Herman Theunissen and Ann Theunissen v. Sid Matthews D/B/A Matthews Lumber Transfer

NELSON, Before KRUPANSKY and CELEBREZZE, Judges, and Circuit Judge. Senior Circuit CELEBREZZE, Judge. Senior Circuit Theunissen, Herman and Ann Plaintiff- suit, Appellants personal injury ap- in this peal dismissal of their the district court’s of personal action for lack over Matthews, Defendant-Appellee Sid a Cana- appeal, the yard operator. dian On lumber challenge Theunissens do not the rules court; indeed, applied by law the district accurately stat- they concede that court governing law the issue. ed substantive reaching Rather, argue they jurisdiction, the question decision disputed improperly court decided below persons in the employed no upon the affidavits States fact based questions of U.S.; that it had no bank accounts or other for the reasons that agree, and alone. We here; paid no taxes accounts in the U.S. and remand. reverse and follow we U.S.; li- held no did not advertise in and engage in business the U.S. cense I. no here. It further conducted business (Theunissen Ap- or Theunissen Herman in Theunis- that the forklift stated involved Direct Transit truck driver for pellant) is a by a injury had manufactured sen’s been Lines, Inc., trucking company based in a company leased from a and was Canadian Michigan. On March Rapids, Grand that company. Matthews stated Canadian to Matthews Lumber he traveled tele- contacts the U.S. were a his sole Ontario, Windsor, Transfer, in Can- located yellow pages phone listing in the Detroit ada, destined pick up a load lumber post Royal office in directory and a box Westland, in Michi- Weyerhaeuser Co. Oak, Michigan.1 loading, his hand was gan. During the later, filed his Three weeks Theunissen “hi-lo”, forklift-type ma- by a crushed a motion, support opposition to Matthews’ by employee of Mat- operated chine an which he submitted his own affidavit thews Lumber. Montee, that of Ms. Doreen his attor- accident, Theunissen filed suit After the ney’s secretary. Theunissen’s affidavit re- County, in Kent against Matthews Lumber peated day on the of his he was Matthews re- Michigan, Circuit Court. working for Direct Transit and was sched- to the States Dis- the case United moved pick up delivery Wey- uled to lumber for Mi- for the Western District of trict Court that he erhaeuser. Theunissen stated Theunis- chigan and moved for dismissal. picked up lumber from Matthews for deliv- voluntarily the action and sen dismissed ery Matthews in the “to customers of ... Michi- it in the Eastern District of re-filed his Michigan several times before State against gan, casting it as an action Sid injury.” He also stated “on information (Matthews Appellee), a sole Matthews during and belief” that 1988 and first doing as Matthews proprietor Transit nine months of 1989 other Direct Lumber. picked up 186 loads of lumber from drivers 13, 1990, February again Matthews On request” for Matthews “at de- [Matthews’] to dismiss the action under Rule moved livery to “customers of ... Matthews locat- 12(b)(2) Proce- States, of the Federal Rules Civil [including ed in the United some] dure, asserting stated, the district court lacked Finally, Michigan.” he State him, and alterna- belief, over again information and that other tively, the doctrine of forum non Michigan trucking companies picked up under motion, support conveniens. In of this he delivery loads for to Matthews’ “custom- which, short, disclaimed Michigan filed an affidavit ers” in and elsewhere the Unit- any jurisdictional almost contact with the ed and that Matthews did conduct States Michigan. affidavit the United States. Doreen state of Matthews’ business within stated that she had that he was a citizen of Montee’s affidavit stated Canada—not States; business, post a called the office where Matthews’ U.S. of the United that his located, post was and that a proprietorship, wholly was located office box sole Windsor, Ontario, Canada; postal gave that it worker a address within property no locations or in the United Matthews.2 had dialed, rang called telephone 2. Ms. Montee’s affidavit states that "she 1. When number attempt through place in an in Wind the Oak Park Post Office to Matthews’ of business sor, post gain directory listing appeared about the office Ontario. The more information was type Defendant ...” and "... that she the smallest available and was not accom box of the panied by any advertising. copy postal at the Oak Park Post A told worker other listing a residence ad- Mr. Matthews had was attached to the affidavit. Matthews’ Office that Park, Michigan Majestic, post Royal Oak affidavit stated that the office box in dress of 23840 Brief, disputes opened Matthews Oak was receive mail from In his order to 48237.” apparent- suggesting expeditiously. "that Ms. Montee the United States assertion discovery. opposition, enough had had time for Then Appellant’s reply to hisWith reconsidered, offering the court a second submitted citizenship; you you if can cite me the case that think reasserted Canadian which Ontario, Windsor, approximates closest circumstances his address stated you long here that think allows for arm how Canada; in more detail and clarified If jurisdiction, I’ll look at it. that case Specifically, he stat- operates. his business give you I persuades me that should Transfer consist- Lumber that Matthews ed discovery, chance at I’ll do it. I want to and stor- reloading business lumber ed of a you rely prece- know the on for case that his customers yard. explained He age dent_ showing I think ... purchased who wood wholesalers were has made thus far is so minimal been arranged in Canada lumber from mills that it would an abuse to allow the unloading yard his for shipment for discovery. According to storage pending resale. and support citation to Theunissen offered no Matthews, found a the wholesaler when discovery. The court stated that it further wholesaler, Matthews, made not buyer, the little Theunissen mattered that believed delivery pick up the arrangements for employer, Matthews had hired his Direct yard to its Matthews’ the lumber from Transit, trucking company because the stated that Matthews ultimate destination. merely picked up lumber Windsor and own- company nor his assumed neither he brought it back to the United States. The any point during the lumber at ership of court concluded these facts did not estab- transactions; had no control that he the doing firm lish that the Canadian was busi- or where it ulti- it came from over where merely in ness in the United States and not had no contact mately shipped; was Canada. customers. the wholesalers’ with hearing, Appellant the filed the After explained that Additionally, Matthews Fowler, Eugene Direct Tran- affidavit of postal that the address the Manager. Administrative Fowler stat- sit’s residence be- gave as Matthews’ worker compu- company’s he searched the ed had