Lee v. Goshen Rubber Co., Inc., 20A05-9307-CV-242

• Decision Date: 13 June 1994
• Docket Number: No. 20A05-9307-CV-242,20A05-9307-CV-242
• Citation: 635 N.E.2d 214
• Parties: Alexander J.R. LEE, Appellant-Defendant v. GOSHEN RUBBER COMPANY, INC., Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 214

635 N.E.2d 214

Alexander J.R. LEE, Appellant-Defendant v. GOSHEN RUBBER COMPANY, INC., Appellee-Plaintiff.

No. 20A05-9307-CV-242.

Court of Appeals of Indiana,

Fifth District.

June 13, 1994.

Transfer Denied Sept. 26, 1994.

William J. Nye, Elkhart, for appellant.

Alan L. Weldy, Yoder Ainlay Ulmer & Buckingham, Goshen, for appellee.

SHARPNACK, Chief Judge.

Alexander J.R. Lee appeals the trial court's denial of his motion to dismiss for lack of personal jurisdiction. We affirm. Lee raises one issue on appeal, which we restate as whether Lee had sufficient minimum contacts with the State of Indiana to permit the exercise of personal jurisdiction over Lee.

Goshen Rubber Company, Inc. (Goshen Rubber) is an Indiana corporation doing business in Goshen, Elkhart County, Indiana. At all times relevant herein, Lee was a resident of North Carolina. In late 1984, Lee responded to an advertisement that Goshen Rubber had placed in a Greensboro, North Carolina newspaper. Goshen Rubber hired Lee as a salesman and employed him from December 3, 1984, through October 17, 1990. Lee was in Goshen from December 3 through December 7, 1984, for his initial training. In addition, he was in Goshen from July 6 through July 9, 1988, for meetings and to assist during a strike. Lee regularly communicated by telephone with his superiors in Goshen regarding business matters and other issues related to his employment. Lee also regularly corresponded with Goshen Rubber by mail from his home in North Carolina, including the submission of sales materials, expense vouchers, and other claims which form the basis of Goshen Rubber's lawsuit against Lee.

Goshen Rubber filed a complaint against Lee on December 26, 1991, claiming that Lee had breached his contract of employment by not working exclusively for Goshen Rubber, had submitted fraudulent expense vouchers and claims for car payments and insurance, and had converted funds Goshen Rubber reimbursed to him. On February 7, 1992, Lee moved to dismiss for lack of personal jurisdiction. On February 24, 1992, Lee moved for change of venue from the judge. On April 27, 1993, the trial court, acting with a new judge, denied Lee's motion to dismiss. On September 27, 1993, this court granted Lee's petition for interlocutory appeal.

A defendant may challenge the jurisdiction of the trial court over him either by affirmative defense as enumerated in Ind. Trial Rule 8(C) or by motion to dismiss pursuant to T.R. 12(B)(2). When a defendant attacks the jurisdiction over his person, he bears the burden of proof upon that issue by a preponderance of the evidence, unless the lack of jurisdiction is apparent upon the face of the complaint. Weenig v. Wood (1976), 169 Ind.App. 413, 349 N.E.2d 235, 240-41, trans. denied.

Lee argues that the trial court lacks personal jurisdiction over him, and that therefore, the trial court erred in denying his motion to dismiss. Goshen Rubber argues that Lee had sufficient minimum contacts with the State so as to satisfy the requirements of Indiana's long-arm statute, which provides, in pertinent part:

"Any person or organization that is a nonresident of this state, a resident of this state who has left the state, or a person whose residence is unknown, submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or his agent:

(1) doing any business in this state;

(2) causing personal injury or property damage by an act or omission done within this state;

(3) causing personal injury or property damage in this state by an occurrence, act or omission done outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue or benefit from goods, materials, or services used, consumed, or rendered in this state;

(4) having supplied or contracted to supply services rendered or to be rendered or goods or materials furnished or to be furnished in this state; ..."

T.R. 4.4(A)(1), (2), (3), (4). We agree with Goshen Rubber.

In Tietloff v. Lift A-Loft Corp. (1982), Ind.App., 441 N.E.2d 986, this court summarized the factors to be considered in employing Indiana's long-arm statute:

"To exercise jurisdiction consonant with due process over a non-resident defendant, 'certain minimum contacts' must exist between the non-resident defendant and the forum 'such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." ' International Shoe Co. v. Washington (1945) 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 quoting Milliken v. Meyer (1940) 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278. A mechanical or quantitative evaluation of a defendant's activities in a state cannot resolve the question of the reasonableness of the exercise of personal jurisdiction. Rather, it depends upon the quality and nature of the defendant's activity in relation to the matter under litigation. Hutson v. Fehr Bros. (8th Cir.1978) 584 F.2d 833 (construing Arkansas law). The facts of each case must be weighed. At a minimum, the court must find 'some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.' Hanson v. Denckla (1958) 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283. The inquiry focuses not only upon the quantity, quality and nature of the defendant's activities but also upon the relationship of those activities and the forum. Rush v. Savchuk (1980) 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516; Kulko v. California Superior Court (1978) 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132; Shaffer v. Heitner (1977) 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683. The focus is on the defendant's activities within the forum state, not on those of the plaintiff. World Wide Volkswagon v. Woodson (1980) 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490.

The factors to be considered in determining whether fair play and substantial justice standards have been met may be summarized as follows: (1) The nature and quality of the contacts with the forum state; (2) the quantity of contacts with the state; (3) the relationship between those contacts and the cause of action; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties. See Aftanase v. Economy Baler Co. (8th Cir.1965) 343 F.2d 187, 197. The first three are the primary factors in determining whether International Shoe standards are met. Id."

Tietloff, 441 N.E.2d at 989.

The nature and quality of Lee's contacts with Indiana are significant. The affidavit of Robert Alexander, vice president of finance for Goshen Rubber, shows that Lee was acting as an employee of Goshen Rubber on the two occasions that he was...