Opposition Brief — National Automatic Products Co. v. American Airlines, Inc.
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, | Suprenis Court, U.S
No. 88-2087 |] yy
IN THE _ on, JR, |
Supreme Court of the United States a
OCTOBER TERM, 1988
NATIONAL AUTOMATIC PRODUCTS COMPANY,
Petitioner,
VS.
AMERICAN AIRLINES, INC.,
Ex-CELL-O CORPORATION,
= Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT
OF THE STATE OF OKLAHOMA
RESPONDENTS’ BRIEF IN OPPOSITION
STEPHEN P. FRIOT
BARBARA L. SWIMLEY
SPRADLING, ALPERN, FRIOT & GUM
101 Park Avenue, Suite 700
Oklahoma City, Oklahoma 73102
Telephone: 405/272-0211
Counsel for Respondents
July 21, 1989
SEER IE RG RETO NLLE LIL ELLE LLL E LEBER BEL CLE LE LL LAP LE ILLS ED
—|]—
QUESTION PRESENTED
The sole question presented for review is
whether the Oklahoma Supreme Court erred in
determining, in its 1985 opinion, that the Tulsa
County District Court could properly exercise
personal jurisdiction over Petitioner within the
limits imposed by the Due Process Clause of the
Fourteenth Amendment to the United States Con-
stitution.
(The foregoing statement of the question pre-
sented assumes, arguendo, that Petitioner can
successfully establish, in the face of several irre-
mediable procedural defaults, that this Court has
certiorari jurisdiction in this case. See Proposi-
tion I, infra.)
ee Po
LIST OF RESPONDENTS AND RELATED
COMPANIES
American Airlines, Inc.
Fuel Systems Textron, Inc. (Ex-Cell-O Corpora-
tion), subsidiary of Textron, Inc.
—iii-—
TABLE OF CONTENTS
Page
QUESTION PRESENTED .............cscecceeecceceeseeeess j
LIST OF RESPONDENTS AND RELATED
eS eee i
AMEE OF CONTENTS ...............0.0....0............ iii
PAE OF AUTHORITIES .............0:....-..0...000... V
OPINIONS BELOW .......................0.0..00000..000005. l
PUMMEITIINT 0 -.cn.cscc.snnsenccsocseussvecssccceasconsee 2
CONSTITUTIONAL PROVISION INVOLVED ........ 2
STATEMENT OF THE CASE ..........ccccceeeeeeeeeeeeee 3
A. FACTUAL BACKGROUND ..........00-ceeecceeeeeees 3
B. THE OKLAHOMA PROCEEDINGS .........0..000+- 5
REASONS FOR DENYING THE WRIT .......00.-e000- 8
Proposition I
THE WRIT SHOULD BE DENIED BECAUSE
THIS COURT LACKS JURISDICTION TO RE-
VIEW EITHER THE i985 OKLAHOMA SU-
PREME COURT JUDGMENT OR THE 1989
OKLAHOMA COURT OF APPEALS JUDG-
Teale eh dua dbsscksndesscsnknusnnsiCisceess 8
A. This Court lacks jurisdiction to review the
1985 Oklahoma Supreme Court decision be-
cause NAPCO’s Petition is untimely ............ 8
B. This Court lacks jurisdiction to review the
1989 judgment of the Oklahoma Court of Ap-
peals because NAPCO failed to seek review,
by the Oklahoma Supreme Court, of the deci-
sion of the Oklahoma Court of Appeals, with
the result that the 1989 judgment is not a judg-
ment of the highest state court ..................4. 12
ne 8 ae
Page
Proposition II
THE WRIT SHOULD BE DENIED FOR WANT
OF A SUBSTANTIAL FEDERAL QUESTION ... 15
EE A skin cdpcacadetuccnacaskeanapaeschenenaserseakade 21
APPENDICES
A. 1985 Opinion of the Oklahoma Supreme Court
B. 1989 Opinion of the Oklahoma Court of Ap-
peals
C. Nunc Pro Tunc Order
D. 1985 Mandate
E. 1989 Mandate
F. Excerpts from the Carl Peterson Deposition
G. NAPCO’s Answers to Interrogatory Nos. 28
and 29
H. Pertinent Rules of the Oklahoma Court of
Appeals and the Oklahoma Supreme Court
—V—
TABLE OF AUTHORITIES
Page(s)
Due Process Clause of the Fourteenth Amendment
to the United States Constitution .............. 25 19, tie 2A
22 GR. SO. SE FIRS vas ksharcestiomasiatcadianes 2
i UBM BABS $s ckistissinertactincmiinesueaeaee 9, 14
Oe RBA BEE saa wsccssassececesatsaenmivcepeemiaerens
Be UA. Ie se hcksenccresenivasnneeeinaceniaeaaees 2
National Labor Relations Act ....ic0sccsccveessssssnasncsens a
Rule 3.9 of the Rules of the Oklahoma Court of
POE aio cancasicasdessinsanicsaepadbedemnaiaeeeaas 13
Rule 3.13 of the Rules of the Oklahoma Court of
PIER a ccicnsssinistavesssenmaaiideuperenemenaneareenes 13
Rule 3.13(b) of the Rules of the Oklahoma Court of
PORE os cnaveccsnis cusnecencnuasnauancamunmeuneeapaneeainess 13
Rule 3.19 of the Rules of the Oklahoma Court of
PROUT oscccssncscasatnurssccsveisecsduscunsuanintneesieninnte 7, 14
Rule 17 of the Rules of the Supreme Court of the
Une SRN oxi scdccccnicesceccsserccasecugeysnieseneadinas 15
Rule 17(c) of the Rules of the Supreme Court of the
UMMC THANES ociessncannnncedcecdabecssuansadycveheonsceuens a)
Rule 28 of the Rules of the Supreme Court of .
CORDA .acncnk ss Suidacncccukduenseneneasbil ineeinaneeke 6, 8, 13
Rule 29 of the Rules of the Supreme Court of
CURIRIIOO ociscis cc cuscdinnseceneueennnuennenepane=neeaeiane 8
Rule 33 of the Rules of the Supreme Court of
RNIN 5. os ccincesssccsevanceiendapaeeernceunneeraanaeen 8
Ashai Metal Industries Co. v. Superior Court of
California, 408 U.S. 102, 107 S.Ct. 1026,
94 LB. 26 FE CSE) vcccicdsacunesssecnese ane taiees 20
am Yj
Page(s)
Banks v. California, 395 U.S. 708, 89 S.Ct. 1901,
Ze 1.8.20 GSS (ISGP) ccncrscriensscnccccossrcxaccenneasss 14
Burger King Corp. v. Rudzewicz, 471 U.S. 462,
505 $.Ct. 2174, GS L.B6.20 SEB (RGSS) vsccsscescnse 18, 19
Calder v. Jones, 465 U.S. 783, 788 (7. 8),
104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) ............... 9
California Retail Liquor Dealers Association v. Midcal
Aluminum, Inc., 455 U.S. 97, 100 S.Ct. 937,
G3 Lid. 28 ZSS (RSG) vcccsenssnssesccasnnnssasvcnaessess 14
Costarelli v. Massachusetts, 421 U.S. 193, 95 S.Ct.
S554, 44 L.BGB6 PG CIGD). dsicvviccsccsccaxnissvecenses 15
Department of Banking v. Pink, 317 U.S. 264, 63
S.Ct. 233, 87 Lied. 256 CPOGEE | sisastastvaccisccanseves 11
General Motors Corporation v. Washington, 377 U.S.
436, 84 S.Ct. 1564, 12 L.Ed.2d 430 (1964) .......... 18
Gotthilf v. Sills, 375 U.S. 79, 84 S.Ct. 187, 11
ot ae SSD CDG vcs ccisscesiccsanenedcreamsteeeaeas 15
Hill v. Chicago and E.R. Co., 140 U.S. 52, 11 S.Ct.
GIO, 3S 1..Bd. S31 (IGE) vccnccsscicessccesucaxvesssasens 12
Ins. Corp. of Ireland v. Compagnie Des Bauxites, 456
U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) .. 10
International Shoe Co. v. Washington, 326 U.S. 310,
OG SAX, 154, FO LB. DS CE) acccsicisnvsccdcasnes 9, 18
Matthews v. Huwe, 269 U.S. 262, 46 S.Ct. 108, 70
Bd; BOG (TSS) kes vinscaccascccnusnscusksasnavecasuacuns 14, 15
N.W. States Portland Cement Co. v. State of
Minnesota, 358 U.S. 450, 79 S.Ct. 357,
DUR 20 ASE CIGD. iccicccsedaavannasctasscasncannanees 18
—Vvli—
National Labor Relations Board v. Friedman-Harry
Marks C. Co., 301 U.S. 58, 56 S.Ct. 645,
OA Bs PEG REMOTE, sik sin ces sada caceveads ch clancaasnnns
Sandquist v. California, 419 U.S. 1066, 95 S.Ct.
GOA, Se Ene Ge CEE) dvsckncacsnsacansecsacicis
Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569,
FS SMe WUD MOOTED sacetacatcasacks\aacsesarcesdaces
Stratton v. Stratton, 239 U.S. 55, 36 S.Ct. 26,
60 L.Ed. 142 (1915) ..cccccccceesseeccecccccecceeeceeee
Toledo Scale Co. v. Computing Scale Co., 261 U.S.
399, 43 S.Ct. 458, 67 L.Ed. 719 (1923) ...........
Worldwide Volkswagen v. Woodson, 444 U.S. 286,
100 S.Ct. 559, 62 L.Ed.2d 490 (1980) .......... ]
Page(s)
me 9
, 18, 20
re ——— S—<- ae) eee = = - a
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
No. 88-2087
NATIONAL AUTOMATIC PRODUCTS COMPANY,
Petitioner,
VS.
AMERICAN AIRLINES, INC.,
Ex-CELL-O CORPORATION,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT
OF THE STATE OF OKLAHOMA
RESPONDENTS’ BRIEF IN OPPOSITION
OPINIONS BELOW
The Respondents, American Airlines, Inc. and
Ex-Cell-O Corporation (herein “American Air-
lines’), respectfully request that this Court deny
the Petition of National Automatic Products Com-
pany (herein “NAPCO’) for a Writ of Certiorari,
seeking review of a 1985 opinion of the Supreme
Court of Oklahoma and a 1989 opinion of the
Oklahoma Court of Appeals.!
‘Neither opinion was released for publication. The opinions are printed at
Appendix A and Appendix B, respectively, and attached to this Brief.
a
JURISDICTION
This Court lacks certiorari jurisdiction in this
case. Petitioner has petitioned for a writ of cer-
tiorari, requesting that this Court review two
Oklahoma appellate court decisions. See Propo-
sition I, infra. This Court lacks jurisdiction to
review the 1989 Oklahoma Court of Appeals judg-
ment because, by virtue of procedural defaults
during the Oklahoma appellate process, the
judgment was not rendered by the highest Okla-
homa court in which a decision could be had. This
Court lacks jurisdiction to review the 1985 deci-
sion of the Oklahoma Supreme Court because that
decision was a final decision on the merits of the
federal question and review of that decision in
this Court was not timely sought. Further discus-
sion of these jurisdictional defects is contained
below in Proposition I of Reasons for Denying the
Writ.2
CONSTITUTIONAL PROVISION INVOLVED
The only statute or constitutional provision
involved in this matter? is the Due Process Clause
of the Fourteenth Amendment, which states in
pertinent part as follows: “... nor shall any State
deprive any person of life, liberty, or property,
without due process of law....”
