Sed, Inc. v. Bohager/Goodhues, Inc.

538 F. Supp. 196, 1982 U.S. Dist. LEXIS 12141
CourtDistrict Court, E.D. Wisconsin
DecidedApril 13, 1982
DocketNo. 81-C-637
StatusPublished
Cited by2 cases

This text of 538 F. Supp. 196 (Sed, Inc. v. Bohager/Goodhues, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sed, Inc. v. Bohager/Goodhues, Inc., 538 F. Supp. 196, 1982 U.S. Dist. LEXIS 12141 (E.D. Wis. 1982).

Opinion

[197]*197DECISION AND ORDER

MYRON L. GORDON, District Judge.

In this action, the plaintiff asserts that the defendants owe it $29,192.84, as provided in contracts between the parties, under which the plaintiff shipped certain goods to the defendants and performed other services. The defendants raise several grounds for dismissal or summary judgment.

The defendants move to quash the return of summons on the defendant Bohager/Goodhues on the ground that no one authorized to receive service was served. After some confusion, the parties determined that the resident agent for service for that defendant was Douglas W. Biser. See affidavit of Sandra L. Peterson, filed October 10, 1981, exh. A. The court’s file contains a marshal’s service form dated September 17, 1981, which indicates that Mr. Biser was personally served on that date. Therefore, the defendants’ motion to quash will be dismissed as moot.

Of the other motions raised by the defendants, I find that I need only resolve their motion to dismiss on the ground of a lack of personal jurisdiction. The plaintiff is a Wisconsin corporation engaged in the business of disposing of PCB waste products, licensed by the state of Wisconsin and regulated by both that state and the federal government. The defendants are both Maryland corporations. The parties have submitted several affidavits on this issue which when taken together reveal several uncontroverted factual matters.

Damien Bohager, the president of Bohager/Goodhues, avers that he learned of the plaintiff’s business from an advertising circular he received at his business in Maryland. After receiving the circular, he called the plaintiff and negotiations began. Affidavit of Damien Bohager, filed September 29, 1981, ¶¶2-3. The parties negotiated two contracts for the shipment of PCB storage containers to the defendants; these contracts are attached to the complaint. The storage containers were manufactured in Wisconsin, and significant services under the contracts were performed in Wisconsin by the plaintiff. See affidavit of Sharon Brown, filed September 8, 1981, ¶ 8.

The first contract was between the plaintiff and the defendant corporation Frank Bohager & Sons. The plaintiff does not dispute that the contract was executed by that defendant in Maryland on July 14, 1980, and mailed to the plaintiff. The plaintiff executed the first contract in Wisconsin on July 23, 1980. The second contract was between the plaintiff and the defendant Bohager/Goodhues. That defendant executed the second contract in Maryland on September 16, 1980; there is no dispute that it was hand-delivered to the plaintiff’s Wisconsin location by an attorney for Bohager/Goodhues. The attorney also carried a check for payment; he delivered the contract and the check, observed the execution of the contract by a representative of the plaintiff, and received a copy of the fully executed contract. Brown affidavit, ¶ 7; affidavit of Stephen Ransdell, filed September 25, 1981, ¶¶ 3 — 4. The check was eventually returned for insufficient funds, prompting this lawsuit.

Jurisdiction in this action is based on diversity; thus this court has all the jurisdictional power of a Wisconsin state court. Rules 4(e) and 4(d)(7), Federal Rules of Civil Procedure. If one were to consider only the terms of the Wisconsin long-arm statute, a Wisconsin court could assert jurisdiction over the plaintiff’s claim. See Wis.Stat. § 801.05(5Xc) & (d). Wisconsin has also construed its long-arm statute to extend as far as the constitutional limits of due process permit. Flambeau Plastics Corp. v. King Bee Manufacturing Co., 24 Wis.2d 459, 464, 129 N.W.2d 237 (1964); thus the issue is whether the application of that statute to this case would comport with due process.

In International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court held that in order to subject an out-of-state defendant to the personal jurisdiction of a court, the defendant must have such “minimum contacts” with the forum state that the maintenance of the suit “does not offend ‘tradi[198]*198tional notions of fair play and substantial justice.’ ” Id. at 316, 66 S.Ct. at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the Court elaborated on the International Shoe due process test, stating:

“... it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. at 253, 78 S.Ct. at 1239.

In a pair of related cases, the court of appeals for this circuit discussed what actions by a defendant constitute a purposeful invocation of the benefits and protections of a state. In Lakeside Bridge & Steel Co. v. Mountain State Construction Co., 597 F.2d 596 (7th Cir. 1979), the defendant had no contacts with the forum state of Wisconsin other than those arising from the contract at issue. All contacts between the Wisconsin plaintiff and the out-of-state defendant had occurred by interstate mail or telephone; no representative of the defendant had ever visited Wisconsin as part of the transaction in question. The plaintiff manufactured goods for the defendant in Wisconsin and shipped them out of the state. The court of appeals found that only the plaintiff had a relationship with the forum state, and the relationship between the parties was of two corporations engaged in a “commercial contract dispute.” Id. at 604. The court concluded that the unilateral contacts of the plaintiff with the forum state could not satisfy the due process requirements of contact with the forum state by the defendant. Thus the Wisconsin court had no personal jurisdiction over the defendant.

Lakeside was followed by Wisconsin Electrical Manufacturing Co. v. Pennant Products, Inc., 619 F.2d 676 (7th Cir. 1980). The facts in Pennant Products were virtually identical to those in Lakeside. The parties were corporations engaged in a commercial contract dispute, the plaintiff had manufactured goods for the defendant in Wisconsin and had shipped them to an out-of-state defendant, and the defendant had no other contacts with the forum state of Wisconsin other than those out of which the dispute arose. The court found a crucial difference, however. The relations between the parties had not been conducted solely by interstate mail and telephone; the defendant had twice sent representatives to the plaintiff’s Wisconsin facilities, once prior to the execution of the contract and once after.

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Cite This Page — Counsel Stack

Bluebook (online)
538 F. Supp. 196, 1982 U.S. Dist. LEXIS 12141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sed-inc-v-bohagergoodhues-inc-wied-1982.