girlfriend whom Mat- longed to a former they records and that con- terized business post open the office had asked to thews up picked Direct Transit had firmed him. stated that for box yard from Matthews’ be- loads of lumber arrangements for the made the girlfriend He fur- July April 1988 and tween apparently gave as a favor to him and box compa- stated that Matthews was ther his address rather than when her own shipments. ny’s on 10 of those customer ad- postal worker asked for a residence affidavit, cop- attached To this Theunissen records. Matthews stated dress for its eight shipping ies of the orders address and kept property he no at the that shipments. copies of these invoic- ten for some time. not dated the woman had record, es, in the are of included as exhibits however, quality; appears that Mat- poor 16, 1990, district court held April On may on two of thews’ name be found Matthews’ motion to dismiss. hearing eight documents. expressed the hearing, the court At personal jurisdic- 10, 1990, May that it was without the court entered a view On upon dismissing the facts the ac- tion over Matthews based and order memorandum parties’ personal jurisdiction affidavits. Theun- over presented tion for lack outset, the court requested time for further dis- defendant. At the issen then findings that investigate the exact nature of made a series of factual covery to re- initially largely adopted de- Matthews’ assertions business. The court Matthews’ his garding operation business. request stating that Theunissen nied this effect, appears post to have ly say telephoned the district court that she meant Oak, Royal Michigan, by crediting dispute not which serves office Oak resolved this factual Park, Michigan, post since of- [Matthews’] explanation second affi- Matthews offered in his Oak, Royal not Oak Park.” fice box is located davit. express finding Though an it did not make affidavit, establishing exists. Theunissen’s Concerning Acceptance Motors McNutt v. General court stated: 780, 785, 178, 189, 56 Corp., 298 U.S. S.Ct. that ordi- of fact statements contains [It] (1936); Am. L.Ed. accord that Matthews might establish narily Cohn, Greetings Corp. v. other contacts maintains Lumber Cir.1988); (6th v. Cromwell Weller and, perhaps, other the state of Cir.1974). Co., 504 F.2d Oil However, given Matthews’ states.... properly sup- Additionally, in the face of a explaining the uncontroverted dismissal, ported motion business, the finds his Court nature of must, pleadings his but may not stand on exist. do not that these contacts otherwise, specific set forth by affidavit “uncontro- “plausible” and favor jurisdic- has showing the court facts offered explanation Matthews verted” Weller, According- F.2d at 930. tion. affidavit, also discount- lower court ly, parties together submitted assertion, supported by the ed Theunissen’s support of their total of five affidavits affidavit, main- that Matthews Montee question before respective positions. The Park, Michigan. in Oak a residence tained largely upon the treatment this Court turns the Fowler judge found Finally, the district within to be accorded to these affidavits accompanying shipping or- its affidavit particular context of a dismissal motion Matthews’ account only ders confirmed 12(b)(2) on Rule of the Federal Rules based operations. While acknowl- his business Procedure. of Civil indicated Mat- Fowler affidavit edging the ship- paid Direct Transit for thews had properly sup a Presented with of lumber into the United ment of ten loads 12(b)(2) opposition, the ported motion and States, seemed dissatisfied the court procedural has three alternatives: it court explain why Mat- Appellant's failure to may upon the motion the affidavits decide ship- 242 paid not for the other thews had alone; may permit discovery in aid of it up picked had ments Direct Transit motion; deciding may or it conduct an Lumber Transfer. any apparent evidentiary hearing to resolve foregoing asserted con- Finding all of the Serras, 875 F.2d at questions. factual nonexistent, the court examined tacts 1214. The court has discretion to select listing post directory and the whether the follow, only method it will and will which sufficient together constituted office box reversed for abuse of discretion. personal juris- to sustain limited contacts Quality v. Di Michigan Nat. Bank See these It concluded diction over Matthews. 462, (6th Cir.1989); nette, Inc., 888 F.2d 466 they failed did not suffice because contacts However, Serras, F.2d at 1214. 875 purposefully had indicate that Matthews selected will affect the burden of method acting or privilege availed himself plaintiff must to avoid dis proof the bear Thus, consequence Michigan. in causing Serras, 1214. The 875 F.2d at missal. jurisdic- the court concluded was without case and the text of the order record appeal filed his tion. Theunissen notice indicate that the district court plainly 29, May protest 1990 to the denial of upon parties’ reached its decision based discovery motion for and the dismissal expressly Ap The court denied affidavits. his action. discovery request for further pellant’s testimony or other apparently received no II. hearing on the matter. evidence solely parties’ on the the court relies dismissal Where We first consider the decision, plaintiff pro affidavits to reach jurisdiction. The for lack of showing prima a must make guides the district cedural scheme which facie exists in order to 12(b)(2) personal jurisdiction motions disposing court of Rule Id.; Greetings Am. defeat dismissal. v. First Tennessee is well-settled. Serras Cir.1988); (6th (6th Ass’n., 1212, Corp., 839 F.2d at 1168-69 F.2d 1214 Bank Nat. 875 Gibbs, 439 Cir.1989). bears the burden Welsh denied, Cir.1980), 466; Serras, cert. 450 U.S. 875 F.2d at 1214. But cf. 1517, 67 L.Ed.2d 816 Chrysler Corp. S.Ct. Cory., v. Fedders F.2d (6th Cir.) (court referred to “un- The court’s treatment of motion controverted” affidavits of defendant alien 12(b)(2) under Rule mirrors some re corporation finding jurisdic absence of spects procedural given treatment to a contacts), denied, tional cert. 454 U.S. summary judgment motion for under Rule (1981). Yet, S.Ct. 70 L.Ed.2d 207 example, pleadings 56. For and affida instance, in each the court upon relied Mat 12(b)(2) vits on a motion are re submitted thews’ “uncontroverted” affidavit to find light ceived most favorable to the summarily alleged that the contact did not Serras, 1214; Welsh, plaintiff. 875 F.2d at doing so, In exist. the court erred. Dis sharp 631 F.2d at 439. contrast to sum only proper missal was if specific all of the however, mary judgment procedure, facts Theunissen alleged collectively failed disposing 12(b)(2) court of a motion does yrima state a case for weigh controverting not assertions of facie appropriate under the Serras, standards. Because party seeking dismissal. 1214; erroneously district court

