163 Ohio App. 3d 479 | Ohio Ct. App. | 2005
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *483 {¶ 1} Plaintiff-appellant, Matt Joffe, appeals from the judgment of the Franklin County Court of Common Pleas that dismissed his case for lack of personal jurisdiction pursuant to Civ.R. 12(B)(2).
{¶ 2} On October 3, 2003, appellant filed a complaint against defendants-appellees, Cable Tech, Inc. and Bruce Stone, the Cable Tech national director of sales and quality systems. In the complaint, appellant alleged the following: (1) appellant was living and working in California when Cable Tech "became aware of [appellant]" through an employment placement agency and offered him a position in Columbus, Ohio; (2) "[t]hrough various phone conversations and emails that occurred in February and March of 2003, Stone, acting on behalf of *484
Cable Tech, apprised [appellant] of the position of Field Service Technician, informed him that he was hired, and instructed him that his start date was March 21, 2003"; (3) Stone "provided [appellant] with an `offer of employment' letter that [appellant] signed and sen[t] back to Cable Tech indicating his acceptance of Cable Tech's terms"; (4) "[b]ased upon [appellees'] representations, [appellant] and his wife uprooted and moved to Columbus so that [appellant] could take the new position with Cable Tech"; (5) when appellant and his wife arrived in Columbus, appellees did not have work for appellant; and (6) at the end of April, Stone told appellant that "`we need only one employee in Ohio'" and that appellant would not be working for Cable Tech. Appellant asserted that he suffered damages from appellees' conduct and raised claims of "breach of contract/detrimental reliance," fraudulent inducement, unlawful discriminatory practices in violation of R.C.
{¶ 3} Appellees moved to dismiss appellant's complaint for lack of personal jurisdiction and improper venue pursuant to Civ.R. 12(B)(2) and 12(B)(3) respectively. Eric Stroud, Cable Tech president and chief executive officer, and Stone attached affidavits to the motion.
{¶ 4} Stroud's affidavit indicated the following: (1) Cable Tech is incorporated in Iowa with its principal place of business in Iowa; (2) Cable Tech provides service, installation, and maintenance to phone systems, including installing, moving or changing cable lines; (3) Cable Tech has never been licensed to do business in Ohio; (4) Cable Tech has never maintained an office in Ohio; (5) Cable Tech does not "regularly conduct business in Ohio"; (6) Cable Tech "has hired independent contractors * * * to provide services in the Cleveland area on behalf of Sprint * * * but these independent contractor jobs equate to less than 25 total hours worked in Ohio," and Sprint, "a non-Ohio based company," paid for the jobs "through its office" in Kansas; (7) "[a]round Spring 2003, Cable Tech was considering placing Field Service Technicians in Ohio, based on a new service contract it had acquired with Sprint to provide phone system services on behalf of Sprint," and it "appeared this would include significant work in the Columbus, Ohio area"; (8) the business opportunity with Sprint "was not realized, and so Cable Tech could not employ any Field Service Technicians for that area as planned"; (9) "[a]t no time were Cable Tech representatives present in Ohio related to the present dispute"; and (10) Stroud "would be significantly burdened if forced to defend this lawsuit in Ohio" because it "would be extremely difficult for both [him], as well as [his] employees, to travel to Ohio on what might result in several lengthy trips over the course of this litigation" and because "Cable Tech's business operations would be significantly disrupted by [his] absence, as well as the absence of other employees." *485
{¶ 5} Stone's affidavit indicated the following: (1) Cable Tech is incorporated in Iowa and has its principal place of business in Iowa; (2) Cable Tech has never been licensed to do business in Ohio; (3) Cable Tech does not regularly conduct business in Ohio; (4) Stone has "not been involved in the discreet subcontracting work [Cable Tech has] done in Ohio"; (5) Stone is an Iowa resident; (6) Stone has not been in Ohio in the last ten years and has never been in Ohio on behalf of Cable Tech, "including related to this matter"; (7) "[a]round the spring of 2003, [Stone] received information about [appellant], then a resident of California," through an employment placement agency; (8) Stone originally contacted appellant for work in California but learned that appellant was moving to Ohio and was interested in a position in Ohio; (9) "[m]ost communication[s] that occurred between [appellant] and [Stone] were exchanged via electronic mail or telephone while [appellant] resid[ed] in California, including his interview"; (10) "[a]t that time, Cable Tech was considering placing Field Service Technicians in Ohio, based on a new service contract it had acquired with Sprint"; (11) the Sprint contract "would include significant work in the Columbus, Ohio area"; (12) "[b]ecause of the unpredictability of this new business opportunity, [appellant], while still residing in California, was only offered a position to serve as an independent contractor for Cable Tech" and, after 60 days, appellant "would only become an employee of Cable Tech * * * if both Cable Tech and [appellant] mutually agreed that was desirable"; (13) "[o]ver the course of the next month or so, [appellant] and [Stone] exchanged a few electronic mail and telephone communications regarding the delay or possibly complete lack of work stemming from the Sprint business, totaling somewhere around three communications"; and (14) "[a]t the end of this time period, [Stone] communicated to [appellant] that Cable Tech could not employ any Field Service Technicians for that area as planned." Stone also stated in the affidavit that (1) "[d]uring all of [Stone's] communications with [appellant], [Stone] was physically present in Iowa"; and (2) defending this litigation in Ohio would burden Stone's professional obligations to Cable Tech. Lastly, Stone stated that (1) appellant moved to Ohio "even before responding to our offer of an independent contract relationship"; and (2) "[o]bviously, [appellant's] move to Ohio was not dependent on retaining employment with Cable Tech."