"Petitioner also claims that 28 U.S.C. §2403(b) may be applicable. Section
2403(b) only applies where the constitutionality of a state statute is drawn into
question. In the case at bar, the issue presented for review does not involve the
constituuonality of a state statute, and thus, §2403(b) is not applicable.
‘NAPCO lists the Oklahoma long-arm statute in effect when the suit was filed in
1982 (12 Okla. Stat. §1703.03) as a statute relevant to this matter. However, the sole
issue for review is whether the Oklahoma Supreme Court’s 1985 decision that the
Oklahoma courts had personal jurisdiction over NAPCO exceeded the limits imposed
by the Due Process Clause of the Fourteenth Amendment. NAPCO has not attacked
the constitutionality of 12 Okla. Stat. §1703.03.
~ a
STATEMENT OF THE CASE
A. FACTUAL BACKGROUND.
NAPCO is in the business of manufacturing
parts for aircraft engines. (Peterson Depo., p. 27).4
One of the parts manufactured by NAPCO is a fuel
nozzle nut for a Pratt & Whitney JT-9 jet engine.
(Peterson Depo., pp. 30-31). The JT-9 jet engine is
manufactured by Pratt & Whitney for commercial
or military use. It is a large engine, used, for
example, on a Boeing 747 airplane. (Peterson
Depo., pp. 30-32).
NAPCO’s main customers are Pratt & Whitney,
Ex-Cell-O Corporation and Chrysler Corporation.
(Peterson Depo., p. 16). There is a national com-
petition for the airplane engine parts manufac-
turing business and a nationwide market for air-
plane engine parts. (Peterson Depo., pp. 40-41).
NAPCO does not conduct any advertising because
all of the engine manufacturers in the United
States that NAPCO has the capability to serve are
aware of NAPCO’s manufacturing abilities. (Pe-
terson Depo., pp. 36-37).
The accident involved in this case occurred at
American Airlines’ maintenance base in Tulsa,
Oklahoma, in December, 1980. Between the years
of 1979 and 1981, NAPCO manufactured 11,007
“The Peterson Deposition and NAPCO’s Answers to Interrogatories were a part of
the record on appeal in the first appeal before the Oklahoma Supreme Court as ROA
413 and ROA 148, respectively. However, for purposes of clarity, references to
these documents shall be designated ‘‘Peterson Depo., p. * and ‘‘NAPCO’s
Answers to Interrogatory Nos. .”’ All other references shall be designated
“ROA _.’’ (This ROA designation will indicate the record on appeal in the second
appeal to the Supreme Court.) All references to the transcript of the trial of this action
shall be designated as ‘‘Tr. _.”” (The trial of this action occurred after the decision
on the first appeal became final.)
_
fuel nozzle nuts for the JT-9 jet engine. (Peterson
Depo., p. 47; NAPCO’s Answers to Interrogatory
Nos. 28 and 29). Aside from NAPCO’s direct ship-
ments of its products to Oklahoma (discussed
below), these fuel nozzle nuts were shipped from
NAPCO’s Connecticut plant to Ex-Cell-O Corpora-
tion in Michigan. In 1982, NAPCO’s price for a fuel
nozzle nut was $50. In 1979, the price was between
$30 and $35. (Peterson Depo., p. 50). After the fuel
nozzle nuts were shipped to Michigan, it was
NAPCO’s expectation that the nut would be
shipped anywhere in the United States that it was
needed for placement on a jet engine. (Peterson
Depo., p. 55). NAPCO recognized that the market
for its fuel nozzle nut was a nationwide market,
and NAPCO intended to serve the nationwide
market when it manufactured the fuel nozzle nut.
(Peterson Depo., p. 58).
In 1976, NAPCO shipped fuel nozzle nuts fora
TF-30 airplane engine directly to Tinker Air
Force Base in Midwest City, Oklahoma. (Peterson
Depo., pp. 51-52).
American Airlines, a commercial airline car-
rier, has a major maintenance and engineering
center in Tulsa, Oklahoma. (Tr. Vol. I, p. 33). At
this maintenance and engineering center, Amer-
ican Airlines refurbishes, maintains and repairs
the aircraft and engines for its fleet. (Tr. Vol. I, p.
34).
On December 29, 1980, while American Air-
lines personnel were testing a Pratt & Whitney
J °-9 jet engine at one of American Airlines’ test
cell facilities at the Tulsa, Oklahoma mainte-
nance and engineering center, a fire occurred,
originating from the engine. (Tr. Vol. I, p. 39). As a
=
result of the fire, American Airlines suffered
damage to the test cell facility and to the Pratt &
Whitney JT-9 jet engine in the amount of
$944,545.90. (Tr. Vol. I, p. 231).
An investigation at American Airlines after
the fire determined that the cause of the fire was
a defectively manufactured fuel nozzle nut. (Tr.
Vol. I, pp. 108-109). It was determined that the
defective nut in question had been manufactured
by NAPCO, who sold the nut to Ex-Cell-O Corpo-
ration, who in turn sold the nut to Pratt & Whitney
(a division of United Technologies, Ine.), who in
turn sold the nut to American Airlines. (Tr. Vol. I,
pp. 281-282). NAPCO derived between $14,760 and
$24,600 in revenues from the sale of 492 fuel
nozzle nuts for use in Oklahoma by American
Airlines at its maintenance plant in the years 1980
and 1981. (1985 Opinion of the Oklahoma Supreme
Court, Appendix A at pp. 6-7), (1983 ROA 392,
Exhibit B).
B. THE OKLAHOMA PROCEEDINGS.
American Airlines filed suit in the District
Court in Tulsa County, Oklahoma, seeking a judg-
ment against United Technologies, Inc. (herein
“United’”’), Ex-Cell-O Corporation (herein
“Ex-Cell-O”’) and NAPCO. American Airlines’ Pe-
tition contained counts of negligence, breach of
implied warranty and manufacturer’s products
liability (strict liability in tort) against all defen-
dants. (ROA 1-9). The defendants filed special
appearances, motions to quash and pleas to the
jurisdiction. (ROA 16-17, 18-19, 20-22). The trial
court granted the motions of United and NAPCO
to dismiss. (See Nunc Pro Tunc Order attached
a oe
hereto as Appendix C.)5 The trial court’s dis-
missal was appealed by American Airlines to the
Supreme Court of the State of Oklahoma in 1983.
On January 20, 1985, the Oklahoma Supreme
Court reversed and remanded the order of the
trial court, finding that the Tulsa County District
Court had personal jurisdiction over NAPCO and
United. NAPCO and United both timely filed pe-
titions for rehearing pursuant to Rule 28 of the
Rules of the Supreme Court of Oklahoma. On
March 4, 1985, the Supreme Court granted the
rehearing and issued a correction order for the
limited purpose of adding a name to a list of
attorneys. The Court denied all other points
raised upon rehearing. Subsequently, on March
11, 1985, a mandate was issued by the Oklahoma
Supreme Court to the District Court of Tulsa
County reversing and remanding the trial court’s
order and ordering the trial court to take such
further action as may be in accord with the Su-
preme Court’s opinion. (A copy of the Mandate is
attached hereto as Appendix D.)
The case was set for trial in March 1987. Prior
to trial, American Airlines settled with United
and with Ex-Cell-O. American Airlines and Ex-
Cell-O then proceeded jointly to trial against
NAPCO on American Airlines’ claims for negli-
gence, breach of implied warranty and manufac-
turer’s products liability and on Ex-Cell-O’s claim
for indemnity. The action was tried to a jury. At
trial, NAPCO’s chief of quality control admitted
*It was stipulated between the parties that, if the Supreme Court upheld the trial
court’s dismissais, Ex-Cell-O would also be dismissed from the action, and if the
Oklahoma Supreme Court reversed and remanded the trial court’s ruling, Ex-Cell-O
would agree to submit to the jurisdiction of the Court.
te
that the fuel nozzle nut in question was a NAPCO
nut and was defective (Tr. Vol. I, pp. 241, 242, 251,
252). The jury returned a verdict against NAPCO
for liability on the issues of manufacturer’s prod-
ucts liability and breach of implied warranty of
merchantability and awarded damages in the
amount of $944,545.90. (Tr. Vol. I, p. 482).
NAPCO filed a motion for new trial. (ROA
1793-1795). After the trial court overruled
NAPCO’s motion for new trial (ROA 1882), NAPCO
filed an appeal. During the pendency of the sec-
ond appeal, American Airlines assigned its inter-
est in the judgment to Ex-Cell-O. The second
appeal was assigned to the Oklahoma Court of
Appeals. The Court of Appeals rendered a deci-
sion affirming the verdict and judgment of the
trial court on March 7, 1989. On April 6, 1989,
pursuant to Rule 3.19 of the Rules of the Okla-
homa Court of Appeals, the clerk of the Oklahoma
appellate courts issued a mandate to the Tulsa
County District Court affirming the judgment of
the court and verdict of the jury. (A copy of the
Mandate is attached hereto as Appendix E.) The
mandate was received by the trial judge and
ordered filed and spread of record on April 12,
1989. Two weeks later, on April 28, 1989, NAPCO
filed a motion for rehearing in the Oklahoma
Court of Appeals.
Subsequently, on June 2, 1989, NAPCO filed a
Notice of Appeal to the Supreme Court of the
United States and filed a Jurisdictional State-
ment with this Court. NAPCO was notified by
letter that its Jurisdictional Statement will be
considered to be a Petition for Writ of Certiorari
and was requested to make corrections in the
=
Jurisdictional Statement. The corrected petition
for certiorari was received by this Court on June
23, 1989.
REASONS FOR DENYING THE WRIT
Proposition I
THE WRIT SHOULD BE DENIED BE-
CAUSE THIS COURT LACKS JURISDIC-
TION TO REVIEW EITHER THE 1985
OKLAHOMA SUPREME COURT JUDG-
MENT OR THE 1989 OKLAHOMA COURT
OF APPEALS JUDGMENT.
A. This Court lacks jurisdiction to review the
1985 Oklahoma Supreme Court decision because
NAPCO’s Petition is untimely.
28 U.S.C. §2101 provides that any writ of cer-
tiorari that is intended to bring any judgment or
decree in a civil action before the Supreme Court
for review shall be applied for within 90 days
after the entry of such judgment or decree. The
Oklahoma Supreme Court’s 1985 decision was en-
tered on January 29, 1985. The appellees all filed
petitions for rehearing, which were denied by the
Court on Tuesday, March 5, 1985. Subsequently,
the mandate was issued to the trial court on April
12, 1985 (Appendix C). At that point, the Oklahoma
appellate proceedings were final, and the matter
was ripe for the filing of a petition for certiorari
in this Court. See Oklahoma Supreme Court Rules
28, 29, 33; 28 U.S.C. §2101. (Copies of all pertinent
Oklahoma Court Rules are attached hereto as
Appendix H.)
NAPCO failed to seek review of the 1985 deci-
sion in the United States Supreme Court withi» 90
= a
days of March 5, 1985. NAPCO now attempts to
seek review of the 1985 decision, more than four
years after its entry and after NAPCO was af-
forded a full and fair trial on the merits.
It is well settled that a decision by the highest
state court in which review could be had that the
courts of a state have personal jurisdiction over a
non-resident defendant is a final decision within
the meaning of 28 U.S.C. §1257 and, thus, can be
reviewed by this Court, even though there has not
yet been a trial on the merits. Shaffer v. Heitner,
433 U.S. 186, 195, 97 S.Ct. 2569, 2575 (n. 12), 53
L.Ed.2d 683 (1977), Calder v. Jones, 465 U.S. 783,
788 (n. 8), 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984).