F.2d at Midland held the al accord Marine Bank, Miller, leged exist, business contacts did N.A. v. not it did (2nd Cir.1981). subject adopted analysis. We this rule not them to this There fore, prevent in order to non-resident de Serras we now do so. regularly avoiding personal

fendants from jurisdiction simply by filing an sitting federal district court A facts, denying jurisdictional Ap- all diversity apply as the must the law of the forum Id.; pellee has done case before us. state may to determine whether it exercise Disc, accord Systems Data Inc. v. Tech person over the of a non-resi Associates, Inc., 1280, nology 557 F.2d Gibbs, dent defendant. Welsh v. 631 F.2d (9th Cir.1977). Serras, 436, (6th 1285 we stated Cir.1980), denied, 439 cert. 450 alleges that the defendant who facts to 981, 1517, U.S. 101 67 S.Ct. L.Ed.2d 816 jurisdiction defeat has recourse to the (1981); In-Flight Corp. Devices v. Van discretionary authority court’s to hold an Air, 220, Dusen Inc. 466 F.2d 224 evidentiary hearing disputes plain if he the Cir.1972). However, constitutional con Serras, tiff’s factual assertions. 875 F.2d process application cerns of due limit the of at 1214. Welsh, this state law. 631 F.2d at 439. opinion appeal In the and on order us, acknowledged

before the district court A. that Theunissen’s affidavit “contain[ed] statements of fact ordinarily might that begin by examining We the rele establish that Matthews Lumber maintains considerations, recogniz vant Due Process [jurisdictional with the state of contacts] ing type that a defect of this would fore Michigan....” These statements included personal jurisdiction close the exercise of allegations the that the defendant entered properly provision even where a construed carriage contracts for with Theunissen’s long-arm statute would otherwise employer trucking and other firms the permit inquiry The relevant it. is whether States, United maintained business con the facts of the case demonstrate that the companies tacts with U.S. that received possesses non-resident defendant such min yard, wood from his and had a residence in imum contacts with the forum state that personal juris that would sustain comport the exercise of diction. play with “traditional fair notions of justice.”

Deciding upon the substantial International issue the affidavits as Shoe did, 310, judge obligated Washington, he the district Co. v. State 326 U.S. was 154, (1945); allegations examine each of these factual 66 S.Ct. 90 L.Ed. 95 accord Indus., notwithstanding contrary Matthews’ asser- Southern Machine Co. v. Mohasco Bank, 374, (6th Cir.1968). tions. Nat. 888 at 401 F.2d F.2d 380 Histori- 1460 472, Mich.App. 81 265 Holsey, v. three criteria Clavenna applied

