Nollman v. Armstrong World Industries, Inc.

• Decision Date: 06 March 1985
• Docket Number: No. 84-2339C(1).,84-2339C(1).
• Citation: 603 F. Supp. 1168
• Parties: Rod E. NOLLMAN d/b/a R.E. Nollman Company, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, INC., Lloyd Manufacturing Co., Inc., and Trans Technology Corporation, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

603 F. Supp. 1168

Rod E. NOLLMAN d/b/a R.E. Nollman Company, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, INC., Lloyd Manufacturing Co., Inc., and Trans Technology Corporation, Defendants.

No. 84-2339C(1).

United States District Court, E.D. Missouri, E.D.

March 6, 1985.

Robert J. Albair, Clayton, Mo., for plaintiff.

Barry A. Short, St. Louis, Mo., for defendant Armstrong World Industries, Inc.

Michael B. McKinnis, Judy K. Raker, St. Louis, Mo., for defendants Lloyd Mfg. Co., Inc. and Trans Technology Corp.

MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court, on the following motions: 1) plaintiff's motion to compel discovery; 2) defendant Lloyd Manufacturing Company, Inc.'s (hereinafter "Lloyd") motion to dismiss Counts III and IV of plaintiff's complaint; and 3) defendant Transtechnology Corporation's (hereinafter "Transtechnology") motion to dismiss for lack of personal jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted.

Plaintiff's cause of action arises out of his contract with Lloyd to act as a sales representative for Lloyd in the States of Missouri, Kansas and portions of Southern Illinois. The contract was entered into on or about March 30, 1981, and was terminated by Lloyd effective April 1, 1984. Plaintiff alleges that after termination of his contract, Lloyd entered into a contract with defendant Armstrong World Industries, Inc., (hereinafter "Armstrong"). Lloyd is a wholly-owned subsidiary of Transtechnology.

Plaintiff's complaint consists of four separate counts. Count I is against Armstrong and Transtechnology and alleges that they tortiously interfered with plaintiff's contract with Lloyd. Count II is against Lloyd and alleges that it breached its contract with plaintiff. Count III is against Armstrong, Lloyd and Transtechnology, and alleges that they engaged in a civil conspiracy to breach the contract between plaintiff and Lloyd. Count IV is also against Armstrong, Lloyd and Transtechnology, and is essentially a prayer for punitive damages for the torts alleged in Counts I and III.

I. PLAINTIFF'S MOTION TO COMPEL

Plaintiff moves to compel Lloyd and Transtechnology to respond to plaintiff's interrogatories and requests for production of documents. Said defendants' response to plaintiff's motion stated that said defendants shall on or before February 25, 1985, respond to plaintiff's interrogatories and requests for production of documents. Accordingly, plaintiff's motion is denied as moot, subject to said defendant's compliance with their representations.

II. TRANSTECHNOLOGY'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

Defendant Transtechnology asserts two alternative bases for dismissing it from this action. First, it argues that this Court lacks personal jurisdiction over it. Second, it argues that Counts I, III and IV of plaintiff's complaint, which are the only counts in which Transtechnology is named as a defendant, fail to state a claim upon which relief can be granted. Because this Court holds that it lacks in personam jurisdiction over Transtechnology, it is unnecessary to reach Transtechnology's arguments concerning the sufficiency of plaintiff's complaint.

