Roth Grading, Inc. v. Martin Bros. Constr.
| Decision Date | 29 May 2018 |
| Docket Number | No. A-17-097.,A-17-097. |
| Citation | 916 N.W.2d 70,25 Neb.App. 928 |
| Parties | ROTH GRADING, INC., doing business as Impact Roller Technology, a Nebraska corporation, appellant, v. MARTIN BROTHERS CONSTRUCTION, a California corporation, appellee. |
| Court | Nebraska Court of Appeals |
Aaron F. Smeall, of Smith, Slusky, Pohren & Rogers, L.L.P., Omaha, for appellant.
Patrick T. Vint and Todd W. Weidemann, of Woods & Aitken, L.L.P., Omaha, for appellee.
Roth Grading, Inc., a Nebraska corporation doing business as Impact Roller Technology (IRT), agreed to sell equipment to Martin Brothers Construction (Martin Brothers), a California corporation. After Martin Brothers refused to take delivery of the equipment, IRT brought a breach of contract action against Martin Brothers in the district court for Cass County. IRT appeals from the district court’s dismissal of the action for lack of personal jurisdiction. We affirm.
Martin Brothers’ motion to dismiss for lack of personal jurisdiction was considered on the pleadings filed and the affidavits submitted to the district court; they provide the following facts: IRT is a Nebraska corporation, with a principal place of business in Plattsmouth, Nebraska. Martin Brothers is a California corporation, with a principal place of business in Sacramento, California. IRT’s principal product is the "Impactor," a heavy piece of equipment which employs a large rotating drum to "break concrete, perform soil compaction, and perform similar tasks for contractors in the construction and mining industries." On July 29, 2016, IRT received an information request on its website from Felipe Martin, the president of Martin Brothers.
Scott Roth, the president of IRT, spoke with Martin via telephone on August 1, 2016. Martin informed Roth he was interested in purchasing one of IRT’s Impactors, but wanted to make sure it could be on site for a project by August 17. Roth assured Martin an Impactor was available and could be delivered. Roth and Martin discussed having a "price quote" emailed to Martin Brothers, and Roth emailed a quote for $143,400 that same day. This was a discounted purchase price of $138,600, plus $4,800 for shipping from Plattsmouth to Sacramento.
Subsequent conversations took place, but specific dates are not provided. In one conversation, Martin informed Roth he wanted to get a freight price from his own trucking company to see if he could save on the $4,800 shipping price quoted. Greg Aguilera, equipment manager for Martin Brothers, called Roth and asked for the shipping specifications. In a subsequent call, Aguilera informed Roth that Martin Brothers could save $1,000 on shipping with their own trucking company. The parties eventually agreed that IRT would ship the Impactor, but would discount the shipping cost by $1,000. Aguilera and Roth also discussed Martin Brothers’ obtaining a tractor to pull the Impactor. In a subsequent call, Aguilera informed Roth that he had found a tractor that could be rented for $2,500 per month and that "he was happy with that price." Aguilera also advised that Martin Brothers had an equipment leasing company that might be able to rent out the Impactor to other parties in the future.
On August 5, 2016, Roth emailed to Martin Brothers a "Contract Purchase Order," which reflected the $1,000 shipping discount, and was signed by Roth on that date. A project engineer at Martin Brothers subsequently called Roth and advised him that Martin Brothers was signing the purchase contract and that he wanted to know if it could be emailed back to the same email address that was used to send it. Roth advised the project engineer that emailing the signed purchase contract back to the same email address would be fine, and he thanked him for the business.
On August 9, 2016, the project engineer emailed back the purchase contract, signed by Martin as president of Martin Brothers and hand dated August 9. The email stated, " " The ".pdf file" attached to the August 9 email contained the "IRT Contract Purchase Order" signed by both parties. It also included, after the signed purchase contract, an unsigned and untitled document. The email did not reference the document that appeared after the signed purchase contract.
While IRT was making preparations to ship the Impactor, Roth received a call from Martin on August 16, 2016, in which Martin stated that "Martin Brothers no longer wanted an Impactor, citing some difficulties with their current project." Roth advised Martin that they already had a signed contract. On August 22, Roth sent an email to Martin "expressing concern that Martin Brothers was refusing to take delivery, and advising that IRT would considerthat a breach of the parties’ contract." Martin responded by email the next day, claiming that "they had never received a copy of the purchase order executed by Roth" and that "pursuant to their prior conversation, they had ‘cancelled the order.’ " A few hours later, Martin sent another email stating that "although he did now see that Roth had signed the purchase order, that there was a provision in the (unsigned) Martin Brothers document appended to the .pdf file with the signed contract that allowed Martin Brothers to ‘terminate’ the purchase because the Impactor had never been shipped." Roth emailed Martin Brothers stating that IRT had never agreed to any cancellation of the order and "would consider that a breach of contract." In-house counsel for Martin Brothers subsequently sent Roth a letter informing him that Martin Brothers was refusing to take delivery and that it was permitted to do so pursuant to the terms of the parties’ agreement.
