*1 unexpected and unex- it in an not exercise
plained manner. though simplistic,
Still, single, there is today’s It quality in decision.
meritorious easy for all to understand.
should be action, 54(b) final
Without a this court can stand before practitioner
no that his say he didn’t understand pointed I out in premature. As
appeal was cer- procedure generally,
Regstad, “[f]or important than cor-
tainty more [can be] bright apply line to
rectness.” It is a appeal judg- to all finality
doctrine exception. and orders without
ments certainty is Regstad, I said in “since
As make, I choice we important
more than the holding,” 433 N.W.2d at
acquiesce in the bring more though expect I it to even solving. than we think we are
problems ACCOUNTS, INC., Bismarck,
UNITED Appellee, Plaintiff
North QUACKENBUSH, Defendant
Daniel Appellant. 880118.
Civ. No. of North Dakota.
Supreme Court
Jan.
Quackenbush responded by serving United special with a notice of appearance and a dismiss, motion asserting to that the dis- trict court lacked him because he was a California resident. 14, 1987, July On Quack- United served enbush with a note of issue and certificate of readiness pretrial which stated that all of, motions had disposed been that the case ready trial, for trial as a bench and pleadings that all filing attorney had been filed Quack- with the clerk of court. enbush then filed with the court his notice special appearance, of the motion to dis- miss, a nonreadiness, certificate of and oth- Quackenbush er materials. asserted certificate of nonreadiness pretrial that his Severin, Bismarck, William C. plain- for of, motion had not disposed been that the tiff appellee. and case ready was not for a bench trial be- trial, cause he jury wanted a Quackenbush, that his Cal., Daniel Lompoc, pro response being “is specially se. and not generally and defendant does not submit ERICKSTAD, Chief Justice. himself court, to the of this but only preserve rights to Quackenbush appeal his Daniel if that appeals from a dis- necessary.” Quackenbush trict court becomes holding him liable to also Accounts, United [United], argued Inc. for the court that the reason he had $2,554.28. part, We affirm in reverse not filed an answer or against part, and remand proceedings. for further United was because the court yet had not ruled on his motion to dismiss. 27, 1984, July Quackenbush
On applied for Mastercard and Visa credit cards from August On the court denied First of Omaha Corporation. Service At Quackenbush’s motion to dismiss. In its time, Quackenbush lived Killdeer order, the court further stated: and had employed been with the Dunn repre- Defendant is not “[BJecause County Department Sheriffs April since sented attorney practice licensed to remained em- law within the State of North Dakota ployed Department with the Sheriffs may not have known his obli- was a resident County of Dunn until Janu- gation timely to file an Answer or other ary 1987. The pur- record reflects that appropriate response to the Complaint, chases were made in North Dakota with the Court in the exercise of its discretion both credit cards before ulti- and on its own Motion Orders as follows: mately Lompoc, moved to California. “1. The Defendant will be allowed 20 April In First of Omaha Service days from the date hereof within which Corporation assigned its claims to file an asserting Answer whatever unpaid for pur- credit card defenses he allegations have to the United, chases to brought this action Complaint. allegedly collect $625.79 owed on his permit- The Defendant will not be $1,228.57 Mastercard allegedly account and “2. ted to file account, counterclaim or a along owed on his Visa demand with inter- trial, jury est. An amended summons the time for exercise complaint upon Quackenbush were rights long served both of certi- those has since May fied mail on Lompoc. passed.” 1987 in law, process in which he or the due Quackenbush filed an answer under one or following person- more of the court had no circumstances: again claimed the trial him. The answer also “(A) transacting al any business in this state;” refusals to al- objected to the trial court’s him trial and file low to demand 4(b)(2), “long-arm” North Dakota’s *3 against The answer United. provision, codification principles is a of the of ac- the merits United’s did not address announced in International Shoe Co. v. against him. did not tion 310, 316, Washington, State 326 U.S. 66 of trial, was held appear at the bench which 154, 158, (1945), 90 L.Ed. in S.Ct. February The trial court con- 