Premium Financing Specialists, Inc. v. Greater New York Mutual Insurance

136 F.R.D. 175, 1991 U.S. Dist. LEXIS 5757, 1991 WL 66007
CourtDistrict Court, W.D. Missouri
DecidedApril 29, 1991
DocketNo. 90-0675-CV-W-6
StatusPublished
Cited by1 cases

This text of 136 F.R.D. 175 (Premium Financing Specialists, Inc. v. Greater New York Mutual Insurance) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Premium Financing Specialists, Inc. v. Greater New York Mutual Insurance, 136 F.R.D. 175, 1991 U.S. Dist. LEXIS 5757, 1991 WL 66007 (W.D. Mo. 1991).

Opinion

MEMORANDUM AND ORDER

SACHS, Chief Judge.

On October 22,1990, this court dismissed plaintiff’s cause of action for lack of personal jurisdiction over the defendant. Plaintiff claimed that jurisdiction was founded on the creation of a contract and the commission of a tort within Missouri; however, the facts established that the contract at issue in this case was created in New York and that plaintiff’s count for conversion was in reality a claim based on amounts owing under a contract, a set of facts not recognized as conversion by Missouri courts. Plaintiff filed a motion for reconsideration on November 1, 1990, which was denied on February 7, 1991. Presently pending before the court is defendant’s motion for sanctions. Defendant maintains that plaintiff had no basis in either fact or law for asserting jurisdiction over defendant, and it is thus entitled to attorney’s fees pursuant to Rule 11 of the Federal Rules of Civil Procedure.

Rule 11 makes sanctions mandatory when an attorney did not make a reasonable inquiry into the facts and law before filing a pleading, paper, or motion, but it is within the district court’s judgmental duties to determine whether a violation of the rule has occurred, and to what degree. O’Connell v. Champion Int’l Corp., 812 F.2d 393, 395 (8th Cir.1987). Rather than judging the attorney’s conduct with the benefit of hindsight, the court should [177]*177evaluate such actions based upon what was objectively reasonable under the circumstances. Cruz v. Savage, 896 F.2d 626, 631 (1st Cir.1990). The court must not judge the attorney’s actions too harshly, so as to avoid the risk of chilling zealous advocacy on behalf of clients. White v. General Motors Corp., 908 F.2d 675 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 788, 112 L.Ed.2d 850. Using these standards, therefore, this court must determine whether plaintiff reasonably assured itself that both the contract and conversion counts were well grounded in fact and warranted either by existing law or arguable concepts prior to asserting jurisdiction over defendant and filing the complaint.

Plaintiff first attempted to base jurisdiction on the creation of a contract in Missouri, claiming that although defendant signed the contract in New York, acceptance did not occur until plaintiff was notified of this acceptance in Missouri. The court eventually found that the contract was in fact entered into in New York, as it was not a condition of acceptance that plaintiff be notified in Missouri; however, I do not find that plaintiff’s theory was patently unreasonable. The face of the contract documents indicates that defendant was to return a copy “acknowledging ... acceptance”; it thus seems plausible that plaintiff’s attorney could have argued for a theory that the documents had to be returned before there, was a binding contract, particularly in light of the fact that other contracts plaintiff executed required notification. See Plaintiff’s Exhibit A.

An attorney is entitled to rely on a client’s factual claims as long as those claims are objectively reasonable. Calloway v. Marvel Entertainment Group, Div. of Cadence Industries Corp., 854 F.2d 1452 (2nd Cir.1988), cert. denied, 489 U.S. 1009, 109 S.Ct. 1116, 103 L.Ed.2d 179 (1989). Creative legal advocacy is more to be commended than censured.1 Furthermore, plaintiff’s authority supported a position that notification of acceptance can be an essential term of a contract. See Lon-doff v. Conrad, 749 S.W.2d 463 (Mo.App. 1988); Thacker v. Massman Construction Co., 247 S.W.2d 623 (Mo.1952). Even though this court found that notice was not essential in this case and that the argument was rather far-fetched, it was within reason for counsel to contend otherwise. Simply because plaintiff made a losing argument does not justify the imposition of sanctions.

In ruling on defendant’s motion to dismiss, the court concluded that Missouri law prevented the plaintiff from stating a conversion claim for amounts owing under a contract. Although Missouri courts generally prohibit the recovery of a general debt under a conversion theory, State ex rel. Ranni Associates v. Hartenbach, 742 S.W.2d 134 (Mo. banc 1987), an exception is recognized when funds are delivered into the hands of another for a specific application and are later misappropriated and diverted to a different purpose. Hall v. W.L. Brady Investments, Inc., 684 S.W.2d 379 (Mo.App.1984). In its original complaint plaintiff did not allege that it placed funds into defendant’s hands to be specifically applied as insurance premiums on behalf of the insured. Plaintiff did allege that defendant converted monies rightfully due plaintiff and that such conversion amounted to a tort which had consequences in Missouri. As a general rule, that a tort has consequences in Missouri is sufficient to establish jurisdiction under the long-arm statute. Institutional Marketing Associates, Ltd. v. Golden State Strawberries, Inc., 747 F.2d 448 (8th Cir.1984).

Defendant argues that it is clear plaintiff’s counsel did no independent research on the law of conversion in Missouri, otherwise he would have recognized that the facts as pleaded did not support personal jurisdiction. Defendant contends that counsel’s neglect is exemplified by his request for case law on conversion—he would not have made such a request had he examined the law on his own. Had counsel examined the law prior to filing the complaint, he could have argued the facts as [178]*178falling under the exception at that time, rather than waiting until the case had been dismissed to attempt to file an amended complaint. Furthermore, argues defendant, as the court expressed doubt that the facts warranted the application of the exception, for plaintiff to argue the exception is sanctionable activity.

The court disagrees with defendant’s contentions. Simply because plaintiff’s attorney requested defense counsel to delineate case law on conversion does not necessarily mean that he did no research of his own, and had no preexisting knowledge about the law of conversion. It is probable that the attorney was merely asking defendant if its position could be supported. Moreover, that plaintiff did not originally plead the exception does not automatically lead to the conclusion that its counsel was not aware of the exception. In his response to defendant’s list of authorities on conversion, plaintiff’s counsel indicated that he believed the exception applied. In the opposition to the motion to dismiss, plaintiff relied on Scott v. Twin City State Bank,

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Cite This Page — Counsel Stack

Bluebook (online)
136 F.R.D. 175, 1991 U.S. Dist. LEXIS 5757, 1991 WL 66007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/premium-financing-specialists-inc-v-greater-new-york-mutual-insurance-mowd-1991.