Kopke v. A. HARTRODT SRL

• Decision Date: 10 July 2001
• Docket Number: No. 99-3144.,99-3144.
• Parties: Timothy J. KOPKE, Plaintiff-Respondent, UNITED STATES FIDELITY & GUARANTY COMPANY, a foreign insurance corporation and Leicht Transfer and Storage Co., a Wisconsin corporation, Subrogated-Plaintiffs-Respondents, v. A. HARTRODT S.R.L., a foreign corporation, Defendant, CARTIERE BINDA IN LIQUIDAZOINE S.P.A., a foreign corporation, Defendant-Third-Party Plaintiff-Respondent, SOCIETA' COOPERATIVA L'ARCIERE, a foreign corporation, Defendant-Appellant, v. RIUNIONE ADRIATICA DI SICURTA S.P.A., a foreign corporation, Third-Party Defendant-Respondent.
• Court: Wisconsin Supreme Court

245 Wis.2d 396

2001 WI 99

629 N.W.2d 662

Timothy J. KOPKE, Plaintiff-Respondent, UNITED STATES FIDELITY & GUARANTY COMPANY, a foreign insurance corporation and Leicht Transfer and Storage Co., a Wisconsin corporation, Subrogated-Plaintiffs-Respondents, v. A. HARTRODT S.R.L., a foreign corporation, Defendant, CARTIERE BINDA IN LIQUIDAZOINE S.P.A., a foreign corporation, Defendant-Third-Party Plaintiff-Respondent, SOCIETA' COOPERATIVA L'ARCIERE, a foreign corporation, Defendant-Appellant, v. RIUNIONE ADRIATICA DI SICURTA S.P.A., a foreign corporation, Third-Party Defendant-Respondent.

No. 99-3144.

Supreme Court of Wisconsin.

Oral argument April 30, 2001.

Decided July 10, 2001.

For the defendant-appellant there were briefs by W.H. Levit Jr., Winston A. Ostrow, Michael B. Apfeld and Godfrey & Kahn, S.C., Milwaukee, and oral argument by Michael B. Apfeld.

For the plaintiff-respondent there was a brief (in the court of appeals) by Lee J. Geronime, David A. Krutz, Leslie C. Mastey and Michael Best & Friedrich LLP, Milwaukee, and oral argument by Chris J. Trebatoski.

For the defendant-third-party plaintiff-respondent there was a brief (in the court of appeals) by Trevor J. Will, Eric J. Massen and Foley & Lardner, Milwaukee, and oral argument by R. George Burnett.

For the third party-defendant-respondent there was a brief by Frank J. Daily, Daniel J. La Fave and Quarles & Brady LLP, Milwaukee, and oral argument by Daniel J. LaFave.

¶ 1. WILLIAM A. BABLITCH, J.

Societa' Cooperativa L'Arciere (L'Arciere), an Italian cooperative, challenges the exercise of in personam jurisdiction over it. This challenge presents two inquiries: (1) Whether the facts presented satisfy Wisconsin's long-arm statute, Wis. Stat. § 801.05(4) (1997-98)¹; and (2) Whether L'Arciere has "minimum contacts" with this State such that the court's exercise of jurisdiction would be fair and in accordance with the Fourteenth Amendment's due process requirements. We conclude that the requisite tests to establish personal jurisdiction over L'Arciere are satisfied. Accordingly, we affirm the ruling of the circuit court.

FACTS

¶ 2. In May of 1997 Timothy J. Kopke (Kopke), a truck driver, was seriously injured when he opened a cargo container in Neenah, Wisconsin. The injury occurred when a pallet loaded with paper fell out of the cargo container and onto Kopke. The paper had been shipped to Neenah from Crusinello, Italy, by its manufacturer, Cartiere Binda in Liquidazione, S.p.A. (Binda). The paper had been purchased from the Binda's Crusinello mill by CTI Paper USA, Inc. (CTI). CTI had been purchasing paper product from the Crusinello mill since 1991.

¶ 3. CTI is not a party to this action, although it supplied damage reports on cargo containers received from Binda. Forty-four damage reports were issued between August 1996 and September 1997.

¶ 4. In 1995 Binda entered into a contract with L'Arciere, an employee-owned Italian cooperative, to provide workers to load product into cargo containers. L'Arciere workers and Binda employees each played a role in the loading of product into cargo containers.

¶ 5. Binda employees would place the paper to be shipped on pallets and cover it with shrink-wrap. Binda's setup department prepared loading plans for the containers. Binda produced loading plans for five of the shipments occurring between November 1996 and May 1997. At the top of these plans is written either "Cont. X CTI Appleton," "Contenitore X CTI" or Contenitore X Neenah." Kopke explains that "Contenitore," or "cont." as it is abbreviated, is an Italian word meaning "container" and "X" is an abbreviation for "per," meaning "to." "Contenitore X CTI Appleton" identifies a container as being loaded for shipment to CTI in Appleton.

¶ 6. In conformity with the loading plan, L'Arciere workers moved the pallets into the cargo container. The L'Arciere workers placed the pallets into the cargo container and secured it using boards, bracing beams, and inflated air bags to fill side spaces. Binda supplied these packing materials.

