Moran Pipe & Supply Co. v. Schwartz

680 F. Supp. 1499, 1988 U.S. Dist. LEXIS 4102, 1988 WL 20259
CourtDistrict Court, E.D. Oklahoma
DecidedMarch 9, 1988
DocketNo. 87-399-C
StatusPublished
Cited by1 cases

This text of 680 F. Supp. 1499 (Moran Pipe & Supply Co. v. Schwartz) is published on Counsel Stack Legal Research, covering District Court, E.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moran Pipe & Supply Co. v. Schwartz, 680 F. Supp. 1499, 1988 U.S. Dist. LEXIS 4102, 1988 WL 20259 (E.D. Okla. 1988).

Opinion

ORDER

H. DALE COOK, Chief Judge.

Now before the Court for its consideration is the motion to dismiss this action for lack of in personam jurisdiction and for improper venue, pursuant to F.R.Cv.P. 12(b)(2) and (3), brought by the defendants, Louis Schwartz (Schwartz), Louis Schwartz’ Railwater Terminal Co., Inc. (Railwater), Norman Thompson (Thompson) and Ben Lomond, Inc. (Lomond). Plaintiff Moran Pipe and Supply Company based jurisdiction upon diversity of citizenship between the parties, as provided in 28 U.S.C. § 1332. Plaintiff alleges that it is a citizen of Oklahoma, that defendants Schwartz and Railwater are citizens of Washington, and that defendants Thompson and Lomond are citizens of Alaska and Utah, respectively. Defendants do not deny the diversity of citizenship, but contend they do not have “minimal contacts” within Oklahoma to justify this Court’s exercise of in personam jurisdiction over them.

An agreement for the sale of used pipe is the transaction in issue here. The parties agree that the plaintiff’s president telephoned Schwartz, the president of Railwater, on March 5, 1987, to discuss the plaintiff’s purchase of the pipe from Railwater. The telephone call was initiated at the plaintiff’s offices in Seminole, Oklahoma and received at Railwater’s offices in Seattle, Washington. On March 9, 1987, plaintiff sent Railwater a letter, allegedly setting forth the terms of the agreement, for Schwartz’ review and signature, if he agreed to the terms in the letter. Schwartz signed his assent to the terms set forth in the letter on March 13, 1987. The letter provided price and quantity of pipe terms, but did not state the manner in which payment for the pipe was to be made. On March 9, 1987, plaintiff sent its cheek in the amount of $10,000. to Railwater, which plaintiff alleges was a partial payment for the pipe. Schwartz admits receiving that check, cashing it, and retaining the funds. Plaintiff also sent Railwater a check in the amount of $10,000. on April 9, 1987, also allegedly in partial payment for the pipe. Schwartz likewise admits receiving that check, cashing it, and retaining those funds.

Certain facts are disputed by the parties. Most critically, the plaintiff contends that Schwartz made the initial contact with the plaintiff’s president in February, 1987, to advise him of the availability of the used pipe and to see if the plaintiff was interested in purchasing some of the pipe. Plaintiff states that it sent one of its employees to inspect the pipe in Alaska on March 2, 1987, in response to the February contact by Schwartz, and that the telephone call to Schwartz and Railwater was made only after the plaintiff’s employee had inspected [1501]*1501the pipe. Defendants deny plaintiff’s contention, asserting that they have not solicited any business in Oklahoma, and that plaintiffs president learned of the availability of the pipe through other industry sources, rather than by Schwartz’ contacting him. Plaintiff points to two prior business dealings with Railwater and Schwartz as evidence of an ongoing business relationship between plaintiff and Railwater. Defendants characterize these prior dealings as “isolated” transactions, having no connection to one another or to the agreement now at issue.

On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of proof, rather than the movant. Behagen v. Amateur Basketball Ass’n of U.S.A., 744 F.2d 731, 733 (10th Cir.1984); Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir.1982). To determine whether personal jurisdiction should be exercised, a court may receive and weigh affidavits of the parties prior to trial on the merits. O’Hare International Bank v. Hampton, 437 F.2d 1173, 1176 (7th Cir.1971). However, if the issue of jurisdiction raised by a motion to dismiss is to be decided on the basis of affidavits submitted by the parties, the plaintiff is required to make only a prima facie case of jurisdiction, rather than proving jurisdiction by a preponderance of the evidence. See Behagen, 744 F.2d at 733; Wyatt, 686 F.2d at 280; Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir.1980). Where the affidavits conflict upon facts bearing upon the issue of jurisdiction, the disputed facts are to be resolved in favor of the plaintiff. See Behagen, 744 F.2d at 733; Nelson by Carson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir.1983); Wyatt, 686 F.2d at 280.

In the present action, plaintiff and defendant Schwartz have submitted affidavits to the Court. The plaintiff’s president’s affidavit states that Schwartz, on behalf of Railwater, initiated contact with him in Oklahoma to advise him of the availability of the used pipe and to inquire of plaintiff’s interest in the pipr. Schwartz’ affidavit denies that Schwartz or Railwater have solicited any business in Oklahoma or that Schwartz contacted the plaintiff’s president. In light of the above-cited case law, the Court must take the facts as presented by the plaintiff’s affidavit to be true. The question then to be considered is whether the plaintiff thus has stated sufficient facts to make a prima facie case for this Court to exercise personal jurisdiction over the defendants under the applicable state long-arm statute.

In determining whether personal jurisdiction exists over a nonresident defendant in a diversity action, the court applies the law of the forum state; in this case, Oklahoma law controls. Oklahoma’s most recent version of a long-arm statute is found as tit. 12, Okla.Stat., § 2004(F) (Supp.1984); it provides merely that “[a] court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States.” The previous long-arm statutes, formerly found at tit. 12, Okla.Stat., § 187 and § 1701.03, while enumerating the bases for an Oklahoma court’s exercise of jurisdiction, were similarly interpreted by the Oklahoma Supreme Court as being intended to allow the reach of personal jurisdiction of the Oklahoma courts to the outer limits permitted by the due process clause of the United States Constitution. See Glidewell Motors Inc. v. Pate, 577 P.2d 1290, 1291 (Okla.1978). Given the broad exercise of jurisdiction permitted under the Oklahoma long-arm statutes, the Court still must ascertain whether the exercise of jurisdiction under those statutes would violate due process.

The constitutional limits of jurisdiction over nonresident defendants have been delineated by the United States Supreme Court in a series of cases. In International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Court stated that “due process requires only that in order to subject a defendant to a judgment in personam,

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Cite This Page — Counsel Stack

Bluebook (online)
680 F. Supp. 1499, 1988 U.S. Dist. LEXIS 4102, 1988 WL 20259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moran-pipe-supply-co-v-schwartz-oked-1988.