# Petition — R. H. Macy & Co. v. United States District Court for the Eastern District of Michigan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1033

## Text

*~ Supreme Court, U.S,
LED

OCT 20 1977
p: |

MICHAEL RODAK, JR., CLERK

IN THE

Suprene Court of the United

October Term, 1977

|

No @7-581

R. H. Macy & Co., Inc. and BAMBERGER’s,
a division of R. H. Macy & Co., Inc.,
Petitioner,

Vv.

Unitep States District Court ror THE Eastern District
oF MicuicgAN and MicroELECTRONIC SysSTEMS CORPORATION
or America, as Real Party in Interest,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Murray GARTNER
Attorney for Petitioner
1185 Avenue of the Americas
New York, New York 10036
(212) 730-7373
Dated: New York, New York
October 20, 1977

Of Counsel:

Epwarp A, Britu
Bensamin I. CoHEN
Pouetti F'REmIN
PrasHKER F'eLpMAN & GARTNER
1185 Avenue of the Americas
New York, New York 10036
and
Joun O’Meara
Dickinson Waricut McKeran
Cupiie & Moon
800 First National Building
Detroit, Michigan 48226

TABLE OF CONTENTS

PAGE
REA ep ONO ana Rte ROR PON TN BRO NOD PO 2
ERED Reet RRL OC RN LL 2
ATT a eT TEEN ROT RET 2
Statutory Provisions Involved... a ) 2
csc cuensncaasyscimcssousndnshccenensens 4
Reasons for Granting the Writ _. 3 8

I. In these diversity cases, the District Court,
and the Court of Appeals by its denial of
mandamus, clearly departed from the legal
standards articulated by this Court for the
constitutional exercise by States of im per-
sonam jurisdiction as applied by virtually all
GU FS GID sss cccicsineesecisssacesecectess cae 8

II. A writ of mandamus is the appropriate remedy
for correcting an overreaching by the District
Court of its jurisdiction which presages the

obliteration of State lines .............. oPeas 12
Conclusion ........ EE ee aM EMCEE See Tay PI 14
Appendices

A—Opinion of the District Court... .......... la

B—Opinion and Order of the Court of Appeals . 8a

II

CITATIONS

American