cally, we (1978); Amburn v. Ha- 378 accord N.W.2d this determination: guide Ltd., Industries, F.Supp. 423 rold Forster purposefully First, must defendant the Shessel, (E.D.Mich.1976); 415 Price v. acting in privilege the himself of avail (E.D.Mich.1976); v. Storie F.Supp. 306 consequence causing or forum state the F.Supp. 141 Corp., 417 Second, the cause of Beech state. in the forum Aircraft (E.D.Mich.1976). the defendant’s must arise from action Finally, the acts there. activities “conse that These cases reason consequences must have defendant itself and must the tort claim quence” is enough connection with substantial Michigan as a result arise within juris- the exercise of forum state make action: where extra-territorial defendant’s reasonable. the defendant diction over state, injury occurs outside LAK, Enterprises, v. Deer Creek Inc. consequence action—the cause of —does denied, (6th Cir.1989), cert. Mich.App. Holsey, 81 v. also. Clavenna — U.S.-, L.Ed.2d 110 S.Ct. (1978)(discussing Sto 265 N.W.2d 378 Co., (1990) (citing Machine Southern 145). rie, and Cla- F.Supp. at Storie 381). However, an additional theory premised on venna were case involves when the concern arises subjecting the non-resident as it does defendant non-resident alien other than upon no forum contacts based circumstances, Supreme In such here. fundamental injury would be plaintiff’s to undertake has directed us Court itself occurred ly unfair where giving special inquiry reasonableness the forum state. outside placed upon “unique burdens weight to the However, distinguish instanc these cases foreign in a oneself who must defend one here, es, jurisdiction is present where Metal Indus. Co. also legal system.” Asahi 102, 114, noting Court, transacting premised 480 U.S. Superior 1026, 1033, “the non-resi 94 L.Ed.2d circumstances such S.Ct. purpose Machine and Scrutinizing usually said to be Southern can be dent ... solely against requirements privilege Metal availing Asahi himself ... of fully backdrop Appellant’s affidavits Michigan.” Cla conducting business they are satisfied. pleadings, we conclude venna, Mich.App. 265 N.W.2d 81 has un the defendant Where 379 by the defen Purposeful availment reasonably contacts, may he dertaken such in, acting or caus privilege of the dant to de being into the forum haled foresee in, state is “the consequence the forum ing particularly so when himself. This is fend jurisdic personam qua non of in sine although a “conse plaintiff’s injury, Co., 401 F.2d at tion.” Southern Machine forum, occurring outside us, quence” Where, the case before as in 381-82. defendant’s busi consequence of the also a of the non conduct the action arises from in the forum. ness transactions injures the physically resident forum, has typical claim outside Theun Assuming must that we as has defendant that the been non-resident true, allegations Matthews has issen’s are in the in the forum consequences caused in a and maintained residence medi injury itself and related form of the carriers and other with common contracted The Michi expenses.3 and cal treatment might suf allegations alone firms. These district courts gan and the courts federal availment. We purposeful argument. fice to establish uniformly rejected this long the Southern Ma- See, Mich.App. gan arm that Holsey, mirrors e.g., 81 Clavenna v. Shessel, provides requirements. statute (1978); chine The Price v. N.W.2d 378 accord 265 personal jurisdiction an (E.D.Mich.1976); over individual limited F.Supp. Storie v. 306 415 alia, doing causing (E.D.Mich. upon, or F.Supp. "[t]he based inter Corp., 141 Beech 417 Aircraft occur, done, Industries, consequences to 1976); an act to be Amburn v. Forster Harold resulting tort." Ltd., (E.D.Mich.1976). action for Mich. state an F.Supp. These 1302 423 (West 1981) (em- 600.705(2) Comp.Laws process §Ann. directly the due do not cases address added). phasis provision the Michi- question, construe but Metal, the busi- Asahi a California resident the causal nexus between believe injury brought product liability Appellant’s action Califor- ness contacts against We see to reinforce this conclusion. nia state court the Taiwanese man- serves Appellant why the mere fact that motorcycle no reason ufacturer a defective tire. 105-06, his across the border sustained 480 U.S. at at S.Ct. 1028-29. finding. should disturb impleaded Japanese Canada The defendant manufacturer of the tire valve stem assem- test next re- The Machine Southern Co., bly, seeking Asahi Metal Industries of action arise from quires that the cause indemnification. Id. at at S.Ct. The fore- forum activities. the defendant’s primary 1029. The suit was settled and going amply illustrates that this discussion dismissed, leaving only third-party ac- Appellant’s cause requirement is also met. Supreme tion. The held the Id. Court injured action—his hand—resulted personal jurisdiction by exercise of Califor- employee of Matthews’ while the conduct nia over Asahi would be unreasonable and place of Appellant present was at his busi- incompatible requirements with the of the alleges pursuant Appellant to what ness fourteenth amendment. Id. at carriage that Matthews was a contract S.Ct. at 1034. Thus, Direct Transit. had executed with alleged con- for Matthews’ but Weighing each of the aforementioned employer, Theunissen would tacts with factors, the Court determined ex- that the injury. no have sustained subject ercise of Asahi to having severe burdens to travel Supreme Finally, light headquarters Japan from its to Califor- Metal, we must Court’s decision Asahi foreign nia legal to defend itself before a alleged contacts inquire whether Matthews’ Id., system. at 1033. The S.Ct. enough a substantial connection bear parties nature of the also diminished the jurisdic- to make the exercise of weight countervailing interests. preliminary As a observa- tion reasonable. primary Settlement of action satisfied tion, previously we reiterate our announced plaintiff’s obtaining interest relief. that an inference of reasonableness view remaining third-party The fact met arises where the first two criteria are signifi- plaintiff was not a California citizen “only and that the unusual case will not cantly dissipated interest in the California’s Greetings meet this third criterion.” Am. manu- case. Id. valve stems had been Cohn, Corp. v. Japan shipped factured in to Taiwan Cir.1988) (quoting First Nat. Bank of the firms oc- and the transaction between Co., Louisville v. J.W. Brewer Tire curred in Taiwan. Id. (6th Cir.1982)). Finally, in view of the international fla- Metal, Supreme de In Asahi the Court case, vor of the the Court modified its exercising termined the reasonableness of “ of the interests of the ‘sev- consideration by jurisdiction over an alien defendant bal ” procedural the eral States’ to “consider defendant, ancing “the burden on the the policies of other nations and substantive state, plain of the forum and the interests by whose interests are affected the asser- relief,” obtaining giving in tiff’s interest “ jurisdiction by the court.” tion of California judicial sys regard due to ‘the interstate 115, at 1033. The Id. at 107 S.Ct. Court obtaining interest in the most effi tem’s that these interests would be differ- stated controversies; and the cient resolution of case, they ent in each but added that shared interest of the several States in by inquiry served a careful into “be best furthering fundamental substantive social ” juris- of the assertion of Co., the reasonableness policies.’ 480 Asahi Metal Indus. unwillingness and an to find the 113, 107 1033, diction ... U.S. at S.Ct. at 94 L.Ed.2d at on an alien defendant out- (quoting serious burdens Volkswagen 105 World-Wide v. Woodson, 286, 292, 559, part weighed by minimal interests on the of 444 U.S. 100 S.Ct. 564, (1980)). plaintiff L.Ed.2d 490 the or the forum state.” Id. 62

1462 amend of the fourteenth to the the instant boundaries reasoning to Applying Bank Barclays v. Chandler See ment. of that the exercise case, apparent it is Cir.1990); (6th PLC, 1148, 1150-51 898 F.2d reasonable. Unlike be jurisdiction would Enterprises, 885 LAK, Inc. v. Deer Creek Metal, on the burdens Asahi denied, Cir.1989), cert. (6th 1293, F.2d 1298 slight in this case. comparatively would be — 1525, U.S.-, L.Ed.2d 110 108 S.Ct. ten only approximately Windsor, is Ontario Quali (1990); Michigan Bank v. Nat. 764 Moreover, judicial the miles from Detroit. (6th Dinette, Inc., 462, 464 888 F.2d ty States and the United systems of Canada Spoon, v. Hertzberg & Noveck Cir.1989); tradi- same common law rooted the are Chrysler Cir.1982); (6th 478 contrast, the By interests tions. Corp., 643 F.2d Fedders Corp. v. Michigan are of and the State denied, Cir.), U.S. cert. (6th Mi- is a citizen of high. quite Theunissen This 70 L.Ed.2d 207 102 S.Ct. injury. Michi- for his chigan seeking relief upon the decision of understanding rests providing forum gan has interests v. Michigan Supreme Court the Sifers as in dispute as well that him to resolve Horen, Mich. 188 N.W.2d foreign conduct of business- regulating the “repre (1971), stating long the arm that busy through the trading in es Michi attempt the part an sents and Windsor. Detroit corridor between poten expand to its full gan to Legislature Notwithstanding admonition scruti jurisdiction of Michi personal tial limited of assert carefully reasonableness nize (foot Id. gan over non residents.” courts also Supreme Court jurisdiction, ing omitted, original). How emphasis in note “[wjhen minimum contacts that stated ever, weigh against three considerations established, of often interests been in all this view of co-extensiveness applying of forum in the exercise plaintiff and the instances. justify even the serious will jurisdiction reveals First, close examination Sifers defendant.” on the alien placed burdens only to limited statement attached that this 1033. Assumed Id. at S.Ct. premised upon the jurisdiction personal true, jurisdictional contacts Theunis defendant’s transaction non-resident in his affidavits establish sen has advanced Id. N.W.2d the state. business within contacts; in view requisite minimum discussed, con- As will be at 624-25. interests of burdens and comparative one of duct of business state limited personal parties exercise in Michi- “relationships” identified several Michigan would be reason by per- give can to limited gan rise law Co., Kresge Noel S.S. able. Cf did not address jurisdiction. sonal Sifers Cir.1982) (approving exercise Second, jurisdiction. the other bases indemnification an our atten- Matthews has directed Appellee Japanese retailer over a by action a U.S. a recent decision tion to manu Korean trading company that sold appears qualify Supreme Court retailer). pliers to factured defective long arm is co-ex- widely view that the held alle Thus, Appellant’s factual find that we emphasizing that process, due tensive with and without in his favor gations, viewed upon the ‘ex- “rested the decision Sifers the con statements regard to Matthews’ indi- jurisdiction to the extent ercise [of] pro satisfy the due prima trary, do facie Hor- v. the statute....’ cated in [Sifers jurisdiction. personal requirements cess 195, 198, en, N.W.2d 623 Mich. 188 385 v. Witbeck (Emphasis supplied.)” (1971)]

