McGowan Grain, Inc. v. Sanburg
| Decision Date | 03 April 1987 |
| Docket Number | No. 85-597,85-597 |
| Citation | 403 N.W.2d 340,225 Neb. 129 |
| Court | Nebraska Supreme Court |
| Parties | McGOWAN GRAIN, INC., a Nebraska Corporation, Appellant, v. Ronald D. SANBURG and Darrell Strickler, Appellees. |
Syllabus by the Court
1. Due Process: Jurisdiction. In order to subject a defendant to a judgment in personam, if the defendant is not within the territory of the forum, due process requires that such defendant have certain minimum contacts with the forum state so that maintenance of the suit does not offend traditional notions of fair play and substantial justice.
2. Due Process: Jurisdiction. Within the concept of minimum contacts, due process protects against inconvenient litigation which imposes an unreasonable or unfair burden on a defendant.
3. Due Process: Jurisdiction: States. Fair warning that activity in a forum state may result in personal jurisdiction is satisfied if a defendant purposefully directs activities at the forum state and its residents and injury is caused by the defendant's activity within the forum state.
4. Due Process: Jurisdiction: States. Where a nonresident individual purposefully derives benefit from interstate activities, fairness requires such individual to account for the consequences arising proximately from the individual's activities in the forum state.
5. Jurisdiction: Principal and Agent: Due Process: Corporations. The "fiduciary shield" doctrine is not a constitutional principle precluding personal jurisdiction over a nonresident officer, agent, or employee of a corporation. If a nonresident, as a corporate officer, agent, or employee, has contacts which satisfy standards imposed by a forum state's long-arm statute and the requirements of due process, personal jurisdiction over such nonresident may be obtained in the forum state.
Robert C. McGowan, Jr., Omaha, for appellant.
James T. Blazek and Martin Cahill, Omaha, for appellees.
McGowan Grain, Inc., sued Ronald D. Sanburg (Ron Sanburg) and Darrell Strickler in a contract action brought in the district court for Douglas County. After sustaining special appearances by Ron Sanburg and Strickler, the district court dismissed McGowan's action. We reverse and remand these proceedings.
At the hearing on the special appearances, affidavits provided the background and factual basis on which the court determined there was no personal jurisdiction over Ron Sanburg and Strickler.
In 1981, the Nebraska Grain & Feed Dealers Association published a "grain & feed directory & buyers guide." At page 105 of that publication there appeared the advertisement of the Sanburg Co., Inc., "Truck Grain Merchants of the Midwest," informing readers that Sanburg Co. had a toll-free line for customers in states bordering Kansas. The advertisement also stated that Sanburg Co. had an office at McCool Junction, Nebraska. Among the names appearing in the advertisement was "Ron Sanburg." In 1982, substantially the same advertisement appeared in the directory, with the exception of the addition of Darrell Strickler's name and information that Sanburg Co. had a "National WATS" line in addition to a "Kansas WATS" and a toll-free number for "bordering states." That advertisement again appeared in the grain directory in 1983 and 1984. It appears that Sanburg Co. is a Kansas corporation and had its office at Overland Park and, later, Lenexa, in the State of Kansas. McGowan, a Nebraska corporation, was a member of the Nebraska Grain & Feed Dealers Association and operated a commercial grain elevator in Louisville, Nebraska.
Sometimes McGowan's representatives placed telephone calls to Sanburg Co. about prospects of a grain sale. On other occasions, Sanburg Co. telephoned McGowan and inquired whether McGowan was interested in selling grain. Regardless of the source of telephone calls about grain sales, if McGowan had available grain Sanburg Co. mailed duplicate original contracts to McGowan. Pursuant to the established practice between Sanburg Co. and McGowan, one of the mailed duplicate contracts, which had been signed by Sanburg Co., was retained by McGowan, while the other duplicate, which was unsigned by Sanburg Co., was signed by McGowan and mailed to Sanburg Co.'s office in Kansas. Every delivery of contracted grain took place at McGowan's elevator, where the grain was loaded on Sanburg Co.'s trucks.
