Perry v. Kempton

864 F. Supp. 37, 1994 U.S. Dist. LEXIS 13557, 1994 WL 518630
CourtDistrict Court, S.D. Ohio
DecidedSeptember 12, 1994
DocketNo. C-1-94-291
StatusPublished
Cited by3 cases

This text of 864 F. Supp. 37 (Perry v. Kempton) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry v. Kempton, 864 F. Supp. 37, 1994 U.S. Dist. LEXIS 13557, 1994 WL 518630 (S.D. Ohio 1994).

Opinion

ORDER DENYING MOTION TO DISMISS FOR Lack OF PERSONAL JURISDICTION OR IMPROPER VENUE

SPIEGEL, District Judge.

This matter is before the Court on Defendant Thomas J. Abramson’s (hereinafter [38]*38“Abramson”) Motion to Dismiss for Lack of Personal Jurisdiction (doc. 2), Defendants Thomas E. Kempton (hereinafter “Kemp-ton”) and the Kempton Group, Inc.’s (hereinafter “Kempton Group”) Motion to Dismiss for Improper Venue (doc. 3), Plaintiffs Memorandum in Opposition to Defendant Abram-son’s Motion to Dismiss (Doc. 7), Plaintiffs Memorandum in Opposition to the Defendants, Mr. Kempton and the Kempton Group’s, Motion to Dismiss (doc. 9), Defendant Abramson’s Reply Memorandum (doc. 10), and Defendants, Mr. Kempton and the Kempton Group’s, Reply Memorandum (doc. 12).

Finally, we note that the Plaintiff has filed a Motion to Strike Mitchell B. Goldberg’s affidavit (doc. 15) to which the Defendant has not replied. In the interest of justice, we DENY the Plaintiffs motion. In reaching our decision below we have considered Mitchell Goldberg’s affidavit and have given it the appropriate weight.

BACKGROUND

The Plaintiff, Lori Jane Perry, is a resident of the State of Texas, Defendant Thomas J. Abramson is a resident of California, and Defendants Thomas E. Kempton and the Kempton Group, Inc. are residents of Ohio. The Plaintiff filed this suit alleging that the Defendants committed a fraud against her.

Mr. Abramson, Vice-President of Ice Capades, hired the Plaintiff to secure a sponsor for his company. The Plaintiff alleges that she established a contact with L’eggs Products, Inc. (hereinafter “L’eggs”) between 1986 and 1990 and that in his capacity as Vice-President, Mr. Abramson, then granted her the exclusive right to represent Ice Capades in negotiations with L’eggs on October 15, 1990. The Plaintiff contracted to receive 20% of the 3.5 million dollar sponsorship contract with L’eggs. Mr. Abramson and the Kempton Group, however, allegedly tortiously and fraudulently interfered with Plaintiffs signing with L’eggs, and thereafter allowed her contract to terminate and appropriated her commissions. Plaintiff then filed this lawsuit alleging that the Kempton Group, Mr. Kempton and Mr. Abramson tortiously interfered with her contract with Ice Capades to obtain a sponsor.

Plaintiff claims that Mr. Abramson, a California resident, is subject to personal jurisdiction in Ohio. She maintains that since Mr. Abramson paid the Kempton Group, an Ohio corporation, and retains the Kempton Group for consulting, he does business in Ohio, and that the fraudulently procured money was transferred into Ohio, and thus, that is where the fraud occurred. Additionally, the Plaintiff asserts that venue is proper in the Southern District of Ohio because that is where the Defendants allegedly conspired to interfere in Plaintiffs procurement of L’eggs sponsorship.

DISCUSSION

1. Personal Jurisdiction

For a court to properly exercise personal jurisdiction over an out-of-state defendant, the court must first determine whether the exercise of personal jurisdiction is permitted under the long arm statute of the forum state. In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 224 (6th Cir. 1972), see also Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Ohio Rev.Code § 2307.382(A)(1), (3) (1988). If so, the court must also determine whether the extension of such jurisdiction violates notions of fair play encompassed by the due process clause of the Fourteenth Amendment. Id. See also International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In Ohio “our real task is simpler since we can conclude that the Ohio legislature intended to extend the jurisdiction of its courts to the Constitutional limits____” In-Flight Devices, 466 F.2d 220, 224 (1972).

The Plaintiff has the burden of establishing that the court has personal jurisdiction by the preponderance of the evidence. American Greetings Corp. v. Cohn, 839 F.2d 1164, 1168 (6th Cir.1988). The Plaintiff has succeeded in meeting this burden through her pleadings, affidavits and the preliminary hearing. Accordingly, we find that Mr. Abramson is subject to the jurisdiction of this Court.

[39]*39According to the Ohio Long Arm Statute, the Plaintiff must show that the claim arose out of a transaction of business within the state or from tortious conduct that occurred in the state. Ohio Rev.Code § 2307.382(A)(1), (3) (1988). Because we find that the Defendants carried out the acts that are alleged to constitute a conspiracy to defraud in Ohio, we need not decide whether a specific transaction of business occurred in Ohio.1 Id. at § 2307.382(A)(3). The Plaintiff alleges that Mr. Abramson conspired with Mr. Kempton and the Kempton group, both Ohio residents, to tortiously interfere with her contract with Ice Capades and her procurement of L’eggs sponsorship. Plaintiffs allegations are supported by an affidavit of one of the former Kempton Group employee’s, Pamela Reed, who indicates that Mr. Abramson was receiving money in checks made out to him from the Kempton group in 1991-92, when the Kempton Group was an Ohio Corporation with its principal place of business in Ohio. While the checks going from Ohio to California alone may not confer jurisdiction upon an Ohio court, the fact that they allegedly furthered a conspiracy to defraud the Plaintiff does make Mr. Abramson subject to this Court’s jurisdiction.

The Plaintiff has also satisfied the due process requirements of the Fourteenth Amendment. The Sixth Circuit has developed an approach to the application of the Ohio Long Arm Statute that is consistent with the due process analysis of International Shoe. Priess v. Fisherfolk, 535 F.Supp. 1271, 1273 (S.D.Ohio 1982). In doing so the Sixth Circuit established a three-part test. First; the defendant must purposefully avail himself of the privilege of acting in the forum state or of causing a consequence in the forum state. Next, the cause of action must arise from the defendant’s contact with the forum state. Third, the defendant’s activities or consequences must have substantial connection with the forum state so as to make the exercise of jurisdiction over the defendant reasonable. See National Can Corp. v. K Beverage Co., 674 F.2d 1134, 1137-38 (6th Cir.1982) (citing Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.1968)).

All three parts of the Sixth Circuit test are satisfied. Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
864 F. Supp. 37, 1994 U.S. Dist. LEXIS 13557, 1994 WL 518630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-kempton-ohsd-1994.