B. Inn, 659, 666 Ranch Mich. Cody’s Bill 428 (1987) (em- 439, n. 3 Appellant’s 3, alle- 443 whether n. N.W.2d We next assess 411 Witbeck, Michi- the original). the In phasis within gations brought Matthews’ jurisdictional issue the gan As decided Michigan’s long-arm statute. court scope of making a discus- grounds matter, process this note that on due preliminary we a unnecessary; never- long arm the Michi- sion of historically has understood Circuit suggests that an theless, this statement long-arm statute extend intend its to gan to

1463 independent been business, Enterprises, limited on more sonal Mich.App. cases Keenan, Mich.App. (1979)); fendant based thus transactions ate cise of limited Cir.1989); these personal lant cussion of The case grounds other objective competing transaction has restricted present injury. satisfied. suggest competing on tort action rooted personal and firms see also jurisdiction particularly necessary stated Rann Cir.1986) (citing before us consideration —to between See a long theories and those personal jurisdiction that policies 265 N.W.2d when the potential conflict between of business. v. determine whether policies, and jurisdiction a Finally, other LAK, Clavenna v. than the arm McInnis, where prima —we in tort Michigan. The the non-resident presents a 1293, governing the analysis is scope Inc. action is believe alleged business of the due facie claims for transaction Woodward v. 1298 is somewhat of our immedi- process Deer Creek N.W.2d 317 In view Holsey, long long arm premised based 4n. case for personal in order. in cases full dis- (1978). Appel- facts exer- arm per (6th had de- v. issen relies on vided Mich.Comp.Laws Ann. § these Theunissen in his affidavits (West has been satisfied section limited court agent and the state relationships sufficient personal vidual and within the state. relationships: es to be rendered act which creates furnished in the state al or his dant. The (1) (5) Mich. ^[*] for in provisions. 1981). The Entering ... Furthermore, of record of this state 600.705(1). Our existence of personal judgments against representative 195, 195, basis of has also Sft transaction section to enable the court conclusion between two of these into a contract for jurisdiction leads us to conclude facts Theunissen clearly sjc jurisdiction to enable a or for See Sifers 600.705 met his any of 188 N.W.2d any we believe an individual or shall constitute a that Jjt arising satisfy each of materials by the defen- 600.705(1), (5) any as follows: grounds, pro- burden over due Sfc to exercise cases con to render out following following individu- the indi- process alleged Horen, servic- under of an to be sjs that independent provide an struing this statute ap- pending for the Michigan, the forum holding. basis for persons to real subjects non-resident peal, in a language sev- jurisdiction of its courts identical construing limited to Mich.Comp. long applicable arm statute companion circumstances. enumerated en corporations,5 the 1981).4 (West Theun- non-resident Ann. 600.705 Laws § served; (3) the defen- process is when distinguish the time point, is useful to 4. At this Mich.Comp. jurisdiction. to has consented jurisdiction dant general personal concept of (West 1981). In the case Ann. 600.701 § Laws personal jurisdiction. General personal limited us, suggests Mat- parties that none proper before possessing provides jurisdiction a court personal jurisdiction. subject general authority thews jurisdiction "to subject matter alleged Matthews Although Theunissen binding judgment personal [over enter alleges Michigan, he a residence maintained facts or cir- regardless of where the defendant] actually at the resi- lived neither action giving rise to the cause cumstances any period that he exhibited nor dence for occurred, See or out.” may in the state necessary him a domi- to deem intent to remain Chapter Com- Mich.Comp.Laws Practice Ann. allegation is no ciliary Michigan. Since there contrast, (West 1981). By limit- mentary at 606 jurisdiction or re- that Matthews consented upon power personal confers ed Michigan, basis process no service of ceived against judgments enter court to Accordingly, we general jurisdiction exists. only upon arise out of claims which defendant per- Michigan’s limited limit our discussion act(s) establishing jurisdictional connec- long arm. sonal Id. and the forum. the defendant tion between 600.715(1) subjects a cor- Mich.Comp.Laws per- § general Michigan subjects individuals jurisdiction of poration the limited to three instanc- jurisdiction of its courts in sonal agent corporation has or its (1) present its courts when defendant when the es'. any "(1) (2) of business engaged transaction in process; when of of service state at the time state.” within the state at is domiciled in the defendant Theunissen, light most favorable to it word a Supreme Court stated that “[t]he It just says. clearly it includes lends credence to his assertion that ‘any’ means what ‘every’.... comprehends It ‘each’ and contract existed. While we are sat- such a Board En Lanier v. Am. ‘slightest’.” alleged isfied that each of these contracts Cir.) dodontics, 843 F.2d 905-06 separate act of transact- would constitute at 199 n. 385 Mich. (quoting Sifers, sweeping scope ing business under denied, (1971)), 488 U.S. cert. N.W.2d 623 Michigan long-arm, go need not this we 102 L.Ed.2d 329 109 S.Ct. Theunissen would not have been at far. applies equal force construction with This Lumber, not have and would sus- Matthews Hertzberg Noveck v. to section 705. & injury, assignment his tained his but for (6th Cir.1982). F.2d Spoon, 681 alleged carriage contract on perform the would this broad construction We believe light, employer’s behalf. Viewed this jurisdiction on long arm to base extend allegations prima indi- Theunissen’s facie Direct shipment contract with Matthews’ from the cate that the cause of action arose alleged Appellant’s own affidavit. Transit alleged to have been transacted business Lanier, F.2d at 905-06. In C f. validating jurisdiction thereby under sec- Lanier, the non-resident de we held that 600.705(1). tion fendant, specialty Illinois-based dental an shipment Even if the ten contracts were subject person to limited organization, was sufficient, scope not alone of the stat- Michigan long under the arm jurisdiction al certainly supports ute the view that Michi- only contacts with the state although its gan would find a foundation (at sending were its act of by combining alleged contracts Matthews’ request) application an for certi plaintiff’s trucking firms with his al- with U.S. by the Board and occasional corre fication Michigan-based re- leged contracts with the telephone concerning spondence and calls cipients Hertzberg of the wood. See & plaintiff’s application. the status of the Id. Noveck, (discussing 681 F.2d at 478 Stating that the statute was satis at 905. cases). even the The fact that Theunis- fied “if defendant conducted id., Michigan,” slightest performance act of business arose from the sen’s emphasized that “the Board’s contacts alleged we of these contracts reinforces one pur Dr. Lanier in were for conclusion. Id. poses establishing a business relation Finally, allegations that the Theunissen’s Thus, ship[.]” we concluded the con Id. recipients were Matthews’ lumber the transaction of some tacts constituted suggest “customers” Matthews had con- necessary provided which tracts to furnish materials —lumber—in the predicate for limited where the 600.705(5). scope state within the of section claim, action, a cause of sex discrimination contracts, exist, they pro- These if arose out of the business transacted. Id. long-arm juris- an alternative basis for vide at 908. of action arose diction where the cause us, Similarly, Appel- in the case before performance here. from their as does Ap- contracted lant asserted Matthews Consequently, find Theunissen has we employer shipment of lum- pellant’s for the showing jurisdic- prima made a facie recipients ber Matthews’ business under section 600.705. tion Michigan. He asserts his affidavit alleged in Theunissen’s affi- The facts as making such a engaged that he was satisfy requirements of the davits both the Company, shipment, Weyerhaeuser and the relevant fourteenth amendment Moreover, injury. when he sustained his There- long arm statute. provisions of the ten the Fowler identifies least fore, alone and upon the affidavits based ship- separate other contracts for such contrary as- regard to Matthews' without Although does ments. the Fowler affidavit See, sertions, inappropriate. dismissal was identify al- specific not contract which Quality Di- Michigan Nat. Bank e.g., legedly Appellant took the (6th Cir.1989). nette, March, 1988, Inc., Lumber Transfer in viewed investigate covery jurisdictional to facts. of judgment the reverse Accordingly, we district court. v. First Tennessee Bank Nat. by the Serras entered dismissal 1212, (6th Cir.1989);