1988. that, Supreme the United States Court held par- jurisdiction that it had the cluded process requires only “due that in order to action, finding “[tjhat the ac- ties to the subject to a per- a defendant in form the basis of this action counts which sonam, present if he not be within the by incurred the were contracted for and forum, territory of the he have certain min- charged against or his accounts defendant imum contacts with it such that the mainte- County, in Dunn North permission with his nance of the does offend suit not ‘tradition- of Dunn he was a resident while play jus- al notions of fair and substantial ” The court further found that County....” [Quoting Meyer, tice.’ Milliken v. 339, 343, credits have been payments “no or other U.S. 61 S.Ct. 85 L.Ed. against (1940) 4(b)(2) ac- by “designed the defendant the Rule to was ]. permit personal Judgment was entered the state courts to exercise counts....” jurisdiction to the fullest extent Quackenbush in the amount of against permitted by process.” due Hebron Brick v. $2,554.28. Quackenbush appealed, Co. has as- Co., Robinson Brick & Tile 234 N.W.2d personal lacked serting that the trial court (footnote omitted). (N.D.1975) trial jurisdiction over him and that the refusing in to allow him to file court erred Inc., Log, In 297 N.W. Hust Northern jury trial a demand for and counterclaim. (N.D.1980), 2d that a we noted inquiry required
two-fold
is
to resolve a
question
under this
PERSONAL JURISDICTION
rule:
that the trial
asserts
“First, it
determined if the re-
must be
him
personal
court lacked
subpara-
quirements
applicable
he is not a North Dakota resident
because
4(b)(2),
in
graphs contained Rule
N.D.R.
North Dakota
and was not “found within”
Civ.P.,
Secondly, it
have been satisfied.
4(b)(1),
required by
Rule
N.D.R.Civ.P.
necessary
is
to determine whether
not
properly
asserts that the trial court
United
party has had such con-
the nonresident
jurisdiction because
personal
exercised
that the exer-
tact with the forum State
using
credit
in
Quackenbush, by
cards
personal jurisdiction over the non-
cise of
resident,
he
was
this state while
against the
not offend
tra-
resident does
effectively transacting business
this
justice
play
and fair
ditional notions of
4(b)(2)(A),
meaning
of Rule
state within
process of
concept of due
law.”
under
agree with United.
N.D.R.Civ.P. We
Therefore,
first consider whether
4(b)(2)(A),provides:
credit cards in
use
can
considered
“(2)
the state while a resident
be
Based
Personal
Jurisdiction
this
“transacting any
state.”
A
of this state
business
Upon
court
Contacts.
4(b)
adapted
language of Rule
personal
over a The
exercise
contained in
agent
long-arm proposals
directly
byor
an
from the
person who acts
International
Interstate and
arising from the
the Uniform
any claim for relief
as to
Act,
Procedure
person’s having such contact with this
U.L.A.Civ.Proc.
1.03,
(1986).
p.
at
361-362
personal juris- Rem.Laws
that the exercise of
state
§
4, N.D.R.
Note to Rule
Explanatory
offend
him does not
See
diction over
p.
Civ.P.,
Rules at
play
North Dakota
justice
notions of
or fair
Court
traditional
(West 1988); Hebron Brick
v. Robin-
that he could not
Co.
be found to be transact-
Co., supra. According
ing
son Brick & Tile
business unless it was shown he used
Act,
the Comment to the Uniform
purposes,
the credit cards for his business
in this state”
“transacting any
i.e.,
enforcement,
business
argu-
law
we believe
provision
given
“expansive
should be
attempts
impose
ment
an unwarranted
interpretation” by the courts. 13 U.L.A.
meaning
“transacting
restriction on the
Rem.Laws, supra,
p.
at
Civ.Proc. and
state,”
contrary
business in this
to the
expansive interpretation
intended
Appeals’
The Louisiana Court of
decision
provision’s
“Transacting
drafters.
busi-
Sears,
Ballard,
Roebuck & Co. v.
concept
ness” is a much broader
than that
(La.Ct.App.1987),
So.2d
instructive.
envisioned
the earlier restrictive term
Ballard,
brought
plaintiff
In
a suit in
“doing business.”
E.g., Wichman v.
$2,532.20
Louisiana to recover
for the non-
*4
121,
Hughes,
294,
248 Ark.
450 S.W.2d
payment
charge
of the defendant’s Sears
(1970). Moreover, Quackenbush’s argu-
applied
account. The defendant
for and
illogical
ment would lead to the
conclusion
granted
credit in
1982 and
December
goods
that while a seller of
transacts busi-
purchases
payments
made numerous
and
sale,
through
ness
a
buyer
the
of those
up
April
the account
until
1985. The de-
goods
transacting
same
is not
business
fendant had been a resident of Louisiana
through
purchase.
