Kleinfeld v. Link

• Citation: 457 N.E.2d 1187,9 Ohio App.3d 29
• Parties: , 9 O.B.R. 30 KLEINFELD, Appellee, v. LINK, Appellant.
• Decision Date: 22 March 1983
• Court: United States Court of Appeals (Ohio)

Page 29

9 Ohio App.3d 29

457 N.E.2d 1187, 9 O.B.R. 30

KLEINFELD, Appellee, v. LINK, Appellant.

Court of Appeals of Ohio, Third District, Allen County.

March 22, 1983.

Syllabus by the Court

The following factors should be considered as establishing the necessary "minimum contacts," in order for a court to obtain in personam jurisdiction over a non-resident defendant:

(1) established activity by non-resident in the forum state;

(2) non-resident takes advantage of privileges and benefits of forum state;

(3) non-resident solicits business through agents or advertising reasonably calculated to reach the forum state;

(4) it is foreseeable that non-resident will litigate in the forum state; and

(5) convenience to the litigants and fairness of requiring non-resident to come to the forum state.

Hunt, Moritz & Johnson and Jerry M. Johnson, Lima, for appellee.

Gooding, Evans & Huffman and Lawrence A. Huffman, Lima, for appellant.

PER CURIAM.

This is an appeal from a judgment of the Lima Municipal Court in favor of the plaintiff-appellee, Andrew J. Kleinfeld, which granted full faith and credit to a judgment rendered by a court of the state of Alaska.

In 1979 the defendant, Richard Link, an Ohio resident, placed an advertisement to sell a camera in a nationally circulated flyer containing numerous individual classified advertisements of articles for trade or sale (printed in Florida), entitled "Shutterbug Ads." The plaintiff, a resident of Alaska, read the ad and phoned the defendant in Ohio, making an offer to purchase. In May 1979, the plaintiff sent a $400 check to the Ohio defendant; and, thereafter, the camera was shipped to Alaska. According to the plaintiff, the camera arrived in Alaska damaged, and was therefore returned to Ohio along with a demand for the $400 already paid. Remaining unsatisfied, the plaintiff filed a complaint in the Alaska district court.

Defendant, having not responded to the properly served complaint, the Alaska court granted plaintiff a default judgment.

On May 12, 1982, the Lima Municipal Court granted full faith and credit to the Alaskan judgment finding that the Ohio defendant fell within the Alaskan long-arm statute and had the requisite "minimum contacts" with Alaska.

Appellant's sole assignment of error states:

"The trial court erred in finding that defendant-appellant had 'done business' in Alaska and further erred in giving full faith and credit to the Alaska judgment which judgment was unconstitutionally rendered by the Alaska Court."

Before proceeding to the issue we note that the defendant argues by brief that Alaska Code 9.05.015 was unconstitutionally applied and that Alaska is the forum non conveniens. Cf. Litsinger Sign Co. v. American Sign Co. (1967), 11 Ohio St.2d 1, 227 N.E.2d 609 .

The arguments to the extent made as to 'forum non conveniens' and as to 'doing business' are merged into the general question of due process which is hereinafter discussed and determined.

The narrow issue we must decide is whether Alaska, consistent with the due process requirements of the Fourteenth Amendment, could obtain in personam jurisdiction over the non-resident defendant.

A judgment rendered in violation of the Due Process Clause is void, subject to collateral attack, and not entitled to full faith and credit elsewhere. Pennoyer v. Neff (1877), 95 U.S. 714, 24 L.Ed. 565. The once inflexible Pennoyer requirements have evolved into state courts exercising personal jurisdiction over non-resident defendants so long as there exist "minimum contacts" between the defendant and the forum state. The "minimum contacts" requirement performs two functions. First, it protects the defendant from being required to defend in distant or inconvenient forums. Secondly, it ensures that states do not reach beyond the limits imposed on them by "their status as coequal sovereigns in a federal system." World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490.

The constitutional standard for obtaining non-resident jurisdiction was set forth in International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, wherein the court stated that a defendant must "have certain minimum contacts with * * * [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " An essential ingredient in these cases is whether the "quality and nature" of the defendant's activity is such that it is "reasonable" and "fair" to require him to conduct his defense in that state. International Shoe Co., supra, at 316-317, 66 S.Ct. at 158-159. In Hanson v. Denckla (1958), 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, the court stated that, "[i]t is essential in each case that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum State."

Here, appellee attaches great significance to McGee v. International Life Ins. Co. (1957), 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. In McGee, the court held that a single insurance contract between the non-resident defendant and the plaintiff was enough to avail the court of jurisdiction.

The court noted that the contract was delivered in the forum state, that the premiums were mailed for several years from there, and that the forum state had a manifest interest in protecting its residents from insurers who refused to pay. McGee, supra, at 223, 78 S.Ct. at 201. Courts have considered this case to be a high water mark in granting in personam jurisdiction. Several courts have limited this case to its facts with particular emphasis on its being an insurance case, noting that every state regulates insurance to a high degree. See, generally, Allied Finance Co. v. Prosser (1961), 103 Ga.App. 538, 119 S.E.2d 813; Conn v. Whitmore (1959), 9 Utah 2d 250, 342 P.2d 871; Annotation (1968), 20 A.L.R.3d 1201. Several other courts have similarly distinguished McGee, even though the contact with the forum state was one contract. See Chassis-Trak, Inc. v. Federated Purchaser, Inc. (D.N.J.1960), 179 F.Supp. 780; Clawson v. Garland (D.S.C.1965), 37 F.R.D. 324; Perlmutter v. Standard Roofing & Tinsmith Supply Co. (1964), 43 Misc.2d 885, 252 N.Y.S.2d 583; N.R.M. Corp. v. Pacific Plastic Pipe Co. (1973), 36 Ohio App.2d 179, 304 N.E.2d 248 . In any event, McGee is distinguishable from the case at bar, in that there were neither continual payments or contacts with the forum state, nor a compelling state interest to address (insurance).

Collectively the cases have enunciated several factors to weigh in determining "minimum contacts," to wit:

(1) established activity by non-resident in the forum state;

(2) non-resident takes advantage of privileges and benefits of forum state;

(3) non-resident solicits business through agents or advertising reasonably calculated to reach the forum state;

(4) it is foreseeable that non-resident will litigate in the forum state; and

(5) convenience to the litigants and fairness of requiring non-resident to come to the forum state.

With these factors, we proceed to analyze the contacts in the case at bar.

First, the defendant had no established business activity in the forum state. From the record, it appears this transaction was a one-time casual sale to a willing buyer. Neither the defendant, nor his agent, was ever present in Alaska or transacted any business there.

Secondly, it does not appear that the defendant ever took advantage of any of the benefits or services of Alaska, except for the roads or airspace used by the common carrier to make the camera delivery. These facts alone are simply insufficient to establish "minimum contacts." Also, the defendant did not avail himself of any particular benefit or law of Alaska by receiving a phone call and letter from Alaska. Darby v. Superior Supply Co. (1970), 224 Tenn. 540, 458 S.W.2d 423; Capital Dredge &...