Milky Whey, Inc. v. Dairy Partners, LLC, 342 P.3d 13

Background

Milky Whey, a Montana dairy broker, purchased Swiss Trim from Dairy Partners (Minnesota); Milky Whey prepaid $12,500 and picked up the goods in Utah where they were found moldy.
Milky Whey and Dairy Partners completed nine prior purchase orders (2010–2013) totaling over $181,000, with many sales initiated by Dairy Partners contacting Milky Whey in Montana.
Milky Whey sued in Montana for breach of contract, breach of warranty, unjust enrichment, and breach of obligation to pay.
Dairy Partners was served in Minnesota, filed a notice of appearance, then moved to dismiss for lack of personal jurisdiction before filing a responsive pleading; the District Court granted dismissal.
The Montana Supreme Court affirmed, holding (1) the notice of appearance did not waive the jurisdictional defense, and (2) Montana’s long-arm statute did not confer specific or general jurisdiction over Dairy Partners.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Waiver by notice of appearance	Dairy Whey: Dairy Partners waived personal-jurisdiction defense by not asserting it in its initial notice of appearance.	Dairy Partners: A notice of appearance is not a pleading; Rule 12 permits a motion to dismiss prior to responsive pleading, so defense was timely.	Notice of appearance did not waive the defense; dismissal motion was timely.
General jurisdiction	Milky Whey (arg., at oral argument): Dairy Partners’ multiple transactions with Milky Whey and contacts establish systematic and continuous activities subjecting it to general jurisdiction.	Dairy Partners: No offices or continuous activities in Montana; did not enter Montana or perform services here.	Court: No general jurisdiction—contacts were not substantial, systematic, or continuous.
Specific jurisdiction under long-arm §4(b)(1)(B) (tort accrual in Montana)	Milky Whey: Dairy Partners’ refusal to reimburse and alleged warranty breaches give rise to torts accruing in Montana.	Dairy Partners: Wrongful acts and performance occurred outside Montana; duties arose from contract, not independent legal duties.	Court: Tort claims did not accrue in Montana; statutory/contractual duties do not create tort accrual in Montana.
Specific jurisdiction under long-arm §4(b)(1)(A) (transaction of business in Montana)	Milky Whey: Repeated prior transactions and communications with a Montana business amount to transacting business here.	Dairy Partners: This transaction was initiated and performed outside Montana (payment to MN, delivery to UT); prior contacts alone insufficient.	Court: Transaction giving rise to suit occurred outside Montana; prior communications/transactions insufficient to establish purposeful availment.

Key Cases Cited

International Shoe Co. v. Washington, 326 U.S. 310 (establishes standard for personal jurisdiction—substantial, continuous, systematic contacts)
Cimmaron Corp. v. Smith, 2003 MT 73, 315 Mont. 1, 67 P.3d 258 (contacts limited to contracts performed out-of-state do not support jurisdiction)
Grizzly Sec. Armored Express, Inc. v. Armored Grp., LLC, 2011 MT 128, 360 Mont. 517, 255 P.3d 781 (prior course of dealings can be significant where defendant purposefully interjects into Montana)
Edsall Constr. Co. v. Robinson, 246 Mont. 378, 804 P.2d 1039 (mere contract with a Montana resident insufficient for jurisdiction when performance occurs elsewhere)
Simmons v. State, 206 Mont. 264, 670 P.2d 1372 (interstate communications alone do not establish jurisdiction)
Spectrum Pool Prods., Inc. v. MW Golden, Inc., 1998 MT 283, 291 Mont. 439, 968 P.2d 728 (nonresident’s negotiated, in-depth dealings and performance connected to Montana supported jurisdiction)
B.T. Metal Works v. United Die & Mfg. Co., 2004 MT 286, 323 Mont. 308, 100 P.3d 127 (repeated shipments into forum and customized manufacturing supported jurisdiction)
Walden v. Fiore, 134 S. Ct. 1115 (suit-related conduct must create a substantial connection with the forum)