Jones Enterprises, Inc. v. Atlas Service Corporation, 25516-25518.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 442 F.2d 1136
• Docket Number: No. 25516-25518.,25516-25518.
• Parties: JONES ENTERPRISES, INC., a corporation, and Western, Ltd., a corporation, comprising a joint venture known as Jones-Western, Appellee-Respondent, v. ATLAS SERVICE CORPORATION, a corporation, and Atlas Prestress, Inc., a/k/a Atlas Prestressing Co., a corporation, Appellants-Petitioners. JONES ENTERPRISES, INC., etc. v. EMPIRE PRESTRESS, INC. JONES ENTERPRISES, INC., etc. v. T. Y. LIN & ASSOCIATES, INC.
• Decision Date: 07 April 1971

442 F.2d 1136 (1971)

JONES ENTERPRISES, INC., a corporation, and Western, Ltd., a corporation, comprising a joint venture known as Jones-Western, Appellee-Respondent,
v.
ATLAS SERVICE CORPORATION, a corporation, and Atlas Prestress, Inc., a/k/a Atlas Prestressing Co., a corporation, Appellants-Petitioners.
JONES ENTERPRISES, INC., etc.
v.
EMPIRE PRESTRESS, INC.
JONES ENTERPRISES, INC., etc.
v.
T. Y. LIN & ASSOCIATES, INC.

Nos. 25516-25518.

United States Court of Appeals, Ninth Circuit.

February 25, 1971.

Rehearing Denied April 7, 1971.

442 F.2d 1137

George Hayes (argued), of Delaney, Wilses, Moore, Hayes & Reitman, Anchorage, Alaska, for Atlas Service Corp. and others.

Murphy Clark (argued), of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, Alaska, King, Miller, Anderson, Nash & Yerke, Portland, Or., for Empire Prestress, Inc.

Michael W. Roberts (argued), of Boyko & Simmons, Los Angeles, Cal., for T. Y. Lin & Associates, Inc.

Jack L. Joyce, Corvallis, Or. (argued), of Kobin & Meyer, Portland, Or., Burr, Pease & Kurtz, Anchorage, Alaska, for appellee.

Before CHAMBERS, JERTBERG, and HUFSTEDLER, Circuit Judges.

Rehearing Denied in No. 25518 April 7, 1971.

HUFSTEDLER, Circuit Judge:

Appellants, Atlas Service Corporation, Atlas Prestressing, Inc.,¹ Empire Prestress, Inc., and T. Y. Lin & Associates, pursuant to leave of this court (28 U.S. C. § 1292(b)), appeal from an order denying their motions to quash service of process upon them. Appellee, Jones-Western, a joint venture composed of Jones Enterprises, Inc., and Western, Ltd., brought a breach of contract action based on diversity of citizenship in the District Court for the District of Alaska and obtained substituted

442 F.2d 1138

service upon each of the appellants following the procedure adopted by the Alaskan long-arm statute. Since this is a diversity case, amenability of appellants to in personam jurisdiction depends upon Alaskan law defining Alaska's jurisdiction, read with the constitutional limitations imposed by the due process clause. Appellants contend that they are immune from the assertion of in personam jurisdiction in Alaska, because none had sufficient contacts with Alaska to render it amenable to substituted process

The action arises from the collapse of an apartment building in Anchorage, during an earthquake on March 27, 1964. Jones-Western was the general contractor for the construction of the building. Empire Prestress, Inc. ("Empire"), contracted with Jones-Western to supply certain materials to the job, including prestressed tendons and anchors, shop drawings, and design calculations, together with installation equipment. Empire subcontracted the supply of tendons and anchors to Atlas, and subcontracted the supply of engineering designs and drawings for the prestressed items to T. Y. Lin & Associates ("Lin"). Jones-Western's complaint charged that the collapse was caused by faulty engineering designs and drawings and by the failure of the prestressed materials to meet contract specifications.

Before we reach the merits of the jurisdictional question we dispose of two preliminary contentions.

First, appellants argue that Jones-Western waived its right to assert in personam jurisdiction against them because it yielded to an earlier ruling of the district court quashing service. A quick sketch of the procedure antedating the order from which the appeal is taken will suffice. The appellants severally moved to quash service of process. The court initially indicated that it would grant the motions, but in its order, the court gave Jones-Western 30 days within which "to file an amended complaint alleging facts establishing the jurisdiction of this Court." The order also stated that, if no amended complaint were thus filed, it would dismiss the action, or, alternatively, if Jones-Western elected to stand on the complaint, the court, upon receiving notice of the election, would dismiss the action. Within the 30-day period, Jones-Western filed a document labeled "Amended Complaint," that added no new facts, but that cited Duple Motor Bodies, Ltd. v. Hollingsworth (9th Cir. 1969) 417 F.2d 231, a decision that had come down after the district court's initial ruling. The district court addressed a memorandum to counsel stating its intention, based on Duple, to deny the motions to quash and to dismiss, and ordering counsel to file supplemental briefs directed to Duple. Thereafter, the court entered the order denying the motions and staying the proceedings for the purpose of applying to our court for an interlocutory appeal. On these facts we see no basis for any waiver or estoppel on Jones-Western's part. The district court's initial order showed on its face that it was not intended to be final forthwith. Before the order became final, Jones-Western filed an additional brief. True, Jones-Western labeled the document "Amended Complaint," rather than a motion to reconsider, accompanied by points and authorities. But that procedural irregularity does not change the substance of what happened. The misbranding is not the foundation for a claim of either waiver or estoppel. (Cf. Rule 8(f), Fed.R.Civ.Proc.; Rubenstein v. United States (10th Cir. 1955) 227 F.2d 638, cert....