Harry Win-
August
until
1985 when he moved to Tex-
Cf.
ston,
473,
Waldfogel,
P.Supp
Inc. v.
as. The suit
filed in Louisiana in
(S.D.N.Y.1968).
481-482
We conclude that
plaintiff
per-
March 1986 and the
claimed
Quackenbush’s use of the credit cards falls
sonal
over the defendant based
“transacting any
within the ambit of
busi-
upon
long-arm
the Louisiana
statute which
ness within this
state”
under Rule
similarly permitted the court to exercise
4(b)(2)(A),N.D.R.Civ.P.
a
nonresident as
arising
ato
cause of action
from the non-
We further hold that the exercise of
“transacting any
in
resident
business
jurisdiction under the circumstances of this
Ballard, supra,
state.”
We believe
circumstances
a demand
writing
“at
time after the commence-
court to
for North Dakota
reasonable
ment of the action
not later than 10
residing and us-
jurisdiction. By
exercise
days
pleading
the service of
after
the last
state, Quacken-
ing the credit cards in this
38(b),
directed to such issue.” Rule
N.D.R.
protections and
chose to invoke the
bush
Civ.P.
con-
of North Dakota law. These
benefits
he
nections with the state are such that
case,
In this
did not
trial court
anticipated
have
that he could be
should
deny
un
motion to dismiss
Furthermore,
residency and
here.
his
sued
August
til
1987. Under the clear terms
taking
ac-
physical presence while
these
12(a), Quackenbush
of Rule
was entitled to
adju-
give North Dakota an interest
tions
serve his answer
counterclaim within
dispute. Accordingly,
con-
dicating this
he
days
after
notice of the
received
Bales,
trial
properly
clude that the
court
exercised
court’s action. See
58 F.R.
Jones
(N.D.Ga.1972),
aff'd,
in D.
480 F.2d
personal jurisdiction over
Cir.1973);
(5th
United States v. Chel
this case.
Towers, Inc.,
F.Supp.
sea
(D.N.J.1967);
Plastics,
Sweetheart
Inc. v.
AND
JURY DEMAND
Works,
Inc.,
F.Supp.
Tool
Illinois
COUNTERCLAIM
*5
(N.D.Ill.1968). Furthermore,
64
under
Quackenbush
the trial court
asserts that
38(b), Quackenbush
Rule
also entitled
refusing to
him to file a
erred in
allow
jury
by
to demand a trial
on United’s action
jury trial
demand for
and a counterclaim.
days
10
not later than
after the service of
agree.
We
his answer
counterclaim. See Dasho v.
Generally, a defendant must serve
11,
Corporation, 461 F.2d
Susquehanna
answer,
may
which
include a counter
Cir.),
925,
(7th
denied,
cert.
408 U.S.
13(a), N.D.R.Civ.P.], within 20
claim
2498,
(1972).
[Rule
for proceedings Quacken- further in which
bush will be allowed to file an answer and
counterclaim and demand a trial under requirements provided time
Rules.
GIERKE, WALLE, VANDE LEVINE MESCHKE, JJ., concur.
MESCHKE, Justice, concurring. 40(b)(1)requires
NDRCivP that the cer- certify,
tificate of readiness “to the best
knowledge and belief of filing attor- “(C)
ney," (my emphasis), pretrial That all of,”
motions disposed among have been things.
other puzzled I am how counsel
for United in this case could have filed a
“certificate of readiness which stated that pretrial of,”
all disposed motions have been
as summarized in Chief Justice Erickstad’s
opinion for this court. mo-
tion to personal jurisdic- dismiss lack of
tion pending. disposition Without permitted motion further plead- before
ings, it is difficult to understand how coun-
sel could certify also issues are “[t]hat
joined respects and the ready case all trial,” 40(b)(1)(A) requires. NDRCivP
These inaccurate certifications have
misled this trial court into its erroneous
ruling rights to file a
demand for a and to file a counter-
claim.
STATE of North Plaintiff Appellee, SAUL,
Douglas Jay Defendant Appellant.
Cr. No. 880157.
Supreme Court of North Dakota.
Jan.