W. A. Krueger Co. v. Ottenheimer Publishers, Inc.

458 F. Supp. 1082, 26 Fed. R. Serv. 2d 231, 1978 U.S. Dist. LEXIS 15324
CourtDistrict Court, E.D. Wisconsin
DecidedSeptember 26, 1978
DocketNo. 78-C-322
StatusPublished
Cited by2 cases

This text of 458 F. Supp. 1082 (W. A. Krueger Co. v. Ottenheimer Publishers, 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
W. A. Krueger Co. v. Ottenheimer Publishers, Inc., 458 F. Supp. 1082, 26 Fed. R. Serv. 2d 231, 1978 U.S. Dist. LEXIS 15324 (E.D. Wis. 1978).

Opinion

DECISION and ORDER

MYRON L. GORDON, District Judge.

This matter is before me on the defendant’s motions to dismiss for want of personal jurisdiction or, in the alternative, to transfer venue of the case, and on the plaintiff’s motion to enjoin the defendant from instituting or further prosecuting any action against the plaintiff concerning the subject matter of this action.

The plaintiff in this case, W. A. Krueger Company, is a Wisconsin corporation engaged in the printing and binding of books. The defendant, Ottenheimer Publishers, Inc., is a Maryland corporation engaged in the publishing of books. In 1975 and 1976, Ottenheimer entered into contract with Krueger whereby Krueger agreed to print and bind two books published by the defendant. On April 24, 1978, Krueger filed this action alleging damages from Otten-heimer’s failure to pay for the services for which it had contracted.

I. MOTION TO DISMISS FOR WANT OF PERSONAL JURISDICTION

The defendant has moved to dismiss this action pursuant to Rule 12(b)(2), Federal Rules of Civil Procedure, alleging that the court lacks personal jurisdiction over the defendant. To determine whether personal jurisdiction is proper in a diversity case such as this, the initial inquiry is whether the courts of Wisconsin have jurisdiction over the defendant pursuant to Wisconsin law. In the case at bar, the defendant allegedly contracted with the plaintiff for the latter to print books at its printing facilities in Wisconsin. These books were subsequently shipped from Wisconsin to customers of the defendant. Given these facts, the following provisions of § 801.05, Wis.Stats., arguably provide Wisconsin courts with personal jurisdiction over the defendant:

“(5) Local services, goods or contracts. In any action which:
“(a) Arises out of a promise, made anywhere to the plaintiff or to some 3rd party for the plaintiff’s benefit, by the defendant to perform services within this state or to pay for services to be performed in this state by the plaintiff; or
“(b) Arises out of services actually performed for the plaintiff by the defendant within this state ... if such performance within this state was authorized or ratified by the defendant; or
[1084]*1084“(d) Relates to goods, documents of title, or other things of value shipped from this state by the plaintiff to the defendant on the defendant’s order or direction; 11

In Nordberg Div. of Rex Chainbelt, Inc. v. Hudson Engineering Corp., 361 F.Supp. 903, 905 (E.D.Wis.1973), the court stated:

“The question remains whether these sections, as applied to defendant, violate constitutional standards of due process or, in other words, whether defendant’s contacts with Wisconsin are so insignificant that subjecting defendant to suit here would offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).”

The dimensions of due process in cases where the defendant’s sole tie to the forum state arises from the single contract at issue were suggested by the Supreme Court’s decision in McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). In McGee, the Court upheld jurisdiction over an out-of-state insurance company whose only contact with the forum state was the solicitation and sale of an insurance policy in the state and the out-of-state receipt of payments in connection with that policy. Although McGee involved a seller which solicited business in the forum state, I am not persuaded that due process requires a narrower scope of personal jurisdiction for a corporate buyer which negotiates and contracts to have work performed in the forum state.

Prior to the commencement of any work, Ottenheimer was informed that the printing and binding would be done in Wisconsin. The defendant subsequently signed a contract obligating Krueger to print and bind thousands of volumes in Wisconsin. The defendant’s vice-president made at least two trips to Wisconsin for the purpose of inspecting the work being done for the defendant.

I believe that Ottenheimer’s activity was of sufficient significance so that subjecting it to suit in Wisconsin does not “offend traditional notions of fair play and substantial justice.” This conclusion is supported by the case of Nordberg Div. of Rex Chainbelt, Inc. v. Hudson Engineering Corp., 361 F.Supp. 903 (E.D.Wis.1973), in which due process was found to be satisfied where personal jurisdiction was exercised over a defendant whose contacts with the state of Wisconsin were substantially similar to Ottenheimer’s contacts with Wisconsin. See also In-Flight Devices Corporation v. Van Dusen Air, Inc., 466 F.2d 220 (6th Cir. 1972). Therefore, Ottenheimer’s motion to dismiss this action for want of personal jurisdiction will be denied.

II. MOTIONS TO TRANSFER VENUE AND FOR A PRELIMINARY INJUNCTION

On April 24, 1978, Krueger filed the instant action in the circuit court for Milwaukee County seeking recovery based on a settlement agreement reached between the parties concerning books printed by Krueger for Ottenheimer. On May 22, 1978, Ot-tenheimer removed the case to this court, pursuant to 28 U.S.C. § 1441. On May 22, Ottenheimer also filed a complaint in the United States district court for the district of Maryland seeking to set aside the settlement agreement which is the basis of the instant action and also claiming damages for allegedly defective products.

Krueger, preferring to litigate these matters in Wisconsin, has moved to enjoin Ot-tenheimer from proceeding with its suit in the district court of Maryland or with any other action concerning the subject matter of this case. In support of its motion, it states, “[t]he prospect of simultaneous actions involving the same parties and the same subject matter pending in different courts is destructive of the orderly administration of justice and the desirable goal of judicial economy.” Ottenheimer, preferring to litigate in Maryland, has moved that the venue of this ease be transferred to the district court of Maryland. In support of its motion, Ottenheimer states that by transferring the case, “judicial time and resources can be conserved; . . .” Thus, it is clear that both parties would [1085]*1085prefer to litigate this case and the Maryland ease in a single forum, but disagree as to what that forum should be.

In Warshawsky & Co. v. Areata National Corp., 552 F.2d 1257 (7th Cir. 1977), and Martin v. Graybar Electric Co., 266 F.2d 202 (7th Cir.

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458 F. Supp. 1082, 26 Fed. R. Serv. 2d 231, 1978 U.S. Dist. LEXIS 15324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/w-a-krueger-co-v-ottenheimer-publishers-inc-wied-1978.