This Court has considered such decisions to be
final because the judgment is plainly final on the
federal issue and is not subject to further review
in the state courts. Shaffer v. Heitner, supra,
Calder v. Jones, supra. Research does not reveal a
single case where this Court reviewed the issue of
personal jurisdiction over a non-resident defen-
dant where, as here, following a decision by the
highest state court that it had personal jurisdic-
tion over the non-resident defendant, the defen-
dant failed to seek review, submitted to trial,
appealed the issue again through the state court
system, and attempted to appeal both state court
decisions after the rendition of the second deci-
sion. Personal jurisdiction issues have come be-
fore this Court (since International Shoe Co. v.
Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95
(1945)) either upon review of a state court decision
finding personai jurisdiction, or after a trial on
the merits where there was not a first appeal on
the jurisdictional issue.
2...
In Ins. Corp. of Ireland v. Compagnie Des
Bauxites, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d
492 (1982), this Court discussed the nature of the
constitutional requirement that a court have per-
sonal jurisdiction over a non-resident defendant.
In Ins. Corp. of Ireland, a non-resident defendant
had filed a special appearance and contested
personal jurisdiction over it. The district court
made a finding that it had personal jurisdiction
over the non-resident defendant as a sanction for
refusal by that defendant to comply with discov-
ery aimed at determining whether or not facts
existed that justified jurisdiction of the Court
over the defendant. The Court of Appeals af-
firmed the district court’s decision and this Court
affirmed the judgment of the Court of Appeals.
This Court found that
the requirement cf personal jurisdiction
may be intentionally waived, or for various
reasons a defendant may be estopped from
raising the issue. ... The actions of the
defendant may amount to a legal submis-
sion to the jurisdiction of the court,
whether voluntary or not. Id. at 705, 102
S.Ct. at 2105.
This Court also found that the expression of legal
rights is often subject to certain procedural rules
and that the failure to follow these rules may well
result in a curtailment of the rights. Id. at 705, 102
S.Ct. at 2105. This Court further found that
[b]y submitting to the jurisdiction of the
court for the limited purpose of challeng-
ing jurisdiction, the defendant agrees to
abide by that court’s determination on the
issue of jurisdiction: That decision will be
=)
res judicata on that issue in any further
proceedings. Id. at 706, 102 S.Ct. at 2106
(emphasis added).
Accordingly, the 1985 decision was final on
the federal question and, thus, subject to review
by this Court in 1985. NAPCO, by failing to obtain
a review of the 1985 decision in this Court, sub-
mitted to the jurisdiction of the Oklahoma courts
and was, thus, precluded from seeking any further
review of the 1985 decision.
In Department of Banking v. Pink, 317 U.S. 264,
63 S.Ct. 233, 87 L.Ed. 254 (1942), a petition for writ
of certiorari was denied for want of jurisdiction
when'tit was not made within three months from a
final judgment of the highest state court. This
Court held that the object of the three-month
statute is to limit an applicant’s time to three
months from the date when the finality of the
judgment for purposes of review is established.
Likewise, in Toledo Scale Co. v. Computing
Scale Co., 261 U.S. 399, 43 S.Ct. 458, 67 L.Ed. 719
(1923), this Court found that it lacked jurisdiction
to review the merits of a final decree on writ of
certiorari applied for more than three months
after the final decree was entered. In Toledo
Seale, the trial court entered a final decree to
enjoin infringement of a patent and for an ac-
counting of profits. The appeals court affirmed
the judgment for accounting of profits. The defen-
dant petitioned for a writ of certiorari in the
Supreme Court and was denied. The Court of
Appeals then entered an order and mandate and
enjoined the defendant from maintaining a suit
=| =
elsewhere. The defendant then petitioned for cer-
tiorari again. This Court denied defendant’s peti-
tion as untimely.
Similarly, in Hill v. Chicago and E.R. Co., 140
U.S. 52, 11 S.Ct. 690, 35 L.Ed. 331 (1891), this Court
dismissed plaintiffs appeal because it lacked
jurisdiction. In Hill, the plaintiff filed a suit to
compel transfer of shares of stock. The district
court crdered that the case be dismissed as to
some of the defendants and referred the remain-
ing case to a master to determine certain factual
issues. The plaintiff appealed the order of the
court to this Court but did not file a transcript and
the appeal was dismissed. Subsequently, the mas-
ter made his report which was confirmed by the
trial court. The plaintiff again appealed to the
United States Supreme Court. This Court deter-
mined that none of the matters determined by the
earlier judgment were open for consideration
upon the plaintiffs second appeal because the
earlier judgment was final on the matters it had
determined.
Consequently, this Court lacks jurisdiction tc
review the 1985 judgment of the Oklahoma Su-
preme Court because NAPCO did not seek review
of that judgment within 90 days of the date on
which that judgment became final.
B. This Court lacks jurisdiction to review the
1989 judgment of the Oklahoma Court of Appeals
because NAPCO failed to seek review, by the Okla-
homa Supreme Court, of the decision of the Okla-
homa Court of Appeals, with the result that the
1989 judgment is not a judgment of the highest
state court.
i
= =
As is shown with particularity below, NAPCO
failed, as a result of procedural defaults which
violated unmistakably clear Oklahoma appellate
rules, to either (i) timely seek a rehearing as to the
1989 decision of the Oklahoma Court of Appeals
or (ii) seek review of the 1989 Oklahoma Court of
Appeals decision by the Oklahoma Supreme
Court. Consequently, NAPCO forfeited any possi-
bility of Oklahoma Supreme Court review of the
Oklahoma Court of Appeals decision, with the
result that, although Oklahoma Supreme Court
review was available, there is not, and will never
be, an Oklahoma Supreme Court decision review-
ing the decision of the Oklahoma Court of Ap-
peals.
On March 7, 1989, the Oklahoma Court of Ap-
peals affirmed the judgment and jury verdict of
the trial court. Subsequently, on April 6, 1989,
after the time had passed for the parties to seek
further review of the judgment in the Oklahoma
appellate system,® the Oklahoma Supreme Court
issued a mandate to the trial court commanding
the trial court to show the affirmance of its judg-
ment of record. The mandate was received by the
district judge and ordered filed and spread of
record on@April 12, 1989. The mandate was then
filed in the district court on April 13, 1989.
*The Rules of the Oklahoma Court of Appeals provide that a petition for rehearing
shall be filed with the clerk of the court within 20 days from the date upon which the
opinion in the cause is filed. (See Rule 3.9 of the Rules of the Oklahoma Court of
Appeals and Rule 28 of the Rules of the Oklahoma Supreme Court.) Rule 3.13 of the
Rules of the Oklahoma Court of Appeals sets forth the criteria for review of a Court
of Appeals decision by the Oklahoma Supreme Court. Rule 3.13(b) states that ‘‘a
partv who did not petition for rehearing in the Court of Appeals may not petition for
certiorari.”
—14~—
Subsequently, on April 28, 1989, NAPCO filed
a petition for rehearing in the Oklahoma Court of
Appeals, more than 20 days after the date of the
opinion and several weeks after the mandate had
been filed and spread of record in the District
Court of Tulsa County. Rule 3.19 of the Rules of
the Oklahoma Court of Appeals provides that, if
there is no rehearing sought within the time pre-
scribed by Rule 3.9, or if a petition for rehearing
is denied and a writ of certiorari is not sought
from the Oklahoma Supreme Court as provided in
these rules, or if certiorari is denied by the Su-
preme Court, the Chief Justice will direct the
clerk of the Supreme Court to issue a mandate.
Consequently, when NAPCO failed to file a
petition for rehearing in the Oklahoma Court of
Appeals within 20 days after the date of the Okla-
homa Court of Appeals decision, it forfeited its
right to review of the Court of Appeals decision by
the Oklahoma Supreme Court. 28 U.S.C. §1257
requires that only final judgments or decrees
rendered by the highest court of a state in which a
decision could be had may be reviewed by the
Supreme Court.’
7It should be noted that this is not a case, such as California Retail Liquor Dealers
Association v. Midcal Aluminum, Inc., 455 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233
(1980), in which review of the intermediate appellate court’s decision by the state
court of last resort was sought and denied by the court of last resort. NAPCO never
sought review, by the Oklahoma Supreme Court, of the decision of the Oklahoma
Court of Appeals. NAPCO’s statements (Pet. 2, 8) that the opinion of the Oklahoma
Court of Appeals ‘‘was affirmed by the Oklahoma Supreme Court”’ are, in a word,
false. No such thing happened. Review by the Oklahoma Supreme Court was
available, but was never sought. If discretionary review by the state court of last
resort is available, that discretionary review must be sought. See Stratton v. Stratton,
239 U.S. 55, 36 S.Ct. 26, 60 L.Ed. 142 (1915); Matthews v. Huwe, 269 U.S. 262,
46 S.Ct. 108, 70 L.Ed. 265 (1925); Banks v. California, 395 U.S. 708, 89 S.Ct.
1901, 23 L.Ed.2d 653 (1969). Procedural default precluding review by the state
=
In Costarelli v. Massachusetts, 421 U.S. 193, 95
S.Ct. 1534, 44 L.Ed.2d 76 (1975), this Court held that
where the appellant could obtain state court ap-
pellate review of an adverse decision to a higher
state court, the appeal would be dismissed for
want of jurisdiction because 28 U.S.C. §1257 limits
United States Supreme Court review to the judg-
ments of highest state courts in which a decision
could be had. See also, Sandquist v. California,
419 U.S. 1066, 95 S.Ct. 651, 42 L.Ed.2d 662 (1974) and
Matthews v. Huwe, n. 7, supra.
Accordingly, because NAPCO failed to follow
the proper procedure to seek review of the Court
of Appeals decision to the Oklahoma Supreme
Court, this Court lacks jurisdiction to review the
1989 judgment of the Oklahoma Court of Appeals.
Proposition II
THE WRIT SHOULD BE DENIED FOR
WANT OF A SUBSTANTIAL FEDERAL
QUESTION.
In the event that this Court determines that it
has jurisdiction to review the opinions of the
Oklahoma appellate courts, the writ should still
be denied for want of a substantial federal ques-
tion. Rule 17 of the Rules of the United States
Supreme Court sets forth the character of reasons
that will support a writ of certiorari. The only
reason listed that has any applicability to the case
at bar is “when a state court... has decided a
federal question in a way in conflict with appli-
cable decisions of this Court.” (Rule 17(c)). In this
court of last resort is fatal to review in this Court. Gotthilf v. Sills, 375 U.S. 79, 84
S.Ct. 187, 11 L.Ed.2d 159 (1963).
case, the-federal question is whether the 1985
decision of the Oklahoma Supreme Court, assert-
ing-personal jurisdiction over NAPCO, is within
constitutional limits. When the facts in this case
are compared with the relevant decisions of this
Court, it becomes clear that the 1985 decision
does not conflict with this Court’s decisions.8
NAPCO manufactured engine parts for air-
craft engines. NAPCO was aware that there was a
nationwide competition to supply aircraft engine
parts to the few users of those parts and that the
market is a nationwide market. NAPCO does no
advertising because the engine manufacturers
and aircraft operators that are its customers are
all aware of NAPCO’s manufacturing capabilities.
