Jurko v. Jobs Europe Agency

• Decision Date: 30 January 1975
• Citation: Jurko v. Jobs Europe Agency, 43 Ohio App.2d 79, 334 N.E.2d 478, 72 O.O.2d 287 (Ohio App. 1975)
• Parties: , 72 O.O.2d 287 JURKO, Appellant, v. JOBS EUROPE AGENCY et al., Appellees.
• Court: Ohio Court of Appeals

Page 79

43 Ohio App.2d 79

334 N.E.2d 478, 72 O.O.2d 287

JURKO, Appellant, v. JOBS EUROPE AGENCY et al., Appellees.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 30, 1975.

Syllabus by the Court

1. Plaintiff's complaint must sufficiently plead facts alleging a non-resident defendant's minimal contacts with Ohio thereby alleging the court's jurisdiction over his person in order to withstand such defendant's motion to quash service of summons and to dismiss based on the Civil Rule 12(B)(2) defense of lack of personal jurisdiction.

2. While plaintiff is entitled to have his factual allegations sustaining jurisdiction over a defendant's person construed in his favor, once challenged plaintiff has the burden of making a prima facie showing of personal jurisdiction and supporting such factual allegations.

3. While a hearing is preferred and contemplated under Civil Rule 12(D), a court can within its discretion in an appropriate case rule on a Civil Rule 12(B)(2) jurisdictional question on the basis of affidavits alone.

4. Where a court grants a defendant's motion to dismiss on the basis of the Civil Rule 12(B)(2) defense of lack of personal jurisdiction, such dismissal should not prejudice the action on the merits barring plaintiff's right to seek to file an amended or subsequent complaint.

Harry E. Field, Mentor, and Seth B. Marks, Cleveland, for appellant.

James F. Koehler, Chesterland, for appellees.

JOHN V. CORRIGAN, Judge.

On November 9, 1973, plaintiff Robert M. Jurko filed a complaint in Common Pleas Court requesting service on defendants Jobs Europe Agency and Frank X. Gordon, Jr., its director, at a Panorama City, California address. The complaint alleged that:

'First Claim

'1. Defendants are engaged in the occupation of procuring temporary employment with European employers for young adult Americans.

'2. Defendants offer guaranteed salary opportunities and procurement of all necessary work permits required by various countries of participating employment through direct mail contact and national advertising, said guarantees to be provided to the applicant upon applicant's payment of a stipulated fee of One Hundred and Sixty Dollars ($160.00).

'3. Plaintiff, in reliance thereon, contracted with the defendants for a position of employment in Switzerland and performed all conditions precedent of said agreement reguired to be performed by him.

'4. Defendant has breached the contract by failing to provide to the plaintiff the proper information for the procurement of the necessary work permit for employment in Switzerland.

'5. As a result thereof, plaintiff was unable to legally begin his employment as expected, he was expelled from the Country of Switzerland, he was subject to severe criminal penalties in Switzerland, he received a permanent denial of entry from the Swiss Government as evidenced by an official stamp on plaintiff's passport signifying permanent expulsion from Switzerland, all of which caused plaintiff to suffer mental anxiety and embarrassment.

'6. Plaintiff incurred plane fare, lost wages and travel expenses in the amount of Three Thousand Dollars ($3,000.00).

'Second Claim

'1. For plaintiff's second claim, he adopts by reference the statements contained in paragraphs 1-6 of the first claim of his complaint.

'2. Defendants did negligently perform their duty imposed upon them by virtue of being an employment agency for jobs requiring procurement of foreign work permits by providing plaintiff with erroneous instructions regarding obtainment of said permit.

'Third Claim

'1. For plaintiff's third claim, he adopts by reference the statements contained in paragraphs 1 and 2 of the second claim of his complaint.

'2. On October 2, 1972, defendants represented to plaintiff that plaintiff should enter Switzerland as a tourist and that plaintiff could then obtain a permit after entry.

'3. Said work permit is essential for employment in Switzerland.

'4. When defendants made such representations they knew, or should have known, that such information was false, thereby intending to mislead the plaintiff.

'5. Plaintiff was unaware of the falsity of said statement and relied upon the truth of said statement.

'6. As a result of the foregoing false representation plaintiff has been damaged in the sum of Three Thousand Dollars ($3,000.00).

'Wherefore, plaintiff demands judgment against defendant in the sum of $3,000.00 compensatory damages, $40,000.00 special damages, $50,000.00 punitive damages, attorney's fees and costs.'

