Precision Construction Co., and William R. Montgomery & Associates, Inc. v. J.A. Slattery Co., Inc., D/B/A All-State Belting Co., Inc.

CO., and CONSTRUCTION PRECISION Associates, Montgomery R. & William Inc., Appellants, CO., INC., All- SLATTERY

J.A. d/b/a Co., Inc., Appellee. Belting

No. 84-2623. Appeals,

United Court of

Eighth Circuit. April

Submitted

Decided June Davidson, Clayton, Mo., ap-

John L. for pellants. Wehmer, Mo., Clayton, appel-

M. Jill lee. LAY, McMILLIAN, Judge,

Before Chief Judge, WOODS,* Circuit District Judge. WOODS, Judge.

HENRY District McMillian, special- Judge, Circuit filed Appellant Precision Construction Co. ly concurring opinion. Associates, Montgomery William R. & Precision) (hereafter partnership

formed a June, 1983 with Louis offices County, to bid on construction Pillsbury Sauget, company’s work at the plant. The installa- Illinois work included conveyor tion of a belt. After Precision given Pillsbury asked at the conveyor additional belt install an Cahokia, Pillsbury plant at Illinois. J.A. appellee, two belts ordered from * Woods, designation. Henry sitting by The Honorable States Dis- Arkansas, trict for the Eastern District Belting Slattery Co. d/b/a All-State note that the case which we consider dis- All-State). (hereafter Appellee issue, positive is an ex State rel. Metal entity previously which had written Iowa Georgia, Service Center Inc. v. Gaert- ner, solicited orders from Precision. The (Mo.1984)(en banc), 677 S.W.2d 325 to Precision Missouri belts published after the memorandum and transported by Pillsbury quashing order service was filed and was plants in Illinois for installation. Subse- not considered in the court’s memorandum installation, quent both belts failed. to their opinion. employee-sales- All-State had two resident problem The which arises this Missouri, in- men in neither of whom was type requires two-step analysis. of case volved in the above-described transaction. First, activity is the defendant’s within the belts, After failure of the one of these forum state wording embraced within the attempt employees became involved an statute, interpreted by the state ensuing dispute, along to resolve the Second, assuming courts? the defendant’s from Iowa for the employees who came activity statutory to be within the lan purpose. The belt was man- same Cahokia guage, process is it a denial of due by B.F. Goodrich under a war- ufactured jurisdiction assert on the basis of such ac Precision, by ranty. response In to a claim Feeds, tivity? Agro-Im Mountaire Inc. v. covering a check costs of Goodrich sent S.A., (8th Cir.1982); pex, 677 F.2d All-State, has declined to repairs to State ex rel. Metal Service Center v. Ga In addi- forward the funds to Precision. ertner, supra at 327. The first claims, Precision tion to breach of contract law, one of state and the second is one of these mo- claims a tortious conversion of Light federal law. Iowa Electric & Power and also claims that All-State commit- nies 1301,1303 (8th Corp., Co. v. Atlas representing by telephone ted a fraud denied, 911, 100 cert. Sauget and mail that the belt was manufac- (1980); 63 L.Ed.2d 327 Moun when All-State knew

