Wooldridge v. Beech Aircraft Corp.

• Decision Date: 13 November 1979
• Docket Number: No. 76-CV-0413-W-B-3,76-CV-0594-W-B-3.,76-CV-0413-W-B-3
• Citation: 479 F. Supp. 1041
• Parties: Mary S. WOOLDRIDGE et al., Plaintiffs, v. BEECH AIRCRAFT CORPORATION, Defendant. Mary S. WOOLDRIDGE et al., Plaintiffs, v. AVCO CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Missouri

479 F. Supp. 1041

Mary S. WOOLDRIDGE et al., Plaintiffs, v. BEECH AIRCRAFT CORPORATION, Defendant.

Mary S. WOOLDRIDGE et al., Plaintiffs, v. AVCO CORPORATION, Defendant.

Nos. 76-CV-0413-W-B-3, 76-CV-0594-W-B-3.

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

November 13, 1979.

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Marc S. Moller, Kreindler & Kreindler, New York City, for plaintiffs.

Douglas N. Ghertner, Field, Gentry, Benjamin & Robertson, Kansas City, Mo., for defendant Beech.

Thomas F. Fisher, Shughart, Thomson & Kilroy, Kansas City, Mo., for defendant Avco.

MEMORANDUM AND ORDER

RUSSELL G. CLARK, District Judge.

These wrongful death actions are before the Court upon various motions of the parties, which have been pending for some time. Since both actions were consolidated pursuant to the Court's order of November 4, 1977¹, the Court will pass upon the motions of all the parties in both actions, and in its discussion of those motions, will make reference to a single wrongful death action brought by the plaintiffs, Mary S. Wooldridge and Mary R. Wooldridge, against both defendants—Beech Aircraft Corporation (Beech) and Avco Corporation (Avco). Jurisdiction over the within action is conferred upon this Court by 28 U.S.C. § 1332 (1976), since plaintiff Mary S. Wooldridge is a resident and domiciliary of the State of Missouri; plaintiff Mary R. Wooldridge is a resident and domiciliary of the State of Texas; defendant Beech is a corporation organized under the laws of the State of Delaware, with its principal place of business in Wichita, Kansas; and defendant Avco is a corporation organized under the laws of the State of Delaware, with its principal place of business in the State of Connecticut. Damages are sought for the allegedly wrongful death of Dr. Bart F. Wooldridge, deceased spouse of plaintiff Mary S. Wooldridge and son of plaintiff Mary R. Wooldridge, who suffered fatal injuries on or about September 26, 1974 when an airplane which he war ferrying from Wichita, Kansas to Sydney, Australia caught fire while in flight and crashed near Rahimyar Khan, Pakistan. The aircraft was allegedly manufactured by defendant Beech at its Wichita plant, and the engines installed in the craft were allegedly manufactured by defendant Avco.

Defendant Beech has moved for dismissal of the claims against it under Rule 12(b)(2), Fed.R.Civ.P., arguing that this Court does not have jurisdiction over it because it is not present in Missouri, nor is reached by Missouri's long-arm statute, Mo.Rev.Stat. § 506.500 (Vernon's Cum.Supp.1979). Both defendants, Beech and Avco, have filed motions seeking a change of venue under 28 U.S.C. § 1404(a) (1976) from this district, the Western District of Missouri, to the District of Kansas where plaintiffs have brought an action against both defendants, which is in all material aspects identical to the present action, styled Mary S. Wooldridge v. Beech Aircraft Corporation and Avco Corporation (Lycoming Division), No. 76-190-CV (D.Kan., complaint filed Sept. 24, 1976). Defendant Avco has moved for leave of Court to amend its answer to assert the defense that plaintiffs' action is time-barred by Mo.Rev.Stat. § 516.190 (Vernon's Cum.Supp.1979), and, alternatively, the defense that plaintiff Mary S. Wooldridge has failed to timely appropriate this action as required by Mo.Rev.Stat. § 537.080 (Vernon's Cum.Supp.1979). Avco has also moved under Rule 56, Fed.R.Civ.P., for summary judgment in its favor on the basis that plaintiffs' claims against it are time-barred by § 516.190, supra. Finally, Avco has moved, pursuant to Rule 14, Fed.R. Civ.P., for leave to file a third-party complaint against Garrett Corporation, AiResearch Industrial Division (Garrett), a California corporation, which Avco contends will be required to indemnify it should plaintiffs obtain judgment against Avco because Garrett allegedly manufactured the "turbo charger" components which Avco used to construct the engines that were installed in the aircraft in which plaintiffs' decedent was killed.