¶ 7. After Kopke sustained his injury he brought a claim for damages against Binda, L'Arciere, and others. L'Arciere moved to dismiss for lack of personal jurisdiction. Brown County Circuit Court Judge William M. Atkinson denied this motion. Judge Atkinson ruled that L'Arciere's acts of stabilizing the products being shipped by surrounding the product with air bags, and installing bracing beams and boards into the cargo container, were acts that were part of a processing of a product. The circuit court judge was also satisfied that the minimum contacts requirement for due process purposes was met.² L'Arciere appealed. The court of appeals accepted L'Arciere's appeal, and subsequently the court certified the appeal to this court pursuant to Wis. Stat. (Rule) § 809.61.

ANALYSIS

[1, 2]

¶ 8. One issue is presented: Did the circuit court err by denying a motion to dismiss for lack of personal jurisdiction over L'Arciere? Every personal jurisdiction issue requires a two-step inquiry. In re Liquidation of All-Star Ins. Corp., 110 Wis. 2d 72, 76, 327 N.W.2d 648 (1983) (discussing personal jurisdiction pursuant to Wis. Stat. § 645.04(5)(a)); Lincoln v. Seawright, 104 Wis. 2d 4, 10-11, 310 N.W.2d 596 (1981). It must first be determined whether defendants are subject to jurisdiction under Wisconsin's long-arm statute. See Lincoln, 104 Wis. 2d at 10

. If the statutory requirements are satisfied, then the court must consider whether the exercise of jurisdiction comports with due process requirements. Id. "[P]laintiff has the minimal burden of establishing a prima facie threshold showing that constitutional and statutory requirements for the assumption of personal jurisdiction are satisfied." Ammon v. Kaplow, 468 F. Supp. 1304, 1309 (D. Kan. 1979). In this review, we may consider documentary evidence and weigh affidavits in reaching a determination as to whether this burden has been met. Id. "Factual doubts are to be resolved in favor of the plaintiff." Id. We begin our analysis with consideration of Wisconsin's long-arm statute.

¶ 9. Wisconsin Stat. § 801.05(4) authorizes the exercise of personal jurisdiction over nonresidents whose act or omission committed outside of Wisconsin gives rise to an injury within the state. All the participants to this appeal agree that if the courts have personal jurisdiction over L'Arciere, it arises under § 801.05(4)(b), set forth below:

A court of this state having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to s. 801.11 under any of the following circumstances:

. . .

(4) Local injury; foreign act. In any action claiming injury to person or property within this state arising out of an act or omission outside this state by the defendant, provided in addition that at the time of the injury, either:

. . .

(b) Products, materials or things processed, serviced or manufactured by the defendant were used or consumed within this state in the ordinary course of trade.

[3-5]

¶ 10. Application of Wis. Stat. § 801.05(4)(b) to the facts of this case presents a question of law, which we review independently. Marsh v. Farm Bureau Mut. Ins. Co., 179 Wis. 2d 42, 52, 505 N.W.2d 162 (Ct. App. 1993). Wisconsin's long-arm statute is liberally construed in favor of jurisdiction. Id. (citing Lincoln, 104 Wis. 2d at 9). The plaintiff must carry the burden of establishing jurisdiction. Lincoln, 104 Wis. 2d at 9.

¶ 11. The dispute here is focused upon whether L'Arciere engaged in conduct described in Wis. Stat. § 801.05(4)(b). Kopke asserts that L'Arciere engaged in "processing." In support of his position, Kopke relies upon Nelson by Carson v. Park Industries, Inc., 717 F.2d 1120 (7th Cir. 1983)

. In Nelson, the Seventh Circuit Court of Appeals examined § 801.05(4)(b) (1981-82) and concluded that "the word `processed' should be interpreted to include a distributor's purchase and sale of goods in the normal course of the distribution of those goods." Id. at 1124. The court then further defined "to process" as follows:

The verb "to process" certainly may refer to the narrower concept of preparing something in the sense of manufacturing it. However, it also has the broader definitions of subjecting something to a particular system of handling to effect a particular result and preparing something for market or other commercial use by subjecting it to a process. See Webster's Third New International Dictionary of the English Language (1963). We think these broader definitions include the actions of a distributor such as [the defendant], i.e., purchasing and selling goods in the ordinary course of trade in a distribution system.

Id. at 1124 n.5

¶ 12. Kopke asserts that the activities performed by L'Arciere at the Binda mill with respect to the paper product falls directly within the definition of "process" set forth in Nelson. L'Arciere had an exclusive contract with Binda to load product at the mill. Kopke points out that damage reports produced by CTI show that L'Arciere loaded at least 45 cargo containers for shipment to Wisconsin; 39 of which arrived between November 1996 and May 1997.³ He argues that L'Arciere processed the product for shipment to Wisconsin when it loaded and secured the product in the cargo container. This loading was, in Kopke's view, a necessary function in preparing the product for market, for the product would not have arrived in Neenah, Wisconsin, without the loading performed by L'Arciere.

¶ 13. In rebuttal, L'Arciere asserts that the ordinary understanding of the word "process" as it is used in Wis. Stat. § 801.05(4)(b) means an action directed toward the transformation of the object being processed. It contends that this meaning is supported by dictionary definitions, the placement of the word "process" with "manufactured" and "serviced" in the statute, and by examining how the legislature used the word "process" elsewhere in the Wisconsin...