Pucci v. BLATZ BREWING COMPANY
| Decision Date | 17 January 1955 |
| Docket Number | No. 9361.,9361. |
| Citation | 127 F. Supp. 747 |
| Parties | Zeno PUCCI, Plaintiff, v. BLATZ BREWING COMPANY, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Thomas A. Sweeney (of Hogsett, Houts & James), Kansas City, Mo., for plaintiff.
Douglas Stripp (of Watson, Ess, Marshall & Enggas), Kansas City, Mo., for defendant.
This is an action for damages for alleged failure to release a paid deed of trust, on Missouri real estate, as required by Section 443.130, V.A.M.S.
The defendant is a corporation, existing under the laws of the state of Wisconsin. For a long time prior to August 22, 1950, it was licensed to do, and did, business in Missouri, but, on that date, it applied for, and received, a certificate of withdrawal of its license and right to do business in Missouri, which certificate was promptly recorded, as required by law. It contends that it has not since done any local business in Missouri.
This suit was instituted in the Circuit Court of Jackson County, Missouri, on September 1, 1954, and, on that date, summons was issued to the sheriff, who made the following return of service thereon:
"I hereby certify that I have executed the within writ in the County of Jackson, State of Missouri, on the 2nd day of September, 1954, by delivering a copy of this writ, together with a copy of the petition as furnished by the Clerk, to Rocco Bunimo as Vice-President of the within named defendant corporation, Blatz Brewing Company."
Thereafter, defendant timely removed the cause to this court, upon the ground of diversity and requisite jurisdictional amount, and then filed herein its motion, under Rule 12(b), Fed.Rules Civ.Proc. 28 U.S.C.A., to dismiss the action, or, in lieu thereof, to quash the return of service of summons, upon the ground that it is a Wisconsin corporation, not authorized to do, or doing, any local business in Missouri, and, therefore, jurisdiction over its person was not acquired by the service of process upon its vice-president, Rocco Bunimo, who, when served, was only temporarily in Missouri, as a guest in a Kansas City hotel.
In support of the motion, defendant has filed an affidavit of its assistant secretary, and a verified copy of an existing contract with the Kansas City, Missouri, independent dealer in "Blatz Beer" (McKissick), covering the matter of his purchases, from defendant, and his resale to his retailer customers, of that product. Plaintiff, in opposition to the motion, relies, factually, upon defendant's answers to certain interrogatories propounded by plaintiff, and upon certain portions of the deposition of the dealer, McKissick.
The relevant process statute is Section 506.150(3), V.A.M.S., and which, so far as pertinent, is very brief, and says:
As stated, the service here was not by leaving copies of the process at any business office of defendant with the person in charge thereof—for defendant has no business office in Missouri—, but, rather, was by delivering copies of the process to one of defendant's vice-presidents, at his hotel, while he was temporarily in Missouri. Hence, the validity of the service depends upon whether defendant was, at the time, "doing business" in Missouri, or was having such "continuous and systematic contacts" with, or within, that state as to make it amenable to suit, in an action in personam, therein upon such process and service.
From the material before me I find that since its withdrawal from Missouri, on August 22, 1950, defendant has not maintained any office, officer, or place of business, in Missouri, nor has it had therein any warehouse or stock of merchandise, nor has it had or maintained in Missouri any "agent", or salesman with authority...
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