TOWNE RLTY., INC. v. Bishop Enterprises Inc.
Decision Date | 15 June 1977 |
Docket Number | Civ. A. No. 76-C-329. |
Citation | 432 F. Supp. 691 |
Parties | TOWNE REALTY, INC., Woerfel Corp. & Miller, Waltz, Diedrich Architects & Associates, Inc., d/b/a TMW Joint Venture, Plaintiffs, v. BISHOP ENTERPRISES INC., and Precedents Inc., and Tom L. Bishop, Defendants. |
Court | U.S. District Court — Eastern District of Wisconsin |
Perry H. Friesler, Milwaukee, Wis., for plaintiffs.
Steven E. Keane, Gilbert W. Church, and Jon P. Christiansen, Milwaukee, Wis., for defendants Bishop Enterprises Inc. and Tom L. Bishop.
DECISION AND ORDER
The plaintiffs, a Wisconsin joint venture, commenced this action against Bishop Enterprises Inc., a Texas corporation; Tom L. Bishop, a resident of Texas; and Precedents Inc., a California corporation, alleging breach of a subcontract for the furnishing and payment of all labor, materials, and equipment for completion of the carpentry work on a military housing project in Fort Riley, Kansas. The plaintiffs allege that jurisdiction lies under 28 U.S.C. § 1332. The defendants Bishop Enterprises Inc. and Tom L. Bishop have moved to dismiss the action for lack of personal jurisdiction, which motion is now before the Court. For the reasons hereinafter stated, the motion is granted.
The plaintiffs negotiated a contract with the Department of the Army for the construction of 1,001 housing units at Fort Riley, Kansas. On April 29, 1975, the plaintiff entered into a subcontract with the defendants Bishop Enterprises Inc. and Precedents Inc., whereby the defendants agreed to perform the necessary carpentry work on the housing units in consideration of the payment of $1,900,000. The subcontract further provided that the plaintiffs would provide the materials necessary for the defendants to complete their performance.
In an action in which jurisdiction is alleged on the basis of diversity of citizenship, this Court must look to the relevant state jurisdictional statute to determine if it does, in fact, have personal jurisdiction over the defendants. Kirchen v. Orth, 390 F.Supp. 313 (E.D.Wis.1975); Rule 4(e), F.R. Civ.P.
In opposition to the defendants' motion, the plaintiffs submitted the affidavit of James B. Young, the corporate assistant secretary of Towne Realty, Inc., one of the participants in the plaintiffs' joint venture. The Young affidavit sets forth the following jurisdictional facts. The subcontract entered into with the defendants resulted in part from conferences, contacts, and discussions had been the parties within the State of Wisconsin and a precontract "Memorandum of Understanding" signed by the parties in Wisconsin on April 28, 1975. As a result of the alleged breach, the plaintiffs contracted for the shipment of material and equipment from Wisconsin to Fort Riley, Kansas, and for additional labor from Wisconsin. Prior to the alleged breach, the plaintiffs advanced payment of approximately $875,000 to the defendants. Throughout the period in which the defendants worked on the housing units, the parties made numerous telephone contacts regarding the progress of the work. The plaintiffs contend that these facts give the court personal jurisdiction over the defendants under §§ 801.05(4), (5), (b), (c), (d) and (1)(d), Wis.Stats. (1976).
The plaintiffs' action is for breach of contract. Section 801.05(4) applies only to tortious injuries. Nagel v. Crain Cutter Co., 50 Wis.2d 638, 642, 184 N.W.2d 876, 878 (1971).
This section is also inapplicable to the instant action for it requires shipment from the state to the defendant. The only shipments of goods alleged to have originated in Wisconsin are those made after the defendants had terminated their performance under the subcontract, and these shipments are not alleged to have been made to the defendants. As to payments made by the plaintiffs to the defendants, they do not establish personal jurisdiction under this section because they are not "other things of value" within the meaning of the section. Nagel v. Crain Cutter Co., supra.
The plaintiffs contend that the court has personal jurisdiction over the defendants under § 801.05(5)(b) because the subcontract authorized the plaintiffs to perform services for the defendants in Wisconsin after the subcontract was terminated.
The Court does not accept the plaintiffs' contention. The subcontract was for the performance of carpentry services by the defendants in Fort Riley, Kansas. Any arrangements made by the plaintiffs after termination of the contract are necessarily unilateral in character, and such unilateral actions are insufficient to establish personal jurisdiction. See Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Also, the specific subcontract provision relied upon by the plaintiffs does not authorize the plaintiffs to perform services for the defendants in Wisconsin; rather, it permits the plaintiffs "to take the prosecution of the work out of the...
To continue reading
Request your trial-
Capitol Indem. Corp. v. Certain Lloyds Underwriters
...and the forum. Rather, the activity of defendant must have been both "continuous and systematic." Towne Realty Inc. v. Bishop Enterprises, Inc., 432 F.Supp. 691, 694 (E.D.Wis.1977); Traveler's Insurance Co. v. McArthur, 25 Wis.2d at 203, 130 N.W.2d 852. In the pleadings, defendant Syndicate......
-
Schartner v. Northwest Intern. Equipment Co., Inc.
...injuries. Wisconsin courts have held that this subsection applies only to tort actions. See, e.g., Towne Realty, Inc. v. Bishop Enterprises, Inc., 432 F.Supp. 691, 693 (E.D.Wis.1977); Nagel v. Crain Cutter Company, 50 Wis.2d 638, 642, 184 N.W.2d 876, 878 (1971). Therefore, although the comp......
-
Ranger Nationwide, Inc. v. Cook, s. 86-2542
...identical to section 48.193(2), we hold is required to satisfy the "substantial and not isolated" test. Towne Realty, Inc. v. Bishop Enters. Inc., 432 F.Supp. 691 (E.D.Wis.1977); Modern Cycle Sales, Inc. v. Burkhardt-Larsen Co., 395 F.Supp. 587 (E.D.Wis.1975). In Ladwig v. Truck Ins. Exch.,......
-
FL HUNTS, LLC v. Wheeler
...agreement would not constitute the "substantial" contacts contemplated by the long-arm statute. See Towne Realty, Inc. v. Bishop Enters., 432 F.Supp. 691, 694 (E.D.Wis.1977) (payment for services rendered outside Wisconsin do not support general personal jurisdiction), overruled on other gr......