On January 14, 1974, plaintiff requested supplemental service on defendants at a new address in Santa Cruz, California. On February 25, 1974, defendant Gordon filed a motion to dismiss and to quash service on the ground that the court lacked personal jurisdiction, accompanied by the affidavit of a Cleveland attorney for Gordon which stated that, to the best of the attorney's knowledge, Gordon had never transacted any business in Ohio nor committed any act in Ohio which could form the basis for personal jurisdiction.

On March 18, 1974, both defendants filed a brief in support of the motion to dismiss accompanied by Gordon's affidavit filed in his own behalf and as principal of Jobs Europe which stated that neither he nor the agency had ever transacted any business in Ohio with plaintiff. On April 2, 1974, plaintiff filed a brief in opposition unaccompanied by any supporting affidavit.

On April 15, 1974, the court granted defendants' motion and dismissed the action with prejudice. Plaintiff filed a timely appeal and has assigned as error that:

'1. The Court of Common Pleas erred in granting the defendants' motion to dismiss on the grounds that no jurisdictional facts were alleged in the complaint.

'2. The Court of Common Pleas erred in granting defendants' motion to dismiss on the grounds that there was not sufficient business transacted in this state to sustain minimal contacts.

'3. The Court of Common Pleas erred in granting defendants' motion to dismiss when there was a tortious act committed in this state by the defendants.'

Plaintiff-appellant's assignments of error will be consolidated as all three raise the same issue, which is, whether the complaint pleaded sufficient facts to withstand a motion to quash service based on the defense of lack of personal jurisdiction.

While not denominated as such, the lower court clearly granted the motion to dismiss on the basis of lack of personal jurisdiction, pursuant to Civil Rule 12(B)(2). The court held no hearing and received no evidence on the jurisdictional question, but dismissed the action with prejudice solely on the basis of the complaint challenged by defendants-appellees' affidavits.

Two recent Supreme Court decisions indicate that the failure to plead jurisdictional facts renders a complaint subject to dismissal on a motion to quash service. In Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio St.2d 303, 272 N.E.2d 127, the court stated:

'The next matter for our consideration is the failure of plaintiffs to plead any fact supporting the requirements of the long-arm statute for obtaining jurisdiction over the three Tilley Lamp defendants. We note the affidavit filed on behalf of the three Tilley Lamp defendants in the Common Pleas Court, which recites:

'(Text of affidavit in which defendants denied that they transacted any business in Ohio, omitted.)

'There is no proof in the record, either by way of counter-affidavits or sworn testimony, which would establish 'minimal contacts' in Ohio of the Tilley Lamp defendants which are essential before jurisdiction can be acquired. Appellees assert that 'it is absurd to claim that these jurisdictional facts had to be pleaded in 1963,' two years before the effective date of the long-arm statute. However, such requirement might well have been accomplished, if facts do exist, by filing amended petitions alleging such minimal contacts, or by the filing of affidavits or other documents establishing such minimal contacts at the time when plaintiffs attempted to effectuate service on December 9, 1965.' 27 Ohio St.2d at 307-308, 272 N.E.2d at 130.

Following this rationale the Lantsberry court held in syllabus that:

'Where there is no proof of record establishing the existence of minimum contacts between Ohio and a nonresident corporation at the time service of summons on the corporation was made under R.C. §§ 2307.382 and 2307.383, a motion to quash such service should be sustained.'

In the earlier decision of Wright v. Automatic Valve Co. (1969), 20 Ohio St.2d 87, 253 N.E.2d 771, the court cited R.C. 2307.382(A)(5), and reasoned that:

The petition sets forth in substantially the statutory language that defendant 'might reasonably have expected . . . (the plaintiff) to use, consume, or be affected by the (defendant's) goods in this state.' However, it fails to allege specifically one or more of the three additional grounds, as numbered above, which are also prerequisites to jurisdiction of the defendant authorized by statute. Nor does it set forth allegations sufficient to support a reasonable inference that defendant regularly does or solicits business, or engages in a persistent course of conduct in Ohio, or derives substantial revenue from goods used or consumed in Ohio.' 20 Ohio St.2d at 88, 253 N.E.2d at 772. (Emphasis in original.)

The Wright court therefore held that:

'Plaintiff not having pleaded facts sufficient to meet the statutory requirement to obtain jurisdiction of the defendant, the motion to quash was properly sustained by the lower court.' 20 Ohio St.2d at 89, 253 N.E.2d at 772.

On this basis defendants argue that a complaint must plead jurisdictional facts and that plaintiff's action was properly dismissed for its failure to adequately plead or otherwise factually establish personal jurisdiction. Plaintiff, however, argues that his complaint sufficiently pleaded personal jurisdiction and further that since the adoption...