Between July 18, 1983, and May 21, 1984, McGowan had 29 separate written contracts for sale of grain to Sanburg Co. Of these 29 contracts, Ron Sanburg, a Kansas resident for approximately 14 years before the McGowan contracts, negotiated and signed 9 contracts on behalf of Sanburg Co. for purchase of 57,582 bushels of McGowan's grain, including 3 contracts during February and March 1984. In September 1983, and during March, April, and May of 1984, Darrell Strickler, who was a Kansas resident employed by Sanburg Co. as a "merchandiser," negotiated and signed four contracts regarding Sanburg Co.'s purchase of 54,000 bushels of grain from McGowan. The last contract obtained by Sanburg Co. through Strickler was dated May 21, 1984, and involved 20,000 bushels of McGowan corn at a price of $3.40 per bushel. All contracted grain was delivered to Sanburg Co.
Throughout Sanburg Co.'s transactions with McGowan, Sanburg Co. did not have a Nebraska grain dealer's license, and neither Ron Sanburg nor Strickler, as employees of Sanburg Co., was licensed by the State of Nebraska as required by Neb.Rev.Stat. § 88-518 (Supp.1983), which in part provided:
Any person, firm, cooperative, or corporation, ... who shall purchase grain from the owner thereof for the purpose of resale, or who shall purchase and transport grain or who shall transport grain in or out of this state for resale, or who shall act as employee or agent of a seller or purchaser of grain, ... shall first procure a license therefor from the Public Service Commission before transacting such business.... Any person violating the provisions of this section shall be guilty of a Class II misdemeanor, and in addition shall be liable for any damages suffered by any person as a result of such violation.
Cf. Neb.Rev.Stat. §§ 75-901 to 75-909 (Reissue 1986) ("Grain Buyer Act").
The records of the Nebraska Public Service Commission, which issues licenses to grain buyers and agents or employees of grain buyers, contained verified documents reflecting that Ronald D. Sanburg (Ron Sanburg) is the president of Sanburg Co. (In his affidavit, Ron Sanburg acknowledged his presidency of Sanburg Co. from September 1980 to September 13, 1984.) The Public Service Commission records also reflect that the only other officer for Sanburg Co. is Nancy Sanburg, secretary of the corporation. According to the return of summons by the Kansas sheriff, Nancy Sanburg is the wife of Ron Sanburg.
In September 1984, Sanburg Co. was "put into bankruptcy ... in the United States Bankruptcy Court for the District of Kansas." Because Sanburg Co. failed to pay for the McGowan corn purchased and delivered on May 21, 1984, McGowan, on November 30, 1984, filed suit against Ronald D. Sanburg and Strickler in the district court for Douglas County, alleging the May 21 contract with Sanburg Co.; agency or employment of Ron Sanburg and Strickler in relation to Sanburg Co.; nonpayment for the purchased and delivered corn; nonexistence of a license for Sanburg Co., Ron Sanburg, and Strickler; and liability of Ron Sanburg and Strickler on account of § 88-518.
Nebraska's "long-arm statute," Neb.Rev.Stat. § 25-536 (Reissue 1985), states:
A court may exercise personal jurisdiction over a person:
(1) Who acts directly or by an agent, as to a cause of action arising from the person:
(a) Transacting any business in this state;
(b) Contracting to supply services or things in this state;
(c) Causing tortious injury by an act or omission in this state;
(d) Causing tortious injury in this state by an act or omission outside this state if the person regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;
(e) Having an interest in, using, or possessing real property in this state; or
(f) Contracting to insure any person, property, or risk located within this state at the time of contracting; or
(2) Who has any other contact with or maintains any other relation to this state to afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the United States.
A summons issued from the Nebraska court was served on Ron Sanburg and on Strickler in Kansas. Ron Sanburg and Strickler, neither of whom had ever been present in Nebraska regarding any McGowan contract, each filed separate special appearances, alleging: "Defendant has had no contact with [Nebraska] and does not maintain any relation with this State sufficient to afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the United States."
After a hearing on the special appearances, the court concluded there was
no jurisdiction over the persons of the individual defendants for the reason that the contacts of the corporate employer with the State of Nebraska may not be charged or imputed to the employees of that corporation who were acting in behalf of that corporation, unless the employees in their individual capacities were transacting business on their own accounts and not on behalf of the corporation. The evidence in this case indicates that the individual employees had no contacts with the State of Nebraska other than within the scope of their employment when they were acting in behalf of the employer. In the Court's view, the statute imposing a derivative liability on the unlicensed and unbonded employees of the corporation does not create a threshhold [sic] for long-arm jurisdiction of ...
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