NAPCO is aware that the market for fuel nozzle
nuts (the defective part at issue in this action) is a
nationwide market, and NAPCO intends to serve
that market when it manufactures the nuts. Fur-
ther, NAPCO had previously shipped fuel nozzle
nuts directly to Tinker Air Force Base in Okla-
homa. It was NAPCO’s expectation that its fuel
nozzle nut could be shipped anywhere in the
United States and used on very large engines
which could either fly to or be serviced at certain
locations all over the world. In 1980 and 1981,
NAPCO derived revenue between $14,760 and
"The petition for certiorari is laced with references to matters, such as choice of
law and evidentiary rulings, which ere wholly irrelevant to the question of ii
personam jurisdiction presented by the petition. Because of the irrelevance of these
points to the question presented, we have resisted the temptation to demonstrate at
length the reasons for which such matters as petitioner’s novel contentions as to
choice of law are, to put it charitably, without merit.
a: oe
$24,600 from the sale of 492 fuel nozzle nuts for
use in the State of Oklahoma by American Air-
lines. These facts show that NAPCO had sufficient
minimum contacts with the State of Oklahoma
and that there was a sufficient relationship be-
tween NAPCO, the forum and the litigation such
that NAPCO could reasonably anticipate being
haled into court in Oklahoma.
In Worldwide Volkswagen v. Woodson, 444
U.S. 286. 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), resi-
dents of New York purchased an automobile from.
a New York automobile retailer. The following
year, the plaintiffs, while passing through the
State of Oklahoma on their way to a new home in
Arizona, were involved in an automobile acci-
dent. The plaintiffs brought a products liability
action at the place the accident occurred, joining
as defendants the manufacturer, the importer, a
regional distributor and a retailer dealer. This
Court found that the regional distributor (whose
region was limited to New York, New Jersey and
Connecticut) and the retail dealer, located in New
York, did not possess sufficient minimum con-
tacts with the State of Oklahoma to warrant the
exercise of jurisdiction over them. However,
NAPCO’s position is completely different from
the position of the regional distributor and the
retailer in Worldwide Volkswagen. NAPCO, the
manufacturer of aircraft parts, seeks to serve and
does serve a nationwide market, whereas the
automobile wholesaler and retailer in Worldwide
only sought to serve a small, defined area. NAPCO
had previous direct contact with the State of
a)
Oklahoma and derived substantial revenues from
its products that were sold to Oklahoma buyers
and used in the State of Oklahoma.9
In Worldwide Volkswagen, this Court listed
several factors that should be considered in de-
termining whether or not it is reasonable to re-
quire a non-resident to defend a suit in a partic-
ular forum. These factors include the forum
state’s interest in adjudicating the dispute, the
plaintiff's interest in obtaining convenient and
effective relief and the interstate judicial sys-
tem’s interest in obtaining the most efficient res-
olution of controversies.
In the case at bar, Oklahoma, the forum state,
has an interest in adjudicating the dispute be-
cause the accident happened at a large service
facility that has been maintained by American
Airlines in the State of Oklahoma for many years.
A state generally has a manifest interest in pro-
viding its residents with a convenient form for
redressing injuries inflicted by out-of-state ac-
ters. Burger King Corp. v. Rudzewicz, 471 U.S. 462,
105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
°NAPCO highlights the fact that the fuel nozzle nuts were shipped f.o.b. its
Connecticut plant and that subsequent sales of the nuts from Ex-Cell-O and United
Technologies were also shipped f.o.b. at points outside of Oklahoma. Technical
considerations, such as f.o.b. noints, are irrelevant to a determination of whether or
not a non-resident defendant has sufficient minimum contacts with a state to enable
that state’s courts to exercise personal jurisdiction over it. International Shoe Co. v.
Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (personal jurisdiction
upheld even though all products were shipped into the State of Washington f.o.b.
points out of state). See also General Motors Corporation v. Washington, 377 U.S.
436, 84 S.Ct. 1564, 12 L.Ed.2d 430 (1964) and N.W. States Portland Cement Co.
v. State of Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959) (state’s
taxing power upheld on receipts from sales of products shipped into state f.o.b.
out-of-state locations, where other facts showed the tax bore a reasonable relation to
a
Further, American Airlines had an interest in
obtaining convenient and effective relief in Okla-
homa. In connection with its claim, American
Airlines sued companies with principal places of
business in Connecticut, Texas and Michigan. Any
of those forums would be inconvenient for Amer-
ican Airlines and most of the Defendants. Addi-
tionally, all of the witnesses to the accident were
in Oklahoma, as was all of the evidence of the
damage.
Finally, the interstate judicial system’s inter-
est in obtaining the most efficient resolution of
controversies militates in favor of an Oklahoma
forum since Oklahoma was the situs of the acci-
dent, and, again, the witnesses to the accident and
the evidence of the damage were all located in
Oklahoma.
Minimum contacts with a forum can be estab-
lished by a single act so long as it creates a
substantial connection with a forum. Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85
L.Ed.2d 528 (1985). Additionally, when a defen-
dant has availed itself of the privilege of conduct-
ing business in a forum, jurisdiction cannot be
avoided merely because the defendant did not
physically enter the forum state.
Moreover,
[tlhe forum state does not exceed its
powers under the Due Process Ciause if
the corporations’ activities in the state) and National Labor Relations Board v.
Friedman-Harry Marks C. Co., 301 U.S. 58, 56 S.Ct. 645, 81 L.Ed. 921 (1937)
(corporation found to be engaged in interstate commierce and, thus, subject to the
National Labor Relations Act despite fact that all orders were shipped f.o.b. from
one manufacturing plant in Richmond, Virginia).
— 2)...
it asserts personal jurisdiction over a
corporation that delivers its products
into the stream of commerce with the
expectation that they will be purchased
by consumers in the forum State. World-
wide Volkswagen Corporation v. Wood-
son, 444 U.S. 286, 297-298, 100 S.Ct. 559,
567, 62 L.Ed.2d 490 (1980).
In the case at bar, NAPCO sold fuel nozzle nuts to
Tinker Air Force Base in Oklahoma a few years
before the accident at the American Airlines
service facility. It continued to intend to serve a
nationwide market in airplane engine parts and
fuel nozzle nuts. NAPCO delivered its product
(the fuel nozzle nut) into the stream of commerce
with the expectation that either the fuel nozzle
nut or the engine of which the fuel nozzle nut was
a part would be purchased by consumers in Okla-
homa and every other state in the United States.
Thus, Oklahoma did not exceed the limits im-
posed by the Due Process Clause by asserting
personal jurisdiction over NAPCO.
In support of its argument that the Oklahoma
courts exceeded the limits imposed by the Due
Process Clause in asserting jurisdiction over it,
NAPCO cites the case of Ashai Metal Industries
Co. v. Superior Court of California, 408 U.S. 102,
107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). However, the
facts in Ashai Metal are distinguishable from the
facts in the case at bar. This Court recognized in
Ashai Metal that one of the facts critical to its
decision was the fact that the defendant was a
foreign defendant (a Japanese manufacturer of
tire valve stem assemblies). This Court consid-
ered not only the inconvenience of a California
forum but the fact that the Japanese manufac-
a, ee
turer would have to submit to a foreign judicial
system as well. Those concerns are not present in
the case at bar. NAPCO is an American, not a
Japanese, corporation which, in the past, had
directly done business with an Oklahoma resi-
dent and intended to be a part of the nationwide
market in aircraft engine parts. NAPCO did much
more than place its fuel nozzle nuts in the stream
of commerce; it sought to manufacture aircraft
engine parts that would be used by business con-
sumers (the manufacturers and purchasers of air-
craft engines) in every state in the United States.
Accordingly, because Oklahoma did not exceed
the limits imposed by the Due Process Clause by
asserting personal jurisdiction over NAPCO,
NAPCO has failed to present a substantial federal
question for review by this Court and, thus, the
writ shculd be denied.
CONCLUSION
Therefore, for the reasons discussed above,
NAPCO’s Petition for a Writ of Certiorari should
be denied.
Respectfully submitted,
/s/ Stephen P. Friot
STEPHEN P. FRIOT
BARBARA L. SWIMLEY
SPRADLING, ALPERN, FRIOT & GUM
101 Park Avenue, Suite 700
Oklahoma City, Oklahoma 73102
Telephone: 405/272-0211
Counsel for Respondents
A-1
APPENDIX A
IN THE SUPREME COURT
OF THE STATE OF OKLAHOMA
No. 60,005
AMERICAN AIRLINES INC.,
A DELAWARE CORPORATION,
Appellant,
VS.
UNITED TECHNOLOGIES, INC.,
Ex-CELL-O CORPORATION, AND
NATIONAL AUTOMATIC PRODUCTS COMPANY,
Appellees.
Appeal From the District Court
of Tulsa County
Honorable Clifford E. Hopper
Appeal from nunc pro tunc order granting motions
to dismiss for lack of personal jurisdiction over non-
resident corporations pursuant to 12 O.S. 1981, §1701.3.
REVERSED AND REMANDED
H. Jerome Gette
Robins, Zelle, Larson & Kaplan
Dallas, Texas
Gene C. Buzzard
Waddell & Buzzard For Appellant,
Tulsa, Oklahoma American Airlines, Inc.
Kirk D. Fredrickson ,
James T. Dupre’
Fredrickson, Merrick & Patton
Oklahoma City, Oklahoma For Appellees,
National Automatic
L. Ray Pearce Products Co., Comtec,
The Carlton Firm Inc., & Commercial
Dallas, Texas Technology, Inc.
DOOLIN, J.
We must determine, consistent with due process
requirements, whether a nonresident tool manufac-
turer which conforms its parts to the specifications of
users and a nonresident distributor of those parts may
be sued in Oklahoma, where the allegedly defective
part was delivered and where it caused substantial
property damage to the user.
The facts of this action are undisputed. Pursuant
to customer specifications, defendant NAPCO manu-
factures aircraft parts and components. In this case,
NAPCO manufactured fuel nozzle nuts according to
specifications provided by, and an order placed by,
defendant Ex-Cell-O. The nuts were then delivered
“F.O.B. Connecticut” to a carrier for shipment to Ex-
Cell-O’s Michigan plant, where they were shipped
“F.O.B.” to defendant United Technologies, Inc.
(United) in Connecticut. United, in turn, sold the nuts
to American Airlines, shipping them “F.O.B. Connect-
icut’” to New York. American then transported the
nuts to its aircraft maintenance facility in Tulsa, Okla-
homa. After the nut was installed in a JT-9 engine, its
allegedly improper tolerances allowed fuel to leak
and ignite, thereby damaging American’s property in
the amount of $1,000,000.
A suit based on negligence, implied warranty, and
strict liability was brought against NAPCO, Ex-Cell-O
and United Technologies, Inc. in the District Court of
Tulsa County. Comtec, Inc. (Comtec) and Commercial
Technology, Inc. (Commercial), the alter egos of
NAPCO, were later joined as additional defendants.
These defendants each filed a special appearance and
a motion to contest personal jurisdiction. After a
hearing on the motions, it was stipulated that Ex-Cell-
A-3
O would not contest Oklahoma jurisdiction unless
NAPCO and United were held subject to it. Similarly,
liability of Comtec and Commercial would exist only if
NAPCO is liable.
By its nunc pro tunc order, the trial court granted
the NAPCO and United motions to dismiss and subse-
quently granted the Comtec and Commercial motions
to dismiss. From these orders dismissing the defen-
dants for lack of personal jurisdiction, American ap-
peals.
