, Williams & Dilley, Muskegon, Mich., Lee Overfelt, Billings, Mont., J. H. McAlear, Red Lodge, Mont., and Robert H. Wilson, Hardin, Mont., for plaintiffs.

Cooke, Moulton, Bellingham & Longo, Billings, Mont., for defendant.

MEMORANDUM OPINION

JAMESON, Chief Judge.

Defendant has filed a motion in each of these cases to dismiss on the grounds of (1) lack of jurisdiction over the person of the defendant, and (2) insufficiency of process. Affidavits and briefs were filed on behalf of the respective parties, and a hearing was held pursuant to the provisions of Rule 12(d) of the Federal Rules of Civil Procedure.

The motions involve the construction of Rule 4B(1) of the Montana Rules of Civil Procedure, which reads in pertinent part:

"Subject to Jurisdiction. All persons found within the State of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief arising from the doing personally, through an employee, or through an agent, of any of the following acts:

* * * * * *

"(b) the commission of any act which results in accrual within this state of a tort action".

In its brief defendant assumed, for the purpose of argument only, "that service of process on the defendant was valid under the Montana Rules and under Montana Law, and that Rule 4B(1) is intended to, and does, extend the jurisdiction of the Montana courts over foreign corporations to the full extent permitted by the due process clause of the Fourteenth Amendment"; but defendant contends "that the due process traditional notions of fair play require the result that defendant has not, by its conduct submitted itself to the jurisdiction of the Montana courts".

This court has had occasion to review the Montana cases construing the phrase "doing business in the State of Montana" with respect to both substituted service and the regulation of corporations. See Graham & Ross Mercantile Co. v. Sprout, Waldron & Co., 1959, D.C., 174 F.Supp. 551, and Minnehoma Financial Company v. Van Oosten, 1961, D.C., 198 F.Supp. 200.

These cases and the Montana cases discussed therein were decided prior to the enactment of Rule 4B. Apparently, the Montana Supreme Court has not yet construed Rule 4B. The only case decided since its adoption, Greene Plumbing & Heating Co. v. Morris, Sept. 1, 1964, 21 St.Rep. 402, is not inconsistent with the conclusion reached herein.

The concept of Rule 4B is far more liberal than the old concept of "doing business in the state" considered in prior decisions. The Commission Note with respect to this rule reads in part:

"This rule expands the exercise of personal jurisdiction over nonresidents in cases having substantial contacts with Montana. It is in accord with a trend that began more than thirty years ago with the nonresident motorist acts. The constitutional basis for such expanded jurisdiction is afforded by such decisions of the Supreme Court of the United States as International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 9 L.Ed. 95 (1945), and McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). * * * Under the new and flexible standard of due process a state may exercise personal jurisdiction whenever the relation between it and the particular litigation sued upon makes it reasonable for the state to try the particular case. In such an inquiry importance attaches to what the defendant has caused to be done in the forum state." See Mason, The Montana Rules of Civil Procedure, 23 Mont.L.Rev. 3, 12.

The affidavit of Jess A. Pardo, sales engineer for the defendant, states that negotiations for the sale of the cableway in question were conducted between affiant in the State of Washington and representatives of Morrison-Knudsen Company Inc. in Boise, Idaho, and that none of the contacts took place within the State of Montana; that the defendant did not supervise the installation of the cableway.

The affidavit states further, however, that affiant "did go to Montana on several occasions to examine and consult with reference to said cableways in special instances requested by Morrison-Knudsen Company, Inc."; that he "visited the dam site after installation of the first cableway and prior to the installation of the second cableway * * *"; that defendant's shop foreman "at the request of the contractor went to Yellowtail Dam to check certain gears on the hoisting unit on said cableways, spending two days in Montana before the accident complained of in this suit and before the installation of the second cableway"; that another employee spent approximately two days in Montana at the request of the contractor doing "certain work with reference to concrete cars, a problem entirely unrelated to the cableways proper".

Attached to the affidavit are copies of documents. In a letter from Pardo to Morrison-Knudsen in Boise dated April 27, 1961, (Ex. A) he states, "We are revising our quotation on cableway equipment for Yellowtail Dam * * *" A purchase order (Ex. B) dated June 3, 1961, from Morrison-Knudsen to defendant, stamped "received", states as the first item "1 25 ton cableway for use on Yellowtail Dam near Hardin,...