Ass’n., 875 F.2d C. Corp. Corp., Chrysler v. Fedders see also (6th Cir.) (discovery discussions, 643 F.2d our preceding the In of each caveat a qualified by may the when defendant appropriate been be analysis has true. allegations must be Appellant’s jurisdiction), of moves to for lack dismiss asserts that Appellant’s denied, 454 U.S. S.Ct. cert. wood trucking firms to haul hired U.S. However, the of scope L.Ed.2d 207 in Mi- customers to his from his business matter to dis discovery is committed a Ap- facie, Prima chigan and elsewhere. discretion, sound and trict court’s district true, satisfy assertions, if would pellant’s rulings discovery on matters are sub court long statute arm requirements of ject only for abuse of dis to reversal process. requirements of due Chrysler Corp., 643 F.2d at 1240. cretion. However, affidavits contradict Matthews’ first, toas Appellant’s of both assertions — us, the In the case before district second, customers, identity of his that Theunissen had am court determined If trucking hired the firms. as to who hearing ple prior to the on dismis time true, appears it unlike- are these assertions discovery conduct the neces sal motion to exist to contacts would sufficient ly that sary to establish whether exist jurisdiction. sustain Indeed, the time Theunissen filed ed. amply foregoing discussion As the until Complaint on November his demonstrates, parties the affidavits of April he had five hearing on disputes central factual presented two discovery. months to conduct and one-half resolving the issue of the existence notice of the Theunissen received scheduled Appellant alleged Mat contacts 21, 1990, hearing February and was Michigan. pro with thews maintained affidavit refut served with Sid Matthews’ court the district course selected cedural allegations on March ing jurisdictional his of the Defendant’s consideration foreclosed 22, 1990, than three weeks after fewer do representations. Matthews’ affidavits sup affidavits Theunissen filed own serve to plausible explanations that offer Thus, for at least port jurisdiction. allegations. Appellant’s undermine prior to the one-half weeks hear three and nature of directly contradictory view specific points in ing, knew Theunissen assertions, evidentiary hear an parties’ contacts, yet concerning Matthews’ dispute which factual ing necessary to determine day discovery until the pursue did not Serras, is accurate. account Moreover, the hearing district itself. case for remand the therefore We discovery by his denial of judge modified course, hear hearing. in such a Of such Appellant’s authority from coun soliciting pre by a Appellant must establish ing the discovery. further support Coun sel of the evidence that ponderance reply to the court’s cases sel offered no could not the court Id. Because exists. any explanation did he offer request, nor on the affidavits this issue properly resolve court stated lapse. The district for this alone, an abuse do so constituted abuse of discretion that it be an view discretion. the fore discovery. In view of grant say facts, the district III. we cannot going denying its discretion court abused to the district turn our attention We now Therefore, discovery. motion for further for dis- Appellant’s court’s denial of motion issue, the jurisdictional upon remand district covery. previously, discussed As permit fur required to court shall not a motion to dismiss court faced discovery, retains the discretion but ther the defen- jurisdiction over lack of if chooses. do so dis- may permit further dant arrange rect Transit to pickup any IV. for shipment. other It does not establish that reasons, foregoing we RE- For Matthews had entered into a contract of of the district court dis- VERSE the order carriage Direct ship- Transit for the case, and REMAND missing Appellant’s ment out of the accident which arose. And proceedings not inconsistent for further it does not establish that as of March opinion. with this 1988, Matthews had ever entered into a carriage contract of with Direct Transit. NELSON, Judge, A. DAVID Circuit dissenting. gen- The affidavit contains a number of may may or not