The Supreme Court, in McGee v. International Life
Ins. Co., 355 U.S. 220 (1957), and International Shoe Co.
v. State of Washington, 326 U.S. 310 (1945), determined
that a nonresident is subject to personal jurisdiction
in a torum with which he has minimum contacts if
doing so does not offend the traditional notions of
fair play and substantial justice. The substantiality of
contact with a forum state, however, is determined by
tne facts of each individual case. Vacu-Maid v. Coving-
ton, 530 P.2d 137, 139 (Okl. 1974).
In Oklahoma, personal jurisdiction over a nonres-
ident is governed by 12 O.S. 1981, §1703.03, which
provides:
“(a) A court may exercise personal jurisdiction
over a person, who acts directly or by an agent, as
to a cause of action or claim for relief arising from
the person’s »
(1) transacting any business in this state;
(2) contracting to supply services or things in
this state;
(3) causing tortious injury in this state by an
act or omission in this state;
(4) causing tortious injury in this state by act
or omission outside this state if he regu-
larly does or solicits business or engages in
any other persistent course of conduct, or
) \
4
A-4
derives substantial revenue from goods
used or consumed or services rendered, in
this state;
(5) having an interest in, using, or possessing
real property in this state; or =
(6) contracting to insure any person, property,
or risk located within this state at the time
of contracting, or
(7) maintaining any other relation to this state
or to persons or property including support
for minor children who are residents of
this state which affords a basis for the
exercise of personal jurisdiction by this
state consistently with the Constitution of
the United States.
(b) When jurisdiction is based solely upon this
section, the defendant’s appearance does not au-
thorize the exercise of personal jurisdiction ex-
cept as to a cause of action or claim for relief
arising in the circumstances enumerated in this
section.”
This “Long arm” statute extends jurisdiction of Okla-
homa courts over nonresidents to the outer limit per-
mitted by the due process clause of the 14th Amend-
_ment. That clause does not permit a state to “make
binding a judgment in personam against an individual
or corporate defendant with which the state has no
contacts, ties, or relations.’”’ Henderson v. University
Associates, Inc., 454 F. Supp. 493, 494 (N.D. Okl. 1977)
[emphasis added]. Further, it is not the conduct of
the plaintiff that determines jurisdiction, but the con-
duct of the defendant. Jem Engineering & Mfg., Inc. v.
Toomer Electrical Co., 413 F. Supp. 481 (N.D. Okl.
1976).
The Court of Appeals in Vacu-Maid, supra, stated
that personal jurisdiction unquestionably would be
upheld, “where the nonresident defendant is a seller
A-5
who has shipped goods into Oklahoma, even if such
shipment were an isolated or infrequent occurrence.”
It makes no difference whether the nonresident deals
directly or indirectly with the residents of the forum
state. Carmack v. Chemical Bank New York Trust Co.,
536 P.2d 897, 900 (Okl. 1975). However, it is essential
that the nonresident ‘purposefully avails himself of
the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its
laws.” Hudson v. Hudson, 569 P.2d 521, 524 (Okl. App.
1976) [emphasis added], citing from Hanson v. Denckla,
357 U.S. 235 (1958).
The Oklahoma Supreme Court has denied per-
sonal jurisdiction where the nonresident transacted
no business in Oklahoma, engaged in no relationship
with a resident in any transaction, and had no offices,
employees, agents, or representatives in the state.
Barnes v. Wilson, 580 P-2d 991, 993 (Okl. 1978); Archi-
tectural Building Components Corp. v. Comfort, 528
P.2d 307, 319 (Okl. 1974). The Court also did not exer-
cise personal jurisdiction over the nonresident corpo-
ration in Precision Polymers, Inc. v. Nelson, 512 P.2d
811 (Okl. 1973). In Precision, the nonresident manufac-
turer who fabricated allegedly defective materials for
construction projects in Oklahoma and Missouri, sold
these materials to a nonresident distributor, and de-
livered them to sites in Oklahoma. However, the man-
ufacturer never transacted any business or committed
any act in Oklahoma in connection with the Missouri
project, the subject of the lawsuit. Because the manu-
facturer committed no act to subject it to Oklahoma
jurisdiction, jurisdiction was denied.
Jurisdiction has been upheld, however, where a
nonresid@yt manufacturer who fabricated defective
component parts of an aircraft outside the forum state,
sold them within the state where death occurred, and
derived substantial revenues from the sales in the
forum state. Paddock v. Bensen Aircraft Corp., 293
A-6
F.Supp. 745 (W.D. Okl. 1968). Jurisdiction also was
found where a nonresident, who had caused tortious
injury in the forum state, merely gained substantial
revenues therein. Oral Roberts Univ. v. Automatic
Switch Co., 319 F.Supp. 381 (N.D. Okl. 1970).
At first glance the present case seems aligned with
Precision, supra; but it is clearly distinguishable. That
is, we are confronted with a nonresident manufac-
turer, supplier, and distributor, but we cannot say that
these entities maintained no relations with, or ties to,
Oklahoma.
The record establishes sufficient contacts with the
State. The United representative testified in his dep-
osition that the fuel nozzle nut was designed for na-
tional and international distribution. To reach these
markets, United advertises in national periodicals
and engages in “vigorous and very fine advertising
* * * on television and in the papers: although it
focuses on no given state. While it (or its division, Pratt
& Whitney) conducts no sales, transfers no title, and
warehouses no goods in Oklahoma, Oklahoma is one
state likely to receive a greater portion of its products.
In fact, in 1979, 1980 and 1981, United indirectly sup-
plied goods to Oklahoma. American estimates that it
alone used $80,000,000 worth of parts in Oklahoma in
1980 and 1981. In addition to deriving substantial
revenues from Oklahoma, United maintains personnel
at Tinker AFB and at American’s overhaul facility in
Tulsa. With regard to United, its activities were suffi-
cient to establish the minimum contacts required by
law, and it was an abuse of discretion for the trial
court to hold otherwise.
The NAPCO representative also testified that his
company “intended to serve as much of the nationwide
market as it could.” In fact, it expected that the fuel
nozzle nut would “end up” at whatever service facili-
ties demanded them. American estimated that it re-
ceived 492 fuel nozzle nuts, resulting in gross revenues
A-7
to NAPCO of $14,760 to $24,000. While NAPCO’s ties to
Oklahoma are less than United’s, they still fall well
within the minimum contacts required by due process.
Although the nonresident defendants actively
court the State of Oklahoma for business, either di-
rectly or indirectly, they attempt to escape liability for
damage caused therein merely by designating the
place of title transfer (F.0.B. Connecticut) as the
proper forum in which to be sued. Such conduct
frustrates, not enhances, the notions of fair play and
substantial justice, and is a perfect example of one
who bites the hand that feeds it.
Accordingly, the orders of the trial court dismiss-
ing the defendants for lack of personal jurisdiction
are reversed and the cause is remanded for a deter-
mination on the merits.
REVERSED AND REMANDED.
Barnes, Opala, Wilson, Kauger, JJ. - concur
Sims, C.J., Hodges, Lavender, Hargrave, JJ. - dissent
B-1
APPENDIX B
IN COURT OF APPEALS, DIVISION 4
STATE OF OKLAHOMA
No. 68,771
AMERICAN AIRLINES, INC.,
Appellee,
VS.
Ex-CELL-O CORPORATION,
Appellee,
and
NATIONAL AUTOMATIC PRODUCTS COMPANY AND COMMERCIAL
TECHNOLOGY, INC..
Appellants.
Appeal From the District Court
of Tulsa County, Oklahoma
Honorable Daniel J. Boudreau, Trial Judge
Stephen P. Friot
Barbara L. Swimley
Spradling, Alpern, Friot & Gum
Oklahoma City, Oklahoma For Appellees
B. David Gambill
Kelly & Gambill
Pawhuska, Oklahoma
Joe B. Abbey
Law Offices of Joe B. Abbey
Dallas, Texas For Appellants
B-2
MEMORANDUM OPINION
BACON, J.
This is an appeal from a judgment based on a jury
verdict in favor of American Airlines for damages
occasioned by a defective fuel nozzle nut that caused a
fire which damaged a jet engine and test cell.
In August 1982, American Airlines, Inc., (Amer-
ican) filed suit against United Technologies, Inc.
(United), Ex-Cell-O Corporation (Ex-Cell-O), and Na-
tional Automatic Products Company (NAPCO) for dam-
ages due to an alleged defective fuel nozzle nut.
The fuel nozzle nut was manufactured by NAPCO,
who in turn sold it to Ex-Celi-O, who in turn sold it to
Pratt and Whitney, a division of United, who in turn
sold it to American. American’s suit was based on
negligence, breach of implied warranty, and manufac-
turer’s products liability as to all defendants.
Thereafter, American filed amended petitions
joining Commercial Technologies, Inc. (Commercial)
and Comtec, Inc., as additional defendants, alleging
that NAPCO was an instrumentality of Commercial
and Comtec, and that they should be held liable along
with NAPCO.
Ex-Cell-O filed a cross-petition against NAPCO,
Commercial, and Comtec for indemnification. All of
the defendants filed special appearances and motions
to quash and pleas to the jurisdiction. The trial court
granted the motions of United and NAPCO. American,
in turn, appealed and on January 20, 1985, in case No.
60,005, the Supreme Court reversed and remanded the
order to the trial court, finding that there was per-
sonal jurisdiction as to NAPCO, Commercial, aiid
United.
Prior to trial, American settled with United and
dismissed United with prejudice. American also set-
B-3
tled with Ex-Cell-O, and thereafter, American and
Ex-Cell-O proceeded to trial against NAPCO, Commer-
cial and Comtec.
Based on a motion made by NAPCO, the trial court
bifurcated the proceedings. The first trial was to de-
termine the liability of NAPCO, if any, and determine
the amount of the damages, if any. The jury found
NAPCO liable and fixed damages at $944,545.90.
The second trial was to determine whether
NAPCO was an instrumentality of either Commercial
or Comtec, or both, and thus liable for the same
damages. At the conclusion of the second trial, the
jury found that NAPCO was an instrumentality of
Commercial, but not Comtec.
NAPCO and Commercial filed timely motions fora
new trial which were overruled by the trial court. It is
from this ruling that they appealed. Subsequently,
American assigned any interest in the judgment ap-
pealed from to Ex-Cell-O.
After briefing was concluded, Ex-Cell-O and Com-
mercial entered into a settlement agreement, and the
parties agreed to dismiss the pending appeal as to
Commercial only. Thus, the issues of error raised on
appeal are moot as to Commercial only and we ad-
dress only those points of error raised by NAPCO, the
sole remaining appellant.
The first issue to be addressed is the alleged lack
of personal jurisdiction as to NAPCO. This issue has
already been decided in Case No. 60,005, wherein the
court held that the order of the trial court dismissing
United, Ex-Cell-O, and NAPCO was reversed and re-
manded for a determination on the merits. Once the
question of jurisdiction has been raised and decided,
that operates to disallow any future litigation of that
issue. Veiser v. Armstrong, 688 P.2d 796, 802 (Okia.
1984).
B-4
Also raised as error is the denial by the trial court
of a continuance when NAPCO’s expert witness, Mr.
Richard Allen Smith, was hospitalized and unable to
appear. The trial court talked to the doctor and deter-
mined that he could be deposed and ordered the
parties to do so on a day certain before trial. NAPCO
did not do so. NAPCO sought to offer segments of an
earlier deposition dealing with matters requiring ex-
pertise in a certain area. The trial court examined the
deposition and concluded that there was no evidence
Mr. Smith was qualified as an expert by knowledge,
skill, experience, training, or education in subject
area.