tured Goodrich Feeds, Impex, Agro taire Inc. v. su otherwise. pra. attempted on All-State Service diversity provi- action under the 1. THE STATUTORY LANGUAGE Act, Long-Arm sions of the Missouri necessary It is not for us to decide The district court 506.500 R.S.Mo.1978.1 question where this con the troublesome quashed appeals, service. Precision claim- com tract was made or whether defendant ing that All-State’s activities Missouri sections mitted a tortious act in because meet the test of the first three Act, namely, transaction of we hold that the defendant transacted busi business, any making any and ness within the State of Missouri. Gaertner, We re- the commission of a tortious act.2 ex rel. Metal Service Center verse, Supreme Court noted supra, in fairness to the District the Missouri but (3) service The commission of a tortious act within §1. 506.500. Actions in outstate state; is authorized this use, (4) ownership, possession of Any person The or whether or not a citi- or firm state; state, any corpora- any or zen or resident of this tion, real estate situated this person through agent person, (5) contracting any an does who in or to insure section, any acts enumerated state at property within this or risk located firm, corpo- thereby ration, and, person, submits such contracting. the time of individual, rep- personal if an his arising Only from acts causes of action resentative, jurisdiction of the courts of may be asserted enumerated in this section any of action this state as to cause action in which in an doing any acts: from the of such upon this sec- jurisdiction over him is based (1) The transaction of business tion. state; making any contract within this 1, supra. 2. See note state; the statutory language distinguishing intended the latter case. “Here Met provide “to spe- within the supplied al Service the raw materials and categories statutes, cific enumerated in the shipped them working by into Missouri for permitted to the full extent the due There, Roton. opinion shows, so as the far clause of Fourteenth Amend- Scullin obtained its materials raw from oth State, ment,” ex rel. Deere & Co. v. citing sources, er produced the ‘car sets’ as re Pinnell, (Mo.1970) (en S.W.2d quired by the and then shipped banc). Newport ex rel. See also v. State them to its in another customer state at the Wiesman, 874, (Mo.1982) 876 627 S.W.2d Id. at 328. The expense.” customer’s (en banc). apply same distinctions in the case at bar. large was borrowed in Missouri Act In Scullin the defend There are others. Illinois Act and the measure from the Uni- personnel ant had no office or in Missouri form International Interstate Proce- (in sharp All-State); contrast to defendant Act, generally dure called the Uniform a Pennsylvania Scullin officer to went to Act, Uniform 9B Laws Annot. (here negotiate the contract an All-State apply we The subsection which here is iden- representative by solicited Precision a com 103(a)(1) of the tical to Uniform Act and § munication addressed latter in Mis 110, 17(l)(a), Ill.Ann.Stat.1968, Ch. from souri). attempts All-State to distinguish See State ex rel. copied. which it was State ex rel. Metal Service Center v. Ga Weisman, Newport supra. “We have ertner, supra ground on the in the adopts held that when a state a statute of latter case work was on the another state the courts of the latter unfinished they materials after construed, state have such construction shipped into Missouri. cases have not adopted will be held to been with the interpreta drawn such a in their distinction Id. at 877. regard statute.” With to this “transacting tion any business” sub section, the Uniform Commissioners’ com- cases Singer leading section. One of is significant. provision ments are “This Walker, 443, 8, 15 N.Y.2d 261 N.Y.S.2d expansive given should be the same inter- denied, (1965), 209 N.E.2d 68 cert. pretation by intended that was the drafts- 905, 241, (1965), 86 S.Ct. 15 L.Ed.2d 158 a men given of the Illinois Act and has been Appeals decision of by the Court of New the courts of that state.” An Illinois closely shipped case is then cited York. The akin to Illinois defendant the facts geologist’s of the case at bar.3 hammer a New York to retailer who in plaintiff’s sold it to aunt New York. In Scullin Co. v. Steel Rail- National Connecticut, trip On a field to the hammer way Corporation, Utilization 676 F.2d damaged plaintiff’s eye. broke and New (8th Cir.1982), Judge McMillian, 309 a mem- long-arm York’s jurisdiction over the Illi ber panel, holding of this affirmed nois manufacturer sustained. “The district court South corpo- that a Carolina logic forcing expansive interpreta basic an principal place ration with its of business in company tion is that when a invades a state Pennsylvania “transacting any was not pecuniary gain prepared it should to agree business” in We Missouri. any Judge defend suit out of that ex rel. Blackmar’s remarks inva 4 Gaertner, supra, Metal Service Center sion.” Co., (W.D.Mo.1971), Distributing aff’d, Superior Berlemann v. 17 Ill. 1215 1998 522, (1958). Defendant, App.2d Cir.1972). N.E.2d corporation, a Colorado solicited and secured plaintiff Note, the Illinois orders for two vend Jurisdiction over Nondomiciliaries — New machines, ing 377, which were Law, into Illinois 51 Cornell L.Rev. York Civil Practice allegedly points and were defective. This case Paper v. Newton See also Ellis up the comment Hunter that Section (Sup.Ct.1964) 44 Misc.2d 253 N.Y.S.2d significantly 506.500 "has broadened the former holding for a case a defendant had transact ‘doing concept business’ of Missouri law.” J.F. shipping goods ed business in the state di Pritchard Co. v. Chemical Dow rectly there. business,8 expansive interpretation and domicile.9 The modern rule than Other Chief “transacting any was stated Justice Stone Inter- business” Ga given Wiesman, Washington, national we are cited Shoe U.S. supra,5 ertner 90 L.Ed. 95 in which the Missouri cases no requiring only “that subject in order interpreted has judgment personam, defendant to a if similar to a context subsection business” territory he be not is however an obtaining herein. There forum, he have certain minimum con- an intermediate expansive interpretation by tacts with it such that the maintenance of sustaining jurisdic appellate the suit does not offend ‘traditional notions Where a Texas in a situation. tion similar play justice’.” fair substantial through a sold distributor at 66 S.Ct. and adver equipment plaintiff electronic through distrib product literature tised activities of the While the Missouri, personal jurisdiction could uted rather International Shoe were substan- the busi obtained under tial,10 such cannot be said of v. McGee of the Act. ness” subsection 220, 355 International Ins. U.S. Life Intern, 618 S.W.2d Simpson Dycon v. 199, (1957) 2 78 S.Ct. L.Ed.2d 223 in which ex See rel. (Mo.App.1981). 