Defendant Sid eralized references “customers” of Mat- occasion, engaged, in the transac- have in Michigan, specifically thews but does not within the State of Michi- tion of business allege Weyerhaeuser Company that —the affidavits, however, gan. As I read the consignee of the lumber that Mr. Theunis- plain plaintiffs they make it that can picking up sen was Canada the time of competent offer no evidence to show that his accident—was a Matthews customer. complaint asserted in their the claims are provides suppose The affidavit no reason to “arising out of an act” that claims created any that Mr. have Theunissen would had (i.e. “relationship” transaction of way knowing Weyer- “[t]he whose customer any business within the state ... ... a haeuser, any consignee, really or [or] other contract for services to be rendered or for subsequent was. Mr. Matthews’ affidavit to be furnished in the shows, materials state contradiction, point without that defendant”) capable supporting of fact Matthews had no customers in the of limited exercise United States. pursuant Mich.Comp. over Mr. Matthews swears, In his affidavit Mr. Matthews 600.705(1) showing

Laws or A that § among things, other “arising the claim asserted is one out of” “3. I ... do not hire or retain truckers an act is essential to the such exercise of trucking or firms to deliver materials jurisdiction. Accordingly, limited and be- to the United States. cause there is no basis for the exercise of pay freight 4. I do not or hire for for general personal jurisdiction under Mich. delivery of materials to the United (a Comp.Laws applicable 600.701 statute § any way. States present when the individual is in the state, Michigan domiciliary, ais or has con- My operation 5. of the consists in Michigan), sented to be sued I think the reloading of a lumber business and dismissing district court was correct in storage yard. action lack of for over Mr. Mat- My 6. customers are wholesalers who person. thews’ buy the lumber from mills located by plaintiff The affidavit executed Her- Canada. alleges, man Theunissen “on information customer, wholesaler, my 7. When belief,” and Direct drivers for Transit buys arranges the lumber the mill Lines, employer, picked up Theunissen’s shipment my yard. 122 loads of lumber from Matthews 8. The wholesaler contracts with me to request. at Matthews’ For reasons to be my unload the lumber and store it at explained shortly, appropriate I think it is yard. to read Mr. Theunissen’s my company purchase 9. Neither I nor light of the record as a whole. Read in this ownership or assume of it lumber light, not affidavit does establish that any way. Transit, Matthews had contacted Direct elsewhere, arrange sells the lum- pick- 10. The wholesaler then customers, up particular arranges for shipment out of to its which ber pick-up transportation my the March 8th It accident arose. does not yard establish that Matthews had contacted Di- to its ultimate location. no refer- remaining two documents contain where no control over I it is at all. Not one where to Matthews from and ence lumber comes earlier lading bears a date eight bills of going.” 2, almost nine 1988—a date December than Adminis- Direct Transit’s of The affidavit accident. after Mr. Theunissen’s months Fowler, repre- Eugene Manager, tration re- only substantive plaintiffs’ sents suggested contrary to what is Assuming, The affidavit. Matthews’ sponse to Mr. themselves, lading that Mat- by the of bills that Direct establishes affidavit Fowler many as pay Direct Transit for did thews pick- reflect records computerized Transit’s pickups made at Matthews’ ten of the as Matthews of lumber ups 252 loads of 1988, subsequent to June of yard in Canada 19, 1990. April of 1988 and July between (covering than four payments less such Mr. Mat- (This consistent with perfectly is pickups during that percent of total evidence, quan- of course—and own thews’ frame) that Matthews would not show time Matthews at the pickups proof of tified in customer Michi- made a to a ever sale not have established would yard Canada post- few Documentary evidence-of a gan. any business transacted that Matthews payments to Direct Transit would accident if the of 1988 even in March he never Mr. claim that Matthews’ refute The period.) that time proof had dealt sure, but it payments, to be such made attempt to show no makes affidavit Fowler affirmatively limited not establish would lum- any other U.S. or Weyerhaeuser The in this case. personal of a was ever “customer” company ber not Mr. whether Theunissen’s question go say toon affidavit does Matthews. The trans- of Direct Transit’s arose out accident up in picked Cana- loads on ten of the Canada, but acting business in whether 1988, Matthews July of from and after da transacting busi- out of Matthews’ arose Mat- freight charges. Direct Transit’s paid question, it Michigan. On that ness Direct to have been said thews is thus me, gives the the Fowler affidavit to seems ship- ten as to those Transit’s customer help. no real plaintiffs of the ten lading eight for Bills of ments. had moved If defendant Matthews attached, as the shipments are 56, Fed.R. under Rule summary judgment has testi- stating that he Beyond recites. summary judg Civ.P., application compe- knowledge is a fied on Supreme by the standards articulated ment nothing fur- witness, says Mr. Fowler tent trilogy1 could in the Celotex Court in his affidavit. ther Mr. Mat judgment resulted in have lading eight bills of Every one of the under absolutely clear that It is thews. lists a com- Fowler affidavit to the attached any of ‘transaction Michigan law “[t]he shipper. Ev- Matthews as other than pany Michigan by the [defendant] business’ than company other lists a ery one of them personal juris no limited confer ... consignee. One Weyerhaeuser as District Court unless upon the diction Lumber list Matthews appears to bills by the pleaded of action cause “broker;” bear three others as Transfer transacted the business