New Dawn Natural Foods v. Natural Nectar Corp.

670 F. Supp. 869, 1987 U.S. Dist. LEXIS 9147
CourtDistrict Court, E.D. Missouri
DecidedOctober 9, 1987
Docket86-2145C(6)
StatusPublished
Cited by3 cases

This text of 670 F. Supp. 869 (New Dawn Natural Foods v. Natural Nectar Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Dawn Natural Foods v. Natural Nectar Corp., 670 F. Supp. 869, 1987 U.S. Dist. LEXIS 9147 (E.D. Mo. 1987).

Opinion

670 F.Supp. 869 (1987)

NEW DAWN NATURAL FOODS, INC., Plaintiff,
v.
NATURAL NECTAR CORPORATION, et al., Defendants.

No. 86-2145C(6).

United States District Court, E.D. Missouri, E.D.

October 9, 1987.

*870 Michael Hardcastle, St. Louis, Mo., for plaintiff.

Melvin R. Neisner, Jr., LaTourette, Weyerich, Schlueter & Burne, Robert O. Appleton, Jr., Appleton, Newman & Gerson, St. Louis, Mo., for defendants.

ORDER AND MEMORANDUM

GUNN, District Judge.

IT IS HEREBY ORDERED that defendant Natural Nectar Corporation's motions to dismiss for lack of personal jurisdiction, for improper venue and failure to state a claim are denied.

IT IS FURTHER ORDERED that defendant's motion for transfer pursuant to 28 U.S.C. § 1404(a) is denied.

Plaintiff's first amended complaint for breach of contract alleges the following facts:

Plaintiff New Dawn Natural Foods, Inc. (New Dawn), a Missouri corporation, ordered 12,960 "Cream Freeze" frozen dessert bars from defendant Natural Nectar Corp. (Natural Nectar), a Colorado corporation, for delivery by July 2, 1986. Plaintiff required delivery by July 2nd because the dessert bars were to be sold at plaintiff's booth at the VP Fair July Fourth celebration in St. Louis, Missouri on July 4th, 5th and 6th. Natural Nectar contracted with defendant FFE Transportation Services, Inc. (FFE), a Texas corporation, to deliver the Cream Feezes to plaintiff by July 2, 1986. Natural Nectar's invoice and bill of lading gave plaintiff's delivery address as "3175 S. Grand Blvd., St. Louis MI 63118" erroneously abbreviating Missouri as MI instead of MO, and FFE sent the Cream Freezes to St. Louis, Michigan. On the afternoon of July 3, 1986 FFE's driver arrived at FFE's office in Chicago, Illinois with the entire shipment of Cream Freezes after attempting to deliver the shipment to St. Louis, Michigan. FFE's driver did not reach St. Louis, Missouri until the afternoon of the 4th at which time plaintiff could not take delivery. FFE's driver left St. Louis, Missouri without delivering the Cream Freezes.

Plaintiff seeks $100,000 consequential and incidental damages from Natural Nectar for breach of its contract with plaintiff and against FFE for breach of its contract with Natural Nectar and for failure "to make delivery of the goods when the shipment finally arrived in St. Louis, Missouri."

*871 Now under consideration are Natural Nectar's motions under Rule 12(b)(2), Fed. R.Civ.P. to dismiss the complaint against it for lack of personal jurisdiction, under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, under Rule 12(b)(3) to dismiss the complaint by reason of improper venue or, in the alternative, to transfer the case to the Federal District Court in the Southern District of California pursuant to 28 U.S.C. § 1404(a).

Personal Jurisdiction

In considering a motion to dismiss for lack of personal jurisdiction over a non-resident defendant, a federal diversity court is required to engage in a two-step inquiry: first, whether defendant committed one of the acts enumerated in the forum state's long-arm statute; and second, whether defendant had sufficient contacts with the forum state related to the cause of action such that maintenance of the suit does not offend the due process clause of the fourteenth amendment. The Land-O-Nod Co. v. Bassett Furniture Industries, Inc., 708 F.2d 1338 (8th Cir.1983); Scullin Steel Co. v. National Ry. Utilization Corp., 676 F.2d 309, 312 (8th Cir.1982). Plaintiff has the burden of establishing that jurisdiction exists, and this burden may not be shifted to the party challenging the jurisdiction. Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 653 (8th Cir.1982). Although the facts are viewed in the light most favorable to the plaintiff, "there must nonetheless be some evidence upon which a prima facie showing of jurisdiction may be found to exist...." Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir.1977) (citations omitted).

The first part of the inquiry requires an examination of the long-arm statute. Missouri's long-arm statute provides in pertinent part:

1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this state;
(2) The making of any contract within this state.

Mo.Rev.Stat. § 506.500 (Supp.1984).

In State ex rel. Metal Service Center of Georgia, Inc. v. Gaertner, 677 S.W.2d 325 (Mo. banc 1984), the Missouri Supreme Court noted that Missouri's long-arm statute "provide[s] for jurisdiction within the specific categories enumerated in the statute, to the full extent permitted by the due process clause of the Fourteenth Amendment" (citing State ex rel. Deere & Co. v. Pinnell, 454 S.W.2d 889 (Mo. banc 1970)). Missouri courts liberally construe the statutory requirement of "transacting business" within the state for the purpose of long-arm jurisdiction. Scullin Steel Co. v. National Railway Utilization Corp., 676 F.2d 309 (8th Cir.1982). The rationale for this expansive interpretation is that when "a company invades a state for pecuniary gain it should be prepared to defend any suit arising out that invasion." Precision Construction Co. v. Slattery, 765 F.2d 114, 116 (8th Cir.1985). A corporation may be subject to long-arm jurisdiction even though it would not be required to qualify to do business as a foreign corporation. State ex rel. Newport v. Wiesman, 627 S.W.2d 874 (Mo. banc 1982). The business may consist of a single transaction, if that is the transaction sued upon. State ex rel. Metal Serv. Center, 677 S.W.2d at 325.

In the present case, the following factual allegations support this Court's exercise of personal jurisdiction over defendant Natural Nectar:

"... New Dawn directed its agent, Akin Southwest Distributors, Inc., to order 12,960 Cream Freeze frozen dessert bars from defendant Natural Nectar. Upon receiving the order, Natural Nectar agreed to deliver 12,960 Creem Freezes to New Dawn in St. Louis, Missouri by July 2, 1986."

"... Natural Nectar prepared New Dawn's order of Cream Freezes for shipment to St. Louis, Missouri.... defendant Natural Nectar contacted defendant FFE *872

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670 F. Supp. 869, 1987 U.S. Dist. LEXIS 9147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-dawn-natural-foods-v-natural-nectar-corp-moed-1987.