455 also State the with were contacts the forum indeed Elliott, Industries, v. 560 Farmland minimal. The insured made an insurance (Mo.App.1977). “The Missouri 60 S.W.2d company contract with an Arizona whose the liberally construed statu Courts assets later a Texas com- were absorbed ‘transacting business’ tory requirement of pany. A was reinsurance certificate mailed purpose long- of insured, for the within the state residing who then was v. Nation jurisdiction.” California, Scullin Steel policy arm he the and continued supra Corp., only Railway company’s al Utilization force. He the Califor- 312, Wooldridge v. Beech nia the citing policyholder. After insured’s Aircraft (W.D.Mo. 1041, death, F.Supp. beneficiary 1053 a Corp., default 479 his obtained 1979); judgment per- & v. Dow Chemi a statute J.F. Pritchard Co. California under Canada, Ltd., F.Supp. 1215, mitting under these cir- 331 substituted service cal of (W.D.Mo.1971), F.2d 998 the aff'd, 462 cumstances. of 1218 judgment Cir.1972); held that the (8th Corp. American Hoechst v. full faith credit Texas. Laboratories, Inc., entitled to 332 241 Bandy (W.D.Mo.1970). placed upon Some limitations were soon jurisdictional a reach. Han- such broad II. THE ISSUE DUE PROCESS 1228, Denckla, 235, 78 S.Ct. son v. 357 U.S. require process due 2 1283 this limitation con- L.Ed.2d it is asserting jurisdiction requirement ment for over nonres sisted “that essential of a in each that be some act has evolved a re case there ident defendants consent,7 purposefully avails it- doing which the defendant quirement presence,6 Cox, Otto) 350, Wiesman, (16 Newport 106 U.S. 1 S.Ct. v. 627 7. Clair v. 5. In State ex rel. 354, Pawloski, (1882); (en banc) (Mo.1982) 222 274 27 L.Ed. Hess the court as- S.W.2d 874 632, (1927). 352, L.Ed. 1091 injury U.S. 47 S.Ct. 71 personal over aris- sumed a ing Georgia plane Plaintiff sued out crash. Kentucky, U.S. Harvester v. 234 International manufacturer, the a Delaware with 944, 579, (1914). 58 1479 34 S.Ct. L.Ed. place principal in Kansas. The its business in Missouri of the establishment held that 339, Meyer, 61 S.Ct. 9. Milliken v. purpose dealers for sales two franchise the (1940). 278 L.Ed. “transaction and service of aircraft constituted within State” within the business the employed salesmen Shoe International 506.500(1) meaning of R.S.Mo. They were Washington to solicit there. orders state, employees the residents full-time (5 Otto) Pennoyer Neff, U.S. 24 L.Ed. drawing from business substantial commissions employer. carried on for their conducting self privilege Corp. neering Engineering Co., activities Page state, (8th invoking Cir.1973). the forum thus F.2d 27 In that case the protection benefits of its laws.” Id. at contract made forum outside the state. performed at 1239. The court held It yet that was to be but had not personal jurisdic- not assert been Florida could in the forum state. The only tion Delaware as a over a trustee conse- other connection latter was quence probate of settlor’s will in that a defendant had sent a bid notice to Florida, she had plaintiff where moved from Penn- the office of in the forum state. sylvania, only when Delaware trustee’s These contacts held to be constitution- ally contacts with Florida were some routine sufficient. “The here is dealings by promise mail with performance the settlor. whether the of this obligation contract customized within the regard process issue, With the due provided forum state a substantial connec- past recognized this court has tion with state. We think it did.” Id. process easily would due be more estab- quoted at 31. The court McGee v. Interna- shipping lished over nonresident seller tional Ins. supra at as fol- Life goods into forum state contrasted lows: purposes “It is sufficient for of due buyer. As Judge with a nonresident Hea- the suit was based on a con- ney Corp. observed Electro-Craft tract which had substantial connection with Corp., Maxwell Electronics state.” 484 F.2d at 31. [the forum] “a nonresident seller subjects obligation twenty years itself of amena- For the “minimum con- bility right in return requirement suit for the to tacts” in this circuit has been compete for sales.” When nonresident tested the five factors delineated in ships goods seller into opinion is some- the landmark of Justice Blackmun what easier to find “an act in the v. Economy Company, Baler Aftanase (8th purposefully defendant itself of avails the 343 F.2d 187 delivered while privilege conducting of activities.” Han- he was of a member this court. “We ob- Denckla, serve, however, supra. Admittedly son v. the that at one time or another buyer-seller Supreme distinction is not the in opinions ultimate the the [of Court] requirement11 test of factors, namely, this but has primary been three the quantity significant. contacts, considered McQuay, See of the the and quality nature of contacts, Schlosberg, Samuel the and the course connection (D.Minn.1971).12 907-08 of contacts, the cause of action those with stressed, others, are and that two interest In necessary the case at bar it is not to convenience, of the forum state and receive decide whether the contract made in at primary mention.” Id. 197. The factors 506.500(1)(2) to Missouri so as fall within § activity are all satisfied the of the de- Mo.R.S. Without the contract fendant in the State of Missouri. While performed was to be and was in the secondary particular factors are of not Missouri. As Blackmar noted in significance, argued certainly it can that State ex Metal rel. Service Center v. Ga- shipment Missouri has an in interest the ertner, making supra: “The bare of a con- goods defective to a within its bor- location tract dent____ constitutionally is a sufficient inci- parties der. It is as convenient to for place performance The for total try in this case Missouri in Iowa. is, if anything, significant more than the place contracting.” In support argument pro- 328. This that due its significance satisfied, court has underlined the plaintiff-appellee cess was not place performance Engi- following Gardner cites the cases: Land-O-Nod Co. 11. See Ferer & Aaron Sons Co. v. sufficient "minimum nesota did not constitute Diversified (8th Cir.1977). Corp., 564 recognized Metals F.2d that a different contacts." The “goes when a into situation obtains sending 12. In this case court found that to transact business or sell his another state purchase to order a Minnesota for wares.” Id. at goods paid to be from for in Min- Industries, troversy arising Furniture from the defective convey- v. Bassett (8th Cir.1983); Defendant-appellee’s Toro belts. Co. v. Balias contacts F.2d Liquidating requirements Cir. here pro- satisfied the due 1978); Feeds, Agro- and Mountaire Inc. v. cess. Impex, supra. principal basis reversed, The order quashing service is jurisdiction denial of Land-O-Nod and the district court is directed exercise Industries, Nod su- v. Bassett Furniture litigation. this over case, pra, infringement a trademark allegedly infringing mat- none of the McMILLIAN, Judge, concurring Circuit in Minnesota. “As tresses were sold specially. case, Toro, it is the in the instant absence specially opinion I concur in the Land-O-Nod’s any connection between agree I majority opinion case. activity cause sales of action that the Missouri Court’s decision and Malone Minnesota Bassett Georgia, Metal Service Inc. v. Gaert- personal jurisdic- forces us to conclude ner, (Mo.1984)(en banc) 677 S.W.2d 325 lacking.” tion is Id. at As noted dispositive business” Liq- excerpt, Toro Co. Balias above Although issue I believe case. supra, shared same defi- uidating wrongly Metal Service held that the de- unwilling ciency. to assume The court was business, transacting fendant I none- corporation’s jurisdiction where the forum accept theless the state court’s must deter- unrelated the cause of activities “were mination of this issue. F.2d at 1270. this situa- action.” 572 have “no reason to tion defendant would expect be haled before the [forum court[s],” quoting state’s] Shaffer 186, 216,