out arose “MATH,” preceded word handwritten Endo Bd. American Lanier v. there.” circle, of which “T” in a by the letter both Cir.), 901, cert. dontics, 908 portion added to symbols been 310, 926, 102 denied, 109 S.Ct. 488 U.S. as Geor- consignee lists the form that Horen, (1988). v. L.Ed.2d lading bears a Corp.; one bill of gia Pacific Cf. Sifers (1971)(“lim 195, 188 N.W.2d Mich. Matthews instruction bill handwritten a non-resident exposes ... $45; ited chg.” in the amount for an “S/O which only for a cause suit Math”) say (including marked “T one two serving relationship as out of the arose specifying without to bill Matthews The affi- amount; jurisdiction_”) for such charge basis or type (1986); Catrett, Indus- Electric L.Ed.2d 202 Matsushita 106 S.Ct. v. 477 U.S. Corp. 1. Celotex Co., Corp., 475 U.S. (1986); Radio Liberty Ltd. v. Zenith trial Anderson 91 L.Ed.2d Inc., L.Ed.2d 538 106 S.Ct. Lobby, 477 U.S. 106 S.Ct. affidavits, it is most by plaintiffs’ made simply case do not show filed in this davits have found unlikely that the court would Mr. Theunissen injury which that the hand any material fact. genuine no issue as of lum- picking up the load while suffered question Serras was whether in March of consigned Weyerhaeuser ber had or had not made out-of-state defendant Weyerhaeuser a sale to arose out of plaintiffs to the representations false Matthews, Wey- opposed to a sale to as “in Michigan, and the district court was of Matthews. by a customer erhaeuser when it looked to the defen- clear error” that the do not show The affidavits contrary ignored affidavit and dant’s having called arose out of plaintiffs’ affidavit. Id. at in the assertions the arrange to for written Direct Transit disputed “Particularly where the Mat- to a customer of pickup, opposed as intimately inter- are jurisdictional And the affidavits having done so. thews facts dispute on the parties’ with the twined injury the arose out do not show that observed, merits,” “a trial court Serras relationship any Michigan other require plaintiffs to mount not should Mr. existing in March of between would, effect, establish the ‘proof which Direct Weyerhaeuser, or Matthews and right and their to validity of their claims friend, Transit, girl former or Matthews’ ” (citation sought.’ relief Id. at 1215 the anyone else. omitted, emphasis supplied). could have Although Mr. Matthews The contrast and the between Serras summary judgment juris- on the moved sharp is a one. In the instant case bar 56, Fed.R.Civ.P., under Rule dictional issue can, various affidavits for the case the to for dismissal un- he chose instead move part, reconciled one another. most be with 12(b)(2). aspect, procedural In its der Rule accept allegations made Unless we are to the former—and un- the latter rule mirrors on “information and by Mr. Theunissen presented circumstances this der the belief,” plaintiffs’ the facts asserted why case, I sure I understand the am not all, disputed at aside affidavits are not treatment accorded the affidavits should be (1) question from the whether Matthews substantially thought depending to differ freight shipments paid the on a handful by moving on which rule was cited Weyerhaeuser consignees to other than party. accident, (2) the some months after the It true that in v. First Tennes- Serras question as to whose “customers” the con- Ass’n, Nat. see Bank were, subject on which affiant signees Cir.1989), court, relying pre-Celo- on a compe- did not indicate he was Theunissen Appeals for the decision of the Court of tex (Affiant Matthews, testify. tent who Circuit, beyond a refused to look Second competent testify, clearly showed was showing prima facie consignees not his custom- that the were plaintiffs presented affidavits that ers; unchallenged.) showing stands opposition to a motion submitted being “intimately Far from intertwined” 12(b)(2). Rule defendant for dismissal under liability for question of Matthews’ panel But I do not understand the Serras hand, more- injury to Mr. Theunissen’s its decision on the fact that to have based over, nothing jurisdictional facts have 12(b)(2) rather the defendant cited Rule per- to do with the merits of whatever stating holding at 875 than Rule 56. Requiring plaintiffs sonal claim. fact, court F.2d at Serras personal jurisdic- proof mount of limited the defendant’s motion as a characterized way in no the defendant would tion over judgment” it is summary “motion for —and plaintiffs to establish validi- require the holding that the court’s perfectly obvious right to the claims and their ty of their tort if the defendant have been the same circumstances, sought. Under these relief summary really judgment. had moved ap- could plaintiffs’ affidavits even if the showing, prima willing read as propriately court had been Even if Serras fa- of limited cie, the exercise grounds for use of the affidavits contradict- to sanction I do not believe that personal jurisdiction, prima showing ing the facie pre- ought like it or cases Serras deciding court the district

vented five of all issue on basis

jurisdictional the affidavits. ILLINOIS, ex rel. Roland W. OF

STATE

BURRIS,* Attorney General of Illinois, proprietary ca in its

State of capacity, parens patriae

pacity, in its capacity, representative

and in its

Plaintiff-Appellant, PIPE LINE EASTERN

PANHANDLE

COMPANY, corporation, a Delaware

Defendant-Appellee.

No. 90-1231. Appeals, States Court

United

Seventh Circuit.

Argued Jan. 1991. 4, 1991.

Decided June

Rehearing Rehearing In Banc Sept.

Denied * filed, Fed.R.App.Pro. Hartigan’s. See appeal name for Mr. 43(c)(1). was Roland Burris Since this W. Hartigan as Attor- has succeeded Neil F. Illinois ney Burris's General. We have substituted Mr.

Case Details

Case Name: Herman Theunissen and Ann Theunissen v. Sid Matthews D/B/A Matthews Lumber Transfer

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 24, 1991

Citation: 935 F.2d 1454

Docket Number: 90-1647

Court Abbreviation: 6th Cir.