NAPCO then sought to have Mr. Lennehan substi-
tute as an expert witness. He had at one time been
endorsed as a witness, but NAPCO withdrew his name,
and thus, no discovery had been conducted as to the
testimony of Mr. Lennehan. The trial court denied the
request.
The question of the qualifications of an expert
witness is left to the sound discretion of the trial court,
and its ruling will not be disturbed on appeal in the
absence of a showing of abuse of discretion. City of
Holdenville v. Griggs, 411 P.2d 521 (Okla. 1966).
We find no abuse of discretion on the part of the
trial court in its ruling as to the lack of qualifications
of Mr. Smith as an expert witness, nor the denial of the
request for Mr. Lennehan to testify as a substitute for
Mr. Smith when his name had been withdrawn as a
witness and he was not listed on the pre-trial order.
Allowing or denying admission of evidence rests
in the sound discretion of the trial court. Jordan v.
General Motors Corporation, 590 P.2d 193, 196 (Okla.
1979). Upon review of the record we find no reversible
error in respect to the trial court’s decisions on the
admissibility or inadmissibility of either evidence or
testimony.
B-5
Where the trial court exercises its sound discre-
tion in passing on the question of mistrial, its finding
cannot be disturbed on appeal in the absence of a
clear abuse of discretion. Jordan, supra, 195. We find
no such abuse.
NAPCO urges error on the part of the trial court in
admitting evidence of the 1972 convictions of Mort
Zimmerman, as principal officer of Commercial, on
three counts of mail fraud and securities fraud. 12 O.S.
1981 § 2609(B), permits the introduction of a conviction
over ten years old if its probative value substantially
outweights its prejudicial effect, and NAPCO was
given sufficient advance notice of the intent to use
such evidence. United States v. Cathey, 591 F.2d 268,
275 (5th Cir. 1979).
We find that the trial court did not err in admitting
the witness’s crimes involving dishonesty over ten
years ago, in that we cannot say the prejudicial effect
of such evidence substantially outweighted its proba-
tive value.
It is additionally urged that the trial court erred in
applying Oklahoma manufacturers’ products liability
law, which imposes strict liability, rather than ‘fed-
eral procurement law.” This is premised on the con-
tract standards of quality control being government
military standards, i.e., MLT-STD-105D, in the manu-
facture of the fuel nozzle nut.
NAPCO’s proposition is that either preemption or
federal contract law should prevail over state law. We
find no uniquely federal interests involved herein nor
any congressional authority to fashion a federal com-
mon law as to product liabilities. Texas Industries,
Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 68 L.ed.2d
500, 101 S.Ct. 2061 (1981).
Where conflicting evidence has been presented to
the jury and its verdict is supported by competent
evidence, it will not be disturbed on appeal. Mitchell
B-6
v. Ford Motor Credit Co., 688 P2d 42 (Okla. 1984). We
find there is competent evidence to support the ver-
dict of the jury.
The judgment of the trial court in all respects is
AFFIRMED.
BRIGHTMIRE, PJ., concurs, and RAPP, J., dissents.
RAPP. J., dissenting
This is an issue of products liability not at all
dissimilar to the old rhyme — “for want of a nail a shoe
was lost, for want of a shoe, a horse... .”! Here, a nut’s
wrong dimension resulted in a sequence of events
culminating in an engine test cell fire. The issue of
products liability was: did NAPCO manufacture and
put into the stream of commerce a nut not in confor-
mity with its engineering specifications? The evidence
was that it did at some point during the years 1979 and
1980. Moreover, the evidence indicated a dimensional
problem existed with this type of nut in NAPCO’s
manufacturing process as early as 1976, which re-
quired it to initiate one hundred percent inspection.?
This manufacturing problem apparently continued at
least through 1980, when the nut was manufactured.
NAPCO was acquired by H.P. Townsend Co. in
~1979. Comtec was organized in March 1980. Zimmer-
man was chairman of the board of directors of Comtec.
Comtec subsequently acquired NAPCO.
Zimmerman’s first contact with NAPCO was in
August 1979, when NAPCO contracted with a separate
company to provide it with financial and legal func-
tions and tax reporting services. Zimmerman was a
member of this company’s staff. The record is totally
‘George Herbert, “‘Love.”’
“It is well known within manufacturing that even one hundred percent inspection
will not find and remove all defective units. Acheson J. Duncan, Quality Control &
Industrial Statistics (1962).
B-7
devoid of any evidence Zimmerman was involved in
any manner with either the engineering and develop-
ment or manufacturing of the nut in question.
The purported usage of Zimmerman’s conviction
for mail fraud and securities violations for impeach-
ment purposes was so far removed from the reality of
the trial issues as to be patently asinine. It was in-
tended and used for a single purpose in contravention
of the statute’s intent regarding convictions in excess
of ten years? — to smear and diminish not only the
testimony and character of Zimmerman, but also of all
associated with him. His conviction had no probative
value nor was it even remotely connected with the
principal issue, other than to function as a firebrand
to inflame the jury and induce bias and prejudice into
their minds. It is obvious it did this work well. Accord-
ingly, I would hold this single issue prevented a fair
and impartial trial and so blinded the jury that it must
be reversed and remanded for a new trial.
Title 12 O.S. 1981 § 2609; see also Fed. R. Evid. 404(a), which strictly limits
when character evidence may be admitted to show acts in conformity with the
criminal conviction. The court, in Perrin v. Anderson, 784 F.2d 1040, 1044 (10th
Cir. 1986), stated, “‘Although the literal language of the exceptions to Rule 404(a)
applies only to criminal cases, we agree with the District court here that, when the
central issue involved in a civil case is in nature criminal, the defendant may invoke
the exceptions to Rule 404(a).’’ Here, in this matter under review, the question and
issue were strictly civil.
C-1
APPENDIX C
IN THE DISTRICT COURT FOR TULSA COUNTY
STATE OF OKLAHOMA
C.A. NO. CT-82-739
AMERICAN AIRLINES, INC.,
Plaintiff.
VS.
UNITED TECHNOLOGIES, INC.,
A DELAWARE CORPORATION,
Ex-CELL-O CORPORATION,
A MICHIGAN CORPORATION, AND
NATIONAL AUTOMATIC PRODUCTS Co.,
A CORPORATION,
Defendants.
Nunc Pro Tune Order Granting the Motions
to Dismiss of United Technologies, Inc. and
National Automatic Products Co. and Re-instating
the Cause of Action of American Airlines, Inc.
Against Ex-Cell-O Corporation
The Court has reviewed the motion of Plaintiff
AMERICAN AIRLINES, INC., in the above-entitled
cause asking that the Order granting the motions to
dismiss of Defendants UNITED TECHNOLOGIES,
INC., NATIONAL AUTOMATIC PRODUCTS CO. and
EX-CELL-O CORPORATION be amended nunc pro
tune as of the date of the entry thereof to delete all
reference to EX-CELL-O CORPORATION. Since De-
fendant EX-CELL-O CORPORATION has no objection
to the Court granting this motion, the motion is hereby
granted.
IT IS, THEREFORE, ORDERED by the Court that
the motion of Plaintiff AMERICAN AIRLINES, INC.
C-2
that the Order herein granting the Motions to Dismiss
of UNITED TECHNOLOGIES, INC., NATIONAL AU-
TOMATIC PRODUCTS CO. and EX-CELL-O CORPO-
RATION be amended nunc pro tunc as of the date of
the entry thereof as follows:
Now on this 25th day of March, 1983, the Court
having heretofore taken under advisement the objec-
tions to in personam jurisdiction and motions to dis-
miss for lack of personal jurisdiction of Defendants
UNITED TECHNOLOGIES CORPORATION and NA-
TIONAL AUTOMATIC PRODUCTS CoO.; and the Court
having heretofore considered the pleadings, affida-
vits, depositions, briefs, and having heard oral argu-
ment of counsel on February 23, 1983, at which time
the parties each appeared by counsel.
Now, therefore, being fully advised, the Court
finds that Defendants UNITED TECHNOLOGIES, INC.
and NATIONAL AUTOMATIC PRODUCTS CoO.’S ob-
_ jections and combined motions to dismiss for lack of
personal jurisdiction are meritorious and are sus-
tained. Plaintiff's causes of action as against Defen-
dants UNITED TECHNOLOGIES, INC. and NA-
TIONAL AUTOMATIC PRODUCTS CO., are hereby
severed from the case and are hereby dismissed, with
exceptions granted to the Plaintiff.
IT IS SO ORDERED.
SIGNED on this the 30th day of March, 1983.
/s/CLIFFORD E. HOPPER
DISTRICT JUDGE
APPROVED AS TO FORM:
/s/P-C. HUNSUCKER
H. Jerome Gette
Philip C. Hunsucker
ATTORNEYS FOR PLAINTIFF
AMERICAN AIRLINES, INC.
/s/STEPHEN P. FRIOT
ATTORNEY FOR DEFENDANT
EX-CELL-O CORPORATION
D-1
APPENDIX D Mandate received and or-
dered filed and spread of
STATE OF OKLAHOMA record this llth of April,
SUPREME COURT 1985.
MANDATE s/ Clifford J. Hopper
t P Judge
No. 60,005
Tulsa County District Court
CT-82-739 Filed
April 12, 1985
AMERICAN AIRLINES, INC. ae TP heeite
VS. Court Clerk
State of Okla.,
UNITED TECHNOLOGIES, INC.. Tulsa County
Ex-CELL-O CORPORATION, ET AL
THE SUPREME COURT OF OKLAHOMA:
To the Honorable Judge of the District Court of
Tulsa County in said State of Oklahoma.
Whereas, the Supreme Court of the State of Okla-
homa, did on the 29th day of January, 1985 render an
Opinion in the above entitled cause, appealed from
the District Court of Tulsa County.
REVERSED AND REMANDED
(with attached correction order dated 3-5-85)
Now, Therefore, you are hereby commanded to
cause such Reversing and remanding to show of
record in your court and to issue such process and
take such other and further action as may be in accord
with right and justice and said Opinion.
Witness, the Honorable Robert Simms, Chief Jus-
tice of the Supreme Court of the State of Oklahoma, at
the City of Oklahoma City, this 11th day of March, 1985.
/s/JJAMES W. PATTERSON
CLERK
By Barbara Clenney, Deputy
E-1
APPENDIX E Mandate received and
ordered filed and spread
STATE OF OKLAHOMA of record this 12th day of
SUPREME COURT April.
MANDATE s/ Daniel J. Boudreaux
— , Judge
No. 68.771
Tulsa County District Court
CT82739 District Court
eee ie ee Reais +f Filed
AMERICAN AIRLINES, INC., April 13, 1989
EX-CELL-O Corp Don E. Austin
VS. Court Clerk
State of Okla.,
AT amin ' m OD rome (*
NATIONAL AUTOMATIC PRODUCTS Co, Tulsa County
COMMERCIAL TECHNOLOGY, INC
THE SUPREME COURT OF OKLAHOMA:
TO THE HONORABLE JUDGE OF THE DISTRICT
COURT OF TULSA COUNTY IN SAID STATE OF
OKLAHOMA.
WHEREAS, THE COURT OF APPEALS OF THE
STATE OF OKLAHOMA, DID ON THE 07TH DAY OF
MARCH, 12959 RENDER A MEMORANDUM OPINION
IN THE ABOVE ENTITLED CAUSE, APPEALED
FROM THE DISTRICT COURT OF TULSA COUNTY.