In passing on a motion to dismiss for lack of jurisdiction over a non-resident, a federal diversity court is required to engage in a two-step inquiry: first, whether defendant committed one of the acts enumerated in the long-arm statute; and second, whether the exercise of personal jurisdiction over defendant violates the due process clause of the fourteenth amendment. The Land-O-Nod Company v. Bassett Furniture Industries, Inc., 708 F.2d 1338 (8th Cir.1983); Scullin Steel Co. v. National Railway Utilization Corp., 676 F.2d 309, 312 (8th Cir.1982). Plaintiff, the party that is seeking to invoke federal jurisdiction, has the burden of establishing that jurisdiction exists, and this burden may not be shifted to the party challenging the jurisdiction. Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 653 (8th Cir. 1982). While the facts are viewed in the light most favorable to the plaintiffs, "there must nonetheless be some evidence upon which a prima facie showing of jurisdiction may be found to exist...." Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir.1977) (citations omitted). See also Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977) (plaintiff need only make a prima facie showing of jurisdictional facts through submission of affidavits plus discovery materials); Greycas, Inc. v. Anderson, 584 F.Supp. 894, 895-96 (E.D.Mo.1984); 4 Wright & Miller, Federal Practice and Procedure: Civil § 1068 at 250 (1969).

Missouri's Long-Arm statute provides:

1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any such acts:

(1) The transaction of any business within this state;

(2) The making of any contract within this state;

(3) The commission of a tortious act within this state;

(4) The ownership, use, or possession of any real estate situated in this state;

(5) The contracting to insure any person, property or risk located within this state at the time of contracting.

2. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

§ 506.500, R.S.Mo. (1982).

The due process clause of the fourteenth amendment places limits upon the power of a court to exercise personal jurisdiction over a non-resident defendant. The due process clause requires that a defendant 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." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Land-O-Nod, 708 F.2d at 1340. Accord World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). "In judging minimum contacts, a court properly focuses on `the relationship among the defendant, the forum, and the litigation.'" Calder v. Jones, ___ U.S. ___, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984) (citations omitted). See also Helicopteros Nacionales de Colombia S.A. v. Hall, ___ U.S. ___, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). The defendant's contacts with the forum state must be purposeful and such that defendant "should reasonably anticipate being haled into court there." World Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567. See also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958).

In this circuit, the due process standard has devolved into a consideration of five factors:

(1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties.

Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir. 1977). See Land-O-Nod, 708 F.2d at 1340. The first three factors are of primary importance and the last two are of secondary importance. Id.

In the case at bar, plaintiff contends that Transtechnology was subject to service of process under Missouri's long-arm statute, because Transtechnology transacted business within this State, made contracts within this State, and committed a tort within this State. According to affidavits submitted on behalf of Transtechnology, it has one customer in Missouri which customer represents 2.5% of its national sales. In addition, during the period from September 15, 1981, through August 17, 1984, Transtechnology maintained a sales representative in Missouri, whose sole function was to service Transtechnology's single Missouri customer. However, to the extent that these contacts constituted transacting business within Missouri or making contracts within Missouri, the instant cause of action does not arise from the "doing" of said acts. Scullin Steel Company v. National Railway Utilization Corporation, 676 F.2d 309, 312 (8th Cir.1982); State ex rel. Newport v. Wiesman, 627 S.W.2d 874, 877 (Mo.1982). Accordingly, Transtechnology was not subject to service of process under Missouri's long-arm statute by reason of § 506.500-1.(1) and (2), R.S.Mo. (1982), and the only way that Transtechnology was subject to long-arm service of process was if Transtechnology committed a tort within Missouri.

The torts which Transtechnology allegedly committed in Missouri, are tortious interference with contract and a civil conspiracy. Recently, this Court discussed the approach that should be taken in addressing a motion to dismiss for lack of personal jurisdiction where the claimed contact is an intentional tort, as follows:

If a non-resident defendant commits an intentional tort in Missouri, it is clear that this single contact is sufficient to meet the due process standard. Block Industries v. DHJ Industries, Inc., 495 F.2d 256, 259 (8th Cir. 1974); Elkhart Engineering corp. v. Dornier Werke, 343 F.2d 861 (5th Cir. 1965); 4 Wright & Miller, Federal Practice and Procedure: Civil § 1069 at 257 (1969). Because the jurisdictional facts, where jurisdiction is based upon a single tort, are identical to the merits of the claim, plaintiffs must make a prima facie showing that defendant has in fact committed the tort alleged in the

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