{¶ 6} Appellant filed a memorandum opposing appellees' motion to dismiss and attached copies of electronic mail communications between appellant and Stone. As an example, Stone sent a February 28, 2003 e-mail to appellant while appellant was in California and discussed the potential employment opportunity. Other electronic mail communications involved appellant, in Ohio, asking Stone when Cable Tech would start assigning work. The communications also denote Stone's responses to appellant's inquiries. In particular, in response to appellant's inquiries, on April 1, 2003, Stone told appellant that Cable Tech added *486 appellant to the dispatch list, and on April 2, 2003, Stone told appellant that his "official start date" is April 7, 2003, "although it may move forward if we have a dispatch between now and then." After appellant asked Stone why Cable Tech had not assigned him work as of April 10, 2003, Stone responded that appellant could either "exercise some patience" or "resign now and we'll find another tech from the resumes in the area." Lastly, in response to appellant's April 14, 2003 question about when he would get work-related supplies, Stone assured appellant that he would be receiving a "welcome kit."
{¶ 7} On December 9, 2004, the trial court granted appellees' motion to dismiss for lack of personal jurisdiction and improper venue pursuant to Civ.R. 12(B)(2) and 12(B)(3) respectively. Thus, the trial court dismissed appellant's complaint.
{¶ 8} Appellant appeals, raising one assignment of error:
The trial court erred in finding that the Franklin County Court Of Common Pleas lacked jurisdiction over appellees.
{¶ 9} Appellant's single assignment of error concerns the trial court's decision to dismiss appellant's complaint. Appellant does not challenge the trial court's decision to grant appellees' Civ.R. 12(B)(3) motion to dismiss for improper venue, and, therefore, we will not address the trial court's dismissal for improper venue. See App.R. 12(A) and 16(A). Rather, appellant contends that the trial court erred by dismissing his complaint upon granting appellees' Civ.R. 12(B)(2) motion to dismiss for lack of personal jurisdiction. However, we disagree with appellant's contentions.
{¶ 10} Once a defendant moves to dismiss for lack of personal jurisdiction, a plaintiff must establish that the trial court had personal jurisdiction over the defendant. Robinson v. KochRefining Co. (June 17, 1999), Franklin App. No. 98AP-900,
{¶ 11} When determining whether an Ohio court has personal jurisdiction over a nonresident defendant, the court must (1) determine whether Ohio's long-arm statute and the applicable civil rule confer personal jurisdiction and, if so, (2) whether granting jurisdiction under the statute and rule comports with the defendant's due process rights under the
{¶ 12} Ohio's long-arm statute, R.C.
{¶ 13} Appellant first argues that the trial court had jurisdiction over appellees because they "transacted business" in Ohio. See R.C.
(A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's:
(1) Transacting any business in this state[.]
{¶ 14} Similarly, Civ.R. 4.3(A)(1) provides that a plaintiff may make service of process on a nonresident
who, acting directly or by an agent, has caused an event to occur out of which the claim that is the subject of the complaint arose, from the person's:
(1) Transacting any business in this state[.]
{¶ 15} As used in the above jurisdictional provisions, "transact" means "to prosecute negotiations; to carry on business; to have dealings." Kentucky Oaks Mall,
embraces in its meaning the carrying on or prosecution of business negotiations but it is a broader term than the word `contract' and may involve business negotiations which have been either wholly or partly brought to a conclusion."