AFFIRMED
NOW, THEREFORE, YOU ARE HEREBY COM-
MANDED TO CAUSE SUCH AFFIRMANCE TO SHOW
OF RECORD IN YOUR COURT AND TO ISSUE SUCH
PROCESS AND TAKE SUCH OTHER AND FURTHER
ACTION AS MAY BE IN ACCORD WITH RIGHT AND
JUSTICE AND SAID OPINION.
WITNESS, THE HONORABLE RUDOLPH HAR-
GRAVE, CHIEF JUSTICE OF THE SUPREME COURT
OF THE STATE OF OKLAHOMA, AT THE CITY OF
OKLAHOMA CITY, THIS 06TH DAY OF APRIL, 1989.
/s/JJAMES W. PATTERSON,
CLERK
By Debbi Dolnci, Deputy
5 eeneneemeaie
F-]
APPENDIX F
IN THE DISTRICT COURT
IN AND FOR TULSA COUNTY
STATE OF OKLAHOMA
NO. CT 82 739
AMERICAN AIRLINES, INC.,
A DELAWARE CORPORATION,
Plaintiff.
VS.
UNITED TECHNOLOGIES, INC.,
A DELAWARE CORPORATION,
E}x-CELL-O CORPORATION,
A MICHIGAN CORPORATION, AND
NATIONAL AUTOMATIC PRODUCTS COMPANY,
A CORPORATION,
Defendants.
EXCERPTS FROM THE DEPOSITION OF
MR. CARL PETERSON TAKEN DECEMBER 20, 1982
BEFORE DANIEL S. NIZIANKIEWICZ,
CERTIFIED SHORTHAND REPORTER
p. 16
THE DEPONENT: Some housings, nozzles, I said.
BY MR. GETTE:
Q How are orders generated from your company?
A Well, actually through personal contact with
the customer.
Q Okay. You have a sales force, I presume?
A No. Iam the salesman.
Q You are the sales force?
F-2
A Yes.
® You contact the customer?
A Icall on the customer, yes.
Q They have needs which you hope your company
can meet?
A Yes.
@ You discuss those at your meetings with them
and sales results?
A Yes.
Q Is that right?
A That is it.
Q Who are some of your customers?
A Pratt and Whitney, of course, is our largest,
Ex-Cell-O Corporation, Chrysler Industrial, and that is
about the bulk of it. We have others, but many other
small accounts.
p. 27
Q So, all of the parts you manufacture for
Chrysler, when the production is complete, National
Auto sends those parts to Elmwood Park, New Jersey,
is that correct?
A Yes, they do.
Q As I recall from your earlier testimony, Na-
tional Auto primarily manufactures parts for the air-
lines industry, is that right?
A Yes.
Q@ You manufacture parts for all types of aircraft,
or do you limit your manufacturing to certain types of
aircraft?
A Engine parts only.
F-3
Q How many engineers does National Auto em-
ploy?
A One designated as engineer, but actually three
get involved.
Q Who are these folks?
A Ted Boryccki.
MR. KATZ: Spell it.
THE DEPONENT: I am thinking, B-O-R-Y-
C-C-K-I, I believe.
MR. GETTE: I misspelled that one on my
notes.
MR. KATZ: Carl might have, too.
MR. GETTE: I wasn’t even in the ballpark.
p. 30
A Yes, I do.
Q What nut are we referring to?
A Part number 748333-B.
Q What is that part used for?
A Well, it is a fuel nozzle, it is used for the
propulsion or part of it in the engine.
Q Do you know what engine it is used in?
A Iam not sure, no.
Q Is there anyone at your company that knows
that information?
A Well, I'd have to say that if the blueprint is
marked with the engine model we assume it is going on
to that, but we don’t know.
Q Okay. Have you checked the blueprint to make
a determination whether that blueprint contained the
engine model?
F-4
It does.
What engine model?
The JT-9.
And you checked, that is, yourself personally?
I did.
Q Although you may not know it is going to go on
a JT-9, that is your assumption in the manufacturing
process?
A Yes.
Q What is a JT-9 engine?
ee ae
p. 31
A Well, how do you want me to describe it?
Q As best you know how.
A Well, it is an engine like any other jet engine,
and it is manufactured by Pratt and Whitney for com-
mercial use.
Q Okay. Let —
A Commercial or military. I have to amend that.
Q Let me see if I can break it down a little more.
As I understand it, airplanes come in all shapes and
sizes, from very small to very large, could aJT-9 engine
be used on any sized airplane?
A I would say so.
Okay. Why do you say that?
Because of the size of the engine.
Is it a large engine?
It is a large engine, yes.
Is it one of the largest engines there is?
That I don’t know.
> O PP O Pp
F-5
Q But it is a large engine?
A Itis a large engine.
Q Inthe whole spectrum of engines, this is a big
engine?
A Yes.
Q Are you aware of any planes that this engine
would be used for?
p. 32
It is used on the 747.
How do you know that?
Well, I have seen them on the 747.
So, you know that personally?
Yes, I do.
Q ThataJT-9 engine is manufactured for use ona
G
747, it is a Boeing 747, right?
A Yes.
Q Do you know if a JT-9 is used on any other
aircraft?
A Idon’t know.
Q Would it be your assumption it is used on any
other aircraft, a comparable model to a Boeing 747?
> O- O >
A I would say by size, yes.
Q Okay. Have you ever seen it on any other Boe-
ing aircraft, like a 727, or any other?
A No.
Q Do you know if the JT-9 engine is used on some
of the new aircraft, Boeing is coming out with, I
believe, the 767?
A No, I don’t.
F-6
You just don’t know that?
No, I don’t.
Does anyone in your company know that?
> O Pp
I am sure there is someone that must know, but
p. 36
No, I don't.
Any ballpark idea?
No.
But you think sometime after 1970?
Definitely, yes.
O>rO>O >
Pratt and Whitney manufactures that engine, is
that right?
A Yes.
Q Have you ever had any discussions with any
Pratt and Whitney individuals about'the JT-9 engine?
A I[imagine I must have. I have been doing busi-
ness with them all these years, I am sure I did.
Q Iwould assume in some of your sales meetings
where you’re promoting your company and they are
promoting their company, they would tell you, “We
have got a new engine, and we would like your com-
pany to do some parts for it,” that conversation must
have come up sometime?
A Well, it doesn’t happen just that way.
Q Okay. That is an oversimplification maybe?
A No, we, again, we manufacture details, at the
time of the manufacture, it is our capability rather
than what engine it goes on that is considered.
Q So, you have a role in production of airline
parts that the airline industry is aware of, is that right,
you have a capability?
F-7
p. 37
A Yes.
Q That the airline industry is aware of?
A No, I should say no to that. The engine manu-
facturers are.
Q Are aware of?
A Yes.
Q And they can tap into your market?
A Yes.
Q Based on their need for your capability.
A Yes.
Q Could you describe for me as clearly as you can
what your capability is?
A We have a limit by part size, we go from one-
half inch up to ten inches in diameter. We have equip-
ment capable of that range.
Q So, if Iam an engine manufacturer and I have
got a part size in that range, I know that National Auto
can supply that part to me, is that right?
A Yes.
Q Now, when did National Auto start manufac-
turing part number 748333-B?
A 1979.
Q How did this order come to be placed?
MR. KATZ: Are you talking about the
first order?
p. 40
Q Okay. Do you know which one of these individ-
uals was responsible for the request for quotation on
this fuel nozzle nut we are talking about?
F-8
A No, I don't.
Q Butit would have had to have been one of those
two?
A I would say so, yes. That information is avail-
able, but I don’t have it.
Q Would the name be on the request for quota-
tion, the name of the individual who sent the request?
A I don’t know. They don’t always indicate the
person’s name.
Does Mr. Snyder work for Ex-Cell-O”?
Yes, he does.
Q Sometimes they do, and sometimes they don't?
A Yes. =
Q Okay. |
A Itis not a hard and fast rule.
Q Okay. Does Mr. Crozier still work for Ex-Cell-O?
A Yes, he does.
Q Inthe Purchasing Department?
A No.
Q Do you know what department he is in now?
A No, I don't.
Q
A
Q
Do you know what department?
p. 41
A Now, in Planning.
Q Did you have any discussion with either Mr.
Crozier or Mr. Snyder prior to the time they created
this request for quotation that they were going to do
that?
A No, we are an approved vendor for them, and
we have the opportunity to quote on everything that
goes through the Purchasing Department.
——
F-9
Q Who are some of your competitors?
A Badger Marine. This is for Ex-Cell-O, you are
asking this question, competitors for Ex-Cell-O?
Q Okay, I will limit it to Ex-Cell-O for right now.
A That is the only competitor that I know of.
Q Badger Marine?
A Marine.
Q Where is Badger Marine located?
A They are in Michigan. I don’t know where.
Q@ Do you have any competitors for Pratt and
Whitney?
A Oh, yes.
Q Who are some of those?
A There are many.
Q Nationwide?
A Yes.
Q How about for Chrysler Corporation, is that
like Ex-Cell-O or like Pratt and Whitney?
A Like Ex-Cell-O.
p. 47
A There is more than one purchase order num-
ber, so, it is more than one order, but whether it was
quoted again, as you Say, I don’t know.
Q I believe you have disclosed that in total for
1979 and 1980 and 1981 on this part number National
Auto Part manufactured 11,007 parts?
A Yes.
Q Okay, and this was pursuant to, you think, one
quote, but more than one purchase order?
F-10
A Yes.
How many purchase orders are you aware of?
Two I am sure of.
There may be a third?
> O - ©
There may be a third, I would have to check.
Q What were the shipping instructions with re-
spect to this part, if you remember’?
A The shipping instruction, of course, gives us
the packaging, the method of packaging, and the
schedule of shipments to Zeeland, Michigan.
Q To Zeeland, Michigan?
A Yes.
Q In Zeeland, I don’t know, where is Zeeland in
Michigan?
A Do you know where Holland, Michigan is?
Q My understanding is that is on the west side of
p. 50
Q It takes highly skilled people to manufacture
these parts?
A Yes.
Q Because it is made with very close tolerances,
is that right?
A Yes,
Q And it is an expensive part, it is more than five
cents a piece, isn't it?
A Itis.
Q Do you know how much, for instance,this part
would cost?
A Today’s prices?
F-11
Q Yes, today’s prices. Today’s American dollar
prices.
A_ In the vicinity of $50.
Q How much in ’79, do you think?
A Probably 30, $35.
Q That would be the price somebody would pay
you to manufacture it?
A Yes.
@ Not your actual manufacturing cost?
A No, that is the selling price.
Q@ We hope your manufacturing cost would be
A Much, I hope.
Now, National Auto made 11,000 in rough num-
©
bers of
p. 51
these parts and sent them all to Zeeland, Michigan, is
that correct?
A That is correct.
Q Has National Auto ever shipped any products
to the State of Oklahoma?
A No.
@ How do you know that?
A That question again?
Q Which one?
A Have we ever shipped?
Q Have you ever shipped any product to the State
of Oklahoma?
A Yes, we have.
F-12
Q Okay. What products and when?
A Weshipped in 1976, I believe, was the last time
we shipped.
Q Whom did you ship to?
A Tinker Air Force.
Q What did you ship”
A It was a nut, nozzle nut.
Q For what engine’?
A TF-30.
Q Was that a large quantity, a large order, small
order?
A No.
p. 52
Q What is the quantity’?
A Ican’t tell you now what the quantity was, but
it was small, a very small quantity.
Q Prior to 1976, had National Auto shipped any
products into the State of Oklahoma?
A Not that I know of.