I. PERSONAL JURISDICTION

Defendant Beech contends that this Court has no jurisdiction over it because it is neither physically present in Missouri, nor amenable to the jurisdiction of the state courts of Missouri. If Beech is not physically located within this judicial district or within the State of Missouri, valid service of process could only be made under the Missouri long-arm statute, Mo.Rev.Stat. §§ 506.500 and 506.510 (Vernon's Cum.Supp. 1979). See Rule 4(e) & (f), Fed.R.Civ.P.; C. Wright, Handbook of the Law of Federal Courts § 64, at 304-05 & § 65 (3d ed. 1976). Three distinct issues are presented in the consideration of this Court's jurisdiction over a defendant in a diversity case such as this: (1) would Missouri courts find that the defendant maintains an office, agent, or representative in Missouri, or although not present within the state, that it has engaged in activities which render it amenable to the jurisdiction of that state's courts under its long-arm statute; (2) assuming the defendant would not be found present, but would nevertheless, be reached by the long-arm statute, does that statute, as interpreted, satisfy the due process clause of the Fourteenth Amendment to the United States Constitution by premising its extension of jurisdiction over the defendant upon activities whereby the defendant made certain minimum contacts with Missouri sufficient to put the defendant on notice that it would be subject to the jurisdiction of Missouri courts and to make the exercise of personal jurisdiction reasonable; and (3) have plaintiffs properly effected service of process under Missouri statutes governing service of process? Both parties have submitted exhibits and affidavits, and the depositions of two corporate officers familiar with facts relevant to this issue have been taken.

(1) "Corporate Presence" In Missouri

Plaintiffs claim that Beech is "present" in Missouri because Beech is "doing business" in the state. They further contend that service of process has been validly made upon Beech, as specified in Rule 4(d)(3) and (7), Fed.R.Civ.P., and Mo.Rev.Stat. § 506.150 (Vernon's Cum.Supp.1979) by delivery of the summons and complaint to Paul Foster, assistant manager of Executive Beechcraft, Inc. (Executive), located in Kansas City, Missouri; Claudette Snelson, officer manager of Meisinger Beechcraft Sales, Inc., (Meisinger Sales) located in Chesterfield, Missouri; Mark W. Meising, VicePresident of Meisinger Beechcraft, Inc. (Meisinger Beechcraft), located in Kansas City, Missouri; and D. J. Van DenBeck, executive vice-president of the Mid-Coast Aviation Service (Mid-Coast) located at the Lambert-Field, St. Louis, Missouri airport. Each of these four companies is alleged to be a representative of Beech: Executive is described as a Beech "distributor"; Meisinger Sales is described as a Beech "agent"; Meisinger Beechcraft is described as a Beech "distributor"; and Mid-Coast is described as a Beech "service center".² Plaintiffs also effected service upon the Secretary of State of Missouri, James C. Kirkpatrick, under Mo.Rev.Stat. § 351.380(1) (Vernon's 1966), apparently as a precaution should none of the four companies served be deemed representatives of or agents authorized by Beech to receive service of process.³

Rule 4(d)(3), Fed.R.Civ.P., authorizes service upon a "foreign corporation . . by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process," and subdivision (d)(7) authorizes service "in the manner prescribed by the law of the state in which the district court is held." As subdivision (f) of Rule 4 provides, process is valid under subdivision (d)(3), barring certain exceptions inapplicable to this case, only if the defendant is physically present within the territorial limits of the state in which the district court is located. The general Missouri service statute which is applicable under subdivision (d)(7), is nearly identical to subdivision (d)(3) of Rule 4:

"Service shall be made . . .

(3) Upon a . . . foreign corporation . . . by delivering a copy of the summons and of the petition to an officer, partner, a managing or general agent, or by leaving the copies at any business office of the defendant with the person having charge thereof, or to any other agent authorized by appointment or required by law to receive service of process . . . ."

Mo.Rev.Stat. § 506.150(3) (Vernon's Cum. Supp.1979). The Missouri courts have construed this section to authorize service upon a foreign corporation, which, although not licensed to do business in Missouri, is in fact "doing business" in Missouri through an agent, representative, or corporate subdivision or office. See, e. g., Ponder v. Aamco Automatic Transmission, Inc., 536 S.W.2d 888, 890-91 & n. 2 (Mo.App.1976); Ward v. Cook United, Inc., 521 S.W.2d 461, 464-66 (Mo.App.1975); Racine v. Blackwood Brothers Quartet, Inc., 448 S.W.2d 922, 924 (Mo. App.1969).

Plaintiffs claim that Beech has been "doing business" in Missouri through the various companies listed above, which they characterize as distributors and agents of Beech. In support of this claim, plaintiffs have referred the Court to various Missouri cases, and federal cases involving Beech litigation in other jurisdictions. While the federal cases provide helpful guidance on the constitutional issue of due process, they cannot serve as authorities for the construction of the Missouri statute before this Court and will not be considered as such. In addition, the Missouri state cases and the federal cases decided by federal district courts in Missouri, which plaintiff has cited, either preceded the enactment in 1967 of Missouri's long-arm statute, Mo.Rev.Stat. §§ 506.500-506.520 (Vernon's Cum.Supp. 1979), or did not consider the relationship of the "doing...