(Emphasis deleted.) Id. Accordingly, as used in R.C.
{¶ 16} Here, appellant relies on U.S. Sprint to assert that the trial court had jurisdiction over appellees for their "transacting business in Ohio." In U.S. Sprint, the plaintiff, U.S. Sprint Communications ("U.S. Sprint"), sued Mr. K's Foods, Inc. ("Mr. K's"), in an Ohio trial court, although neither party was headquartered in Ohio. Mr. K's, located in Buffalo, New York, manufactured pizza products and cookies for wholesale distribution and home delivery and generated its sales through telemarketing. Mr. K's made telemarketing calls to prospective New York customers through its New York office and in other states through independent distributors. In Ohio, Mr. K's worked with two distributors: (1) Mr. K's Distribution and Sales of Cleveland, Inc., and (2) Mr. K's Distribution and Sales of Columbus, Inc.
{¶ 17} U.S. Sprint sued Mr. K's to recover for unpaid long-distance telephone service on 17 accounts. Six accounts were located in Ohio, one in Pennsylvania, and the remaining ten in New York.
{¶ 18} The Ohio Supreme Court concluded that Mr. K's was "transacting business" in Ohio under the long-arm statute. Id.,
{¶ 19} However, appellant's reliance on U.S. Sprint is misplaced. In U.S. Sprint, the Ohio Supreme Court concluded that personal jurisdiction under the long-arm statute existed over Mr. K's because Mr. K's transacted business in Ohio by using U.S. Sprint long-distance accounts to conduct business in Ohio and to take orders from its Ohio independent distributors for goods to be sold in Ohio. Here, the transactions that appellant claimed induced him to move to Ohio did not take place in Ohio. Rather, appellant was residing in California when an employment placement agency provided information about appellant to Iowa resident Stone and Iowa corporation Cable Tech. Likewise, appellant was living in California when Stone, in Iowa, interviewed appellant. Similarly, appellant was residing in California when the Iowa corporation offered the independent-contractor position.
{¶ 20} Although appellant communicated with Stone after appellant moved to Ohio, the record evinces that the communications primarily consisted of e-mails that appellant initiated. As noted below, such "unilateral activity" from appellant is insufficient for a court to confer jurisdiction over appellees. See Gallert v. Courtaulds Packaging Co. Inc.
(S.D.Ind. 1998),
{¶ 21} Appellant also points to business negotiations that Cable Tech had with Sprint to further allege jurisdiction under the "transacting business" prongs of the long-arm statute and rule. However, these negotiations are immaterial to our inquiry because the negotiations were with Sprint, a party not involved in this suit. See R.C.
{¶ 22} Accordingly, we conclude that R.C.
(A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's:
* * *
(2) Contracting to supply services or goods in this state[.]
{¶ 23} Similarly, Civ.R. 4.3(A)(2) provides that a plaintiff may make service of process on a nonresident:
who, acting directly or by an agent, has caused an event to occur out of which the claim that is the subject of the complaint arose, from the person's:
* * *
(2) Contracting to supply services or goods in this state[.]
{¶ 24} To support his claim that the trial court had jurisdiction over appellees under the "[c]ontracting to supply services or goods" prongs in the long-arm statute and rule, appellant again points to negotiations between Cable Tech and Sprint for Cable Tech to provide phone-system services on behalf of Sprint in Ohio. However, as noted above, the negotiations are immaterial because Cable Tech engaged in the negotiations with Sprint, a nonparty, and appellees did not contract "to supply services or goods" to appellant in Ohio. See R.C.