Q As far as you know, 1976 was the last time
National Auto shipped any products into the State of
Oklahoma, is that correct?
A Yes, that is correct.
Q And you are the person who would know that, if
anybody at National does, is that correct?
A Yes.
Q Has National ever had any employees in the
State of Oklahoma?
A No.
F-13
Q Has National Auto ever had a business address
or business location in the State of Oklahoma?
A No.
@ Has National Auto ever entered into a contract
with an Oklahoma customer’?
A Entered into a contract. I don’t understand
what that implies.
Q For the sale of a product manufactured by
National Auto?
Dp. d3
A Wouldn't that shipment, that would be a pur
chase order from Tinker, that would be one
@ That would be one?
A We would say that is a contract, yes
MR. KATZ: Do you know when the contract
to ship to Tinker was entered into?
MR. GETTE: That wasn’t my question
when the contract was entered into.
BY MR. GETTE:
Q Just is there any contract with an Oklahoma
customer, I don’t care when it was entered into?
A Yes, that would be it, yes.
@ Has National Auto ever had any Oklahoma
}
customers.
A No
@ Is there any other use for the fuel nozzle nut
that we have been talking about other than for use on
a jet engine?
A Other than use on a jet engine?
Q That is right.
F-14
A !don’t know for certain, but I would assume
not.
@ Does Ex-Cell-O manufacture jet engines?
A No.
@ That is what I thought. And Pratt and Whitney
does, is that correct?
A Yes.
p. 55
Q Now, at the time that National Automotive was
manufacturing the fuel nozzles, 748333-B, was it your
understanding that the fuel nozzle nut would remain
in the State of Connecticut during its useful life after
the manufacturing process was complete?
A I would say no, because we shipped them to
Michigan.
Q Okay. At the time you shipped them to Michi-
gan, was it your understanding that the fuel nozzle nut
would remain in the State of Michigan during its
useful life?
A That I don’t know.
Q It would be your expectation that it would not,
is that correct?
A Yes. It could be shipped to Pratt and Whitney,
it could be shipped to any other, it could be shipped to
airlines.
Q From Michigan?
A Idon't know that. From Michigan or in Michi-
gan, you know.
Q Itcould be shipped to virtually anyplace in the
United States from Michigan, is that correct?
A Iwould think so, yes.
F-15
Q The partis not designed to remain in Michigan,
is it?
A If there are, we will say overhaul stations in
the
p. 58
A Yes.
Q@ And, indeed, anyplace in the world that can
service that aircraft, is that correct?
A Yes.
Q And your company had no way to predict
where any particular fuel nozzle nut would end up, is
that correct?
A That is correct.
Q The market for that fuel nozzle nut is a nation-
wide market, it is not a local market?
A Yes.
Q@ And you were intending to service that entire
nationwide market when you manufactured that part?
A As much of it as we could, yes.
Q Now, at the time that you were manufacturing
this fuel nozzle nut, were you aware that American
Airlines had a maintenance facility in Tulsa, Okla-
homa?
A No, I wasn’t.
Q@ Are you aware of that fact now?
A Yes, 1 am.
Q@ And the American Airlines maintenance facil-
ity is one of those facilities we were referring to
earlier where the fuel nut could have ended up?
A Yes.
F-16
Q But we have no way of knowing where any
specific nut could have gone?
G-1
APPENDIX G
IN THE DISTRICT COURT
IN AND FOR TULSA COUNTY
STATE OF OKLAHOMA
Cause No. CT-82-739
AMERICAN AIRLINES, INC.,
A DELAWARE CORPORATION,
Plaintiff.
VS.
UNITED TECHNOLOGIES, INC.,
A DELAWARE CORPORATION,
Ex-CELL-O CORPORATION,
A MICHIGAN CORPORATION,
AND
NATIONAL AUTOMATIC PRODUCTS Co.,
A CORPORATION,
Defendants.
Plaintiff, American Airlines, Inc.’s
First Set Of Interrogatories To Defendant,
National Automatic Products Co.
PLEASE TAKE NOTICE that Plaintiff, AMERI-
CAN AIRLINES, INC., requires Defendant, NA-
TIONAL AUTOMATIC PRODUCTS CoO., by and
through its attornies (sic) of record, L. Ray Pearce,
Esq., The Carlton Firm, 3109 Carlysle, Post Office Box
190427, Dallas, Texas 75219, and Kirk Fredrickson,
Esq., Day, Fredrickson, Merrick & Patton, 2200 Classen
Boulevard, Suite 1110, Oklahoma City, Oklahoma
73106, to answer the following interrogatories within
thirty (30) days from the date of service thereof, pur-
G-2
suant to Okla. Stat. tit. 12 §3210. You are required to
answer each of the interrogatories separately and
fully in writing under oath. The answers to the inter-
rogatories must be signed by the person(s) making
them. Each of the interrogatories shall be considered
continuing and should the answers to any of them be
changed before trial of this action, you are requested
to furnish such different answers in writing and under
oath, or it will be assumed the answers originally
given continue as your answers to these interrogato-
ries.
INTERROGATORY NO. 28: For each of the years
1979, 1980 and 1981, please list the name of each entity
to whom you sold fuel nozzle nuts (Part Number
748333-B).
ANSWER: Ex-Cell-O Corporation.
INTERROGATORY NO. 29: For each such entity
listed in your response to Interrogatory No. 28, please
state:
a. Its address;
b. The number of fuel nozzle nuts (Part Number
748333-B) which were sold to it; and,
c. The date(s) upon which each fuel nozzle nut,
(Part Number 748333-B) was sold to it.
ANSWER: a) 700 North Centennial Street, Zee-
land, Michigan 49464
b) 11,007
c) 4/5/79
4/24/79
4/25/79
5/11/79
5/16/79
5/18/79
6/12/79
6/15/79
6/18/79
6/22/79
7/9/79
8/22/79
8/24/79
9/7/79
9/17/79
9/19/79
9/28/79
10/3/79
10/4/79
G-3
10/15/79
11/2/79
11/15/79
11/19/79
11/26/79
2/4/80
2/7/80
/25/80
3/7/80
4/15/80
H-1
APPENDIX H
SELECTED RULES ON PRACTICE AND PROCEDURE
IN THE [OKLAHOMA] COURT OF APPEALS
RULE 3.9 PETITION FOR REHEARING
A party who is aggrieved by a decision of the Court
of Appeals may file one petition for rehearing com-
bined with brief in its support. On good cause being
shown, a party may be allowed to supplement the brief
on rehearing, but not more than one petition for
rehearing may be presented by any party. The time for
filing a petition for rehearing shall be the same as that
prescribed for filing a petition for a rehearing in the
Supreme Court. See Rule 28, Rules of the Supreme
Court, Title 12, Chapter 15, App. Oklahoma Statutes.
The time shall run from the date the opinion is filed.
An application for an extension of time not to exceed
twenty (20) days to file a petition for rehearing and
brief in support thereof may, if filed within the time
limits provided by said Rule 28, Rules of the Supreme
Court, be allowed by the Presiding Judge of the divi-
sion of the Court of Appeals involved, if in the judge’s
opinion good cause is shown in the application for an
extension.
Amended by order of June 22, 1979; Oct. 22, 1984.
RULE 3.13 REVIEW BY SUPREME COURT
ON CERTIORARI
A. A review of an opinion of the Court of Appeals
in the Supreme Court on writ of certiorari as provided
in 20 O.S. 1971, § 30.1 is a matter of sound judicial
discretion and will be granted only when there are
special and important reasons and a majority of the
justices direct that certiorari be granted. The follow-
ing, while neither controlling nor fully measuring the
Supreme Court’s discretion, indicate the character of
reasons which will be considered:
Ce |
H-2
(1) Where the Court of Appeals has decided a
question of substance not heretofore determined by
this court;
(2) Where the Court of Appeals has decided a
question of substance in a way probably not in accord
with applicable decisions of this court or the Supreme
Court of the United States;
(3) Where a division of the Court of Appeals has
rendered a decision in conflict with the decision of
another division of that court;
(4) Where the Court of Appeals has so far departed
from the accepted and usual course of judicial pro-
ceedings or so far sanctioned such procedure by atrial
court as to call for the exercise of this court’s power of
supervision.
B. A party who did not petition for rehearing in the
Court of Appeals may not petition for certiorari.
Amended by order eff. Feb. 28, 1972; amended by order of Sept. 3,
1976, eff. Oct. 30, 1976.
RULE 3.19 MANDATE TO TRIAL COURT
If no rehearing be sought in a case assigned to the
Court of Appeals within the time prescribed by Rule
3.9 or if a petition for rehearing is denied and no
certiorari is sought to the Supreme Court as provided
in these rules, or if certiorari is denied by the Su-
preme Court, the Chief Justice will forthwith direct
the clerk of the Supreme Court to issue mandate.
Amended by order of Sept. 3, 1976, eff. Oct. 30, 1976.
SELECTED RULES OF THE
SUPREME COURT OF OKLAHOMA
RULE 28. REHEARINGS
(1) Applications for a rehearing, and a brief in
support thereof, in any cause, unless otherwise or-
dered by the Court, shall be made by petition to the
is
me i |
H-3
Court, signed by counsel, and filed with the Clerk
within twenty (20) days from the date on which the
opinion in the cause is filed. No oral argument on
petition for rehearing shall be allowed except upon
| order of the Court. No petition for rehearing shall be
filed or considered without proof of service. An appli-
cation for an extension of time not to exceed twenty
(20) days to file a petition for rehearing and brief in
support thereof may, if filed within the twenty (20) day
; time limit above specified, be allowed by the Chief
Justice if in his opinion good cause is shown in the
application for an extension.
(2) Ten (10) clearly legible copies of petitions for
rehearing shall be filed.
Amended by order of Oct. 2, 1967, eff. Dec. 4, 1967; amended by
order of June 22, 1979; Oct. 22, 1984.
RULE 29. APPLICATION FOR SECOND PETITION
FOR REHEARING
No motion or application for rehearing or review
will be allowed after the denial of a petition for
rehearing. The Clerk shall not file any such motion or
application after the denial of a petition for rehearing.
Amended by order of Oct. 2, 1967, eff. Dec. 4, 1967; Sept. 30, 1976,
eff. Oct. 30, 1976.
RULE 33. MANDATE AND ISSUANCE
(1) After the expiration of twenty (20) days from the
filing of an opinion proper mandate to the trial court
may issue; provided, that when a petition for rehear-
ing is filed within the time prescribed, or by leave of
Court, no mandate shall issue until such petition for
rehearing shall have been determined. If the petition
for rehearing is denied the mandate may issue.
(2) All mandates shall be issued by the Clerk on
order of the Chief Justice.
Amended by order of Oct. 2, 1967, eff. Dec. 4, 1967; amended by
order of April 7, 1980.
CERTIFICATE OF SERVICE
I hereby certify that on this 21st day of July,
1989, three true and correct copies of the above
and foregoing were mailed, postage prepaid, to:
Joe B. Abbey, Esq., 1717 Main Street, Suite 2220,
Dallas, Texas 75201, counsel for the Petitioner;
and Robert J. Henry, Attorney General for the
State of Oklahoma, State Capitol Building, Okla-
homa City, Oklahoma 73105. I further certify that
all parties required to be served have been
served.
/s/ Barbara L. Swimley
Stephen P. Friot
Barbara L. Swimley
of
Spradling, Alpern, Friot & Gum
101 Park Avenue, Suite 700
Oklahoma City, Oklahoma 73102
Telephone: 405/272-0211
Counsel for Respondents
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.