IRT filed a complaint against Martin Brothers on October 6, 2016, alleging breach of contract. On November 10, Martin Brothers filed a motion to dismiss for lack of personal jurisdiction pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(2). Martin Brothers alleged the following: It was a California corporation "with no continued or systemic presence in Nebraska"; it had no continuing relationships or obligations with citizens of Nebraska which would make it subject to regulation and sanction by Nebraska; the transaction, to its knowledge, was the only transaction Martin Brothers conducted with a Nebraska resident; its sole contact with Nebraska was contacting IRT to purchase a piece of equipment that was already built; and therefore, its brief and cursory contact is "insufficient to meet the standard of minimum contacts necessary so as not to offend traditional notions of fair play and substantial justice necessary to preserve the constitutional right to due process."
Counsel appeared in court on November 28, 2016. Martin Brothers offered, and the court received, exhibit 1, the affidavit of the general counsel for the corporation. He averred that Martin Brothers does not hold, nor ever sought, a license to conduct business in Nebraska; owns no real estate, operates no office, and maintains no physical presence in Nebraska; and is engaged in no sustained or ongoing business transactions in Nebraska. IRT offered, and the court received, exhibit 2, the affidavit of Roth. Roth’s affidavit contained the allegations set forth in its complaint, with the facts as noted above.
The district court sustained Martin Brothers’ motion to dismiss in an order entered on December 30, 2016. The court concluded that "[m]erely contracting with a resident of Nebraska is insufficient to provide the requisite contact to confer personal jurisdiction." The court further stated that "there is no underlying business relationship, only a series of communications resulting in a single transaction." The court found that it was "significant that Martin Brothers contacted IRT based on IRT’s internet advertising, and therefore IRT was the ‘aggressor’ in the transaction." The court found that "[t]here is no relationship between the parties other than the single contract involved in this case" and that the "only basis for jurisdiction is the series of communications from outside Nebraska based on IRT’s internet posting." Accordingly, the court found there was "an insufficient basis for exercise of the long-arm statute in this case." IRT appeals.
IRT assigns that the district court erred by granting Martin Brothers’ motion to dismiss.
When a trial court relies solely on pleadings and supporting affidavits in ruling on a motion to dismiss for want of personal jurisdiction, the plaintiff need only make a prima facie showing of jurisdiction to survive the motion. RFD-TV v. WildOpenWest Finance , 288 Neb. 318, 849 N.W.2d 107 (2014).
When reviewing an order dismissing a party from a case for lack of personal jurisdiction under § 6-1112(b)(2), an appellate court examines the question of whether the nonmoving party has established a prima facie case of personal jurisdiction de novo. Nimmer v. Giga Entertainment Media , 298 Neb. 630, 905 N.W.2d 523 (2018). In reviewing the grant of a motion to dismiss, an appellate court must look at the facts in the light most favorable to the nonmoving party and resolve all factual conflicts in favor of that party. Id.
IRT argues the district court erred by granting Martin Brothers’ motion to dismiss for lack of personal jurisdiction. We begin our analysis with the analytical framework for personal jurisdiction set forth in Hand Cut Steaks Acquisitions v. Lone Star Steakhouse , 298 Neb. 705, 905 N.W.2d 644 (2018). The Nebraska Supreme Court stated:
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Roth Grading, Inc. v. Martin Bros. Constr.
...jurisdiction over Martin, and Martin successfully defended the resulting dismissal on appeal. See Roth Grading, Inc. v. Martin Bros. Constr. , 25 Neb.App. 928, 916 N.W.2d 70, 81–82 (2018). Roth then sued Martin in the United States District Court for the District of Nebraska, which transfer......
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Roth Grading, Inc. v. Martin Bros. Constr., No. 2:20-cv-00336-KJM-CKD
...in Nebraska state court, but that court determined it lacked personal jurisdiction over Martin. See Roth Grading, Inc. v. Martin Bros. Constr. , 25 Neb.App. 928, 916 N.W.2d 70, 81–82 (2018). Roth filed its federal complaint here fifteen months after the Nebraska litigation became final. See......
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