Heitner, 572 F.2d at 53 L.Ed.2d ORTHMANN, Appellant, Owen these cases on which two factor only primary turned is not consideration issue; it is required of the due CAMPGROUND, INC., APPLE RIVER Missouri stat- Section 2 of the Inc., Camp, Floater’s Haven Somerset missing factor in ute.13 The those cases is Inc., Park, Inc., Float-Rite, Alice Incor- The cause of action arises here. Valley porated Sports Croix juris- on very transactions Club, Edge, River’s Somer- d/b/a shipment goods diction is based—the Community Village and the set Club performance of into Missouri in a contract Somerset, Park, Village Henri d/b/a of sale. Breault, Terrace Tubes and Aurel d/b/a Feeds, Inc. v. Agro-Impex, Mountaire Park, Cloutier, Individu- Sunrise d/b/a “a buyer, involved nonresident supra, Ventures, Appellees. ally and as Joint not a seller.” at 654. nonresident Id. No. 83-2519. There other differences. Moun- are Appeals, taire, agents employ- had no Eighth Circuit. Arkansas, no ees in and at time did All employee Arkansas. contact be- visit 13, 1984. Submitted June telephone. mail or parties tween 17, 1985. Decided June here only Not did defendant employees stationed two full-time employees came from Iowa but attempt to con-

into settle the jurisdiction over him 506.500(2) "Only ant in an in which R.S.Mo. action 13. Section reads: upon from acts enumerated section." causes of action is based may a defend- be asserted section

Case Details

Case Name: Precision Construction Co., and William R. Montgomery & Associates, Inc. v. J.A. Slattery Co., Inc., D/B/A All-State Belting Co., Inc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 13, 1985

Citation: 765 F.2d 114

Docket Number: 84-2623

Court Abbreviation: 8th Cir.