Welt Industries, Inc. v. Weingart, Inc., Civ. A. No. 87-CV-279.

• Decision Date: 04 May 1987
• Docket Number: Civ. A. No. 87-CV-279.
• Citation: 660 F. Supp. 424
• Parties: WELT INDUSTRIES, INC., Plaintiff, v. WEINGART, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

660 F. Supp. 424

WELT INDUSTRIES, INC., Plaintiff, v. WEINGART, INC., Defendant.

Civ. A. No. 87-CV-279.

United States District Court, N.D. Georgia, Atlanta Division.

May 4, 1987.

Robert Wayne Scholz, Dietrick, Evans & Scholz, Atlanta, Ga., for plaintiff.

Steven Somers Greene, Constangy, Brooks & Smith, Atlanta, Ga., and James D. Streit, Gallucci, Hopkins & Theisen, Ft. Wayne, Ind., for defendant.

ORDER

SHOOB, District Judge.

Defendant removed this breach of contract action from state court pursuant to 28 U.S.C. § 1446(e) and now moves to dismiss for lack of personal jurisdiction or to transfer venue. Plaintiff objects to the removal of the action. For the reasons stated below, the Court denies plaintiff's motion to remand¹ and defers ruling on defendant's motion to dismiss or transfer.

In its motion for remand plaintiff states that defendant's attorney filed the petition for removal prior to being admitted to appear pro hac vice. Plaintiff requests that the action remain in state court until defendant's attorney is granted permission to appear pro hac vice. Such permission was granted by order of this Court dated March 5, 1987. Plaintiff's motion is therefore denied as moot.

Next, the Court addresses defendant's jurisdictional challenge. Plaintiff in this action is a Georgia Corporation that manufactures and markets portable tanning units. Defendant is an Indiana Corporation that has no office or agent in Georgia. Plaintiff asserts that in personam jurisdiction exists in this district because defendant's vice-president/general manager, Norman Golm, visited Atlanta to negotiate the terms and conditions of the purchase order that is the subject of this action. Defendant controverts plaintiff's allegation of jurisdiction and has submitted supporting affidavits. Mr. Golm states by affidavit that he visited Mr. and Mrs. Welt, principal officers of the plaintiff corporation, on his return trip from a vacation in North Carolina. He states that the purpose of the visit was to discuss his possible employment by plaintiff. There were no negotiations regarding the purchase of tanning units during his visit in Atlanta, he says. Defendant further asserts that its business dealings with plaintiff regarding the purchase order at issue in this action occurred by telephone and written correspondence between its office in Indiana and plaintiff's office in Hialeah, Florida (Affidavit of Richard Weingart).

Plaintiff must bear the burden of proving the existence of in personam jurisdiction. Under Fed.R.Civ.P. 12(b)(2) a defendant may move to dismiss the complaint for lack of personal jurisdiction prior to trial. If defendant controverts plaintiff's allegation of jurisdiction by making a factual showing, plaintiff must come forward with sufficient factual evidence to establish a prima facie showing of jurisdiction. National Egg Co. v. Bank Leumi le-Israel B.M., 504 F.Supp. 305 (N.D.Ga.1980). Further, the Court may, in its discretion, hold a preliminary hearing on the jurisdictional issue and "put plaintiff to his full proof," requiring plaintiff to establish the jurisdictional facts by a preponderance of the evidence. Data Disc, Inc. v. Systems Tech Assoc., Inc., ...