{¶ 25} Nonetheless, even if appellees' contacts were sufficient to confer jurisdiction under the long-arm statute and rule, we must still determine whether those contacts were sufficient under the
{¶ 26} "[T]he extent to which the reach of the long-arm statute is limited by due process is a question of federal law." ScullinSteel Co. v. Natl. Ry. Utilization Corp. (C.A.8, 1982),
{¶ 27} Under the due process clause, a court obtains either specific or general jurisdiction over a nonresident defendant.Helicopteros Nacionales de Colombia v. Hall (1984),
{¶ 28} We first consider specific jurisdiction, which depends on the "`relationship among the defendant, the forum, and the litigation.'" Helicopteros,
{¶ 29} If the court concludes that a defendant has established the requisite "minimum contacts" with the forum state under specific jurisdiction, the court next examines whether asserting personal jurisdiction over the defendant comports with "`fair play and substantial justice.'" Burger King,
{¶ 30} In Gallert,
{¶ 31} In concluding that it did not have specific jurisdiction over the defendants, the trial court noted that the plaintiff "was the Thatcher Plastic division's only employee in Indiana, and that Thatcher Plastic's sales in Indiana were not very significant." Id.,
{¶ 32} Here, like Gallert, the record establishes that appellees' decision to create and terminate the independent-contractor arrangement with appellant did not take place in Ohio, given that Stone was never physically in Ohio for business related to appellant's case, no Cable Tech representatives were in Ohio in matters related to appellant's case, and Cable Tech has never maintained an office in Ohio. As noted in Gallert, the place where appellees decided to hire and terminate appellant's employment is a relevant consideration in support of specific jurisdiction. Gallert,
{¶ 33} Additionally, we find insignificant to the specific jurisdiction inquiry that Stone, on behalf of Cable Tech, responded to appellant's "unilateral" electronic mail communications that appellant initiated while he was in Ohio. SeeGallert,
{¶ 34} Lastly, other circumstances of appellant's case establish that appellees did not maintain sufficient "minimum contacts" with Ohio in regard to the independent-contractor arrangement they made with appellant. Specifically, an employment agency provided Cable Tech, an Iowa corporation with its principal place of business in Iowa, and Stone, an Iowa resident, information about appellant while appellant was a California resident. In addition, "[m]ost communication[s] that occurred between [appellant] and [Stone] were exchanged via electronic mail or telephone while [appellant] resid[ed] in California * * *.'" Similarly, Stone was in Iowa during all of his communications with appellant. Likewise, Stone interviewed appellant while appellant was residing in California, and appellant was still residing in California when Cable Tech offered the independent-contractor position. Furthermore, inGallert, the defendants maintained only one Thatcher Plastic employee in the forum state, and, here, Cable Tech's business opportunity with Sprint "was not realized," and, considering appellant's complaint, Stone indicated to appellant that it could employ only one technician in Ohio.
{¶ 35} Thus, through the above evidence, and in light ofGallert, we conclude that appellees' contacts with Ohio in relation to the independent-contractor arrangement do not rise to the level of a "`substantial connection'" with Ohio to allow Stone and Cable Tech to "reasonably anticipate being haled into court" in Ohio. Burger King,
{¶ 36} In arguing that the trial court had jurisdiction over appellees, appellant also points to contacts that appellees had with Ohio that do not relate to the independent-contractor arrangement. Specifically, appellant notes that Cable Tech has previously hired independent contractors to provide services in the Cleveland area on behalf of Sprint. Appellant also refers to Stone's statement that he has "not been in the state of Ohio in the last ten years." However, such nonrelated contacts are irrelevant to our inquiry because appellant bases his cause of action on the independent-contractor arrangement that appellant was to carry out in Ohio, the forum state, and, as a result, a specific-jurisdiction analysis applies rather than a general-jurisdiction analysis that would consider such nonrelated contacts. See Helicopteros,
{¶ 37} A court may exercise general jurisdiction over a defendant who has "continuous and systematic" contacts with the forum state. Helicopteros,
{¶ 38} In Helicopteros, the plaintiffs instituted a wrongful-death action in a Texas state court against parties that included a Columbian corporation, Helicopteros Nacionales de Colombia ("Helicol"). The plaintiffs instituted the action after individuals died in a crash in Peru involving a helicopter that Helicol owned. The United States Supreme Court held that the Texas court did not have general jurisdiction over Helicol because Helicol did not have "continuous and systematic" contacts with Texas. Id.,
{¶ 39} Here, Cable Tech has far fewer contacts with Ohio than did Helicol with Texas in Helicopteros. When, as appellant mentions, Cable Tech hired independent contractors for work in the Cleveland area, the work equated "to less than 25 total hours." Under Helicopteros, such brief presence in Ohio does not rise to the level of a "continuous and systematic" contact. Id.,
{¶ 40} We also conclude that Stone lacks "continuous and systematic" contacts with Ohio. See Helicopteros,
{¶ 41} Lastly, appellees' contacts from this present action did not culminate in "continuous and systematic" contacts with Ohio, given Cable Tech's claim that the business opportunity with Sprint "was not realized." Cf. Gallert,
{¶ 42} Because neither Cable Tech nor Stone has maintained the high threshold for "continuous and systematic" contacts with Ohio, we conclude that the due process clause precluded the trial court from exercising personal jurisdiction over Cable Tech or Stone through general jurisdiction. See Helicopteros,
{¶ 43} Thus, the
Judgment affirmed.
BROWN, P.J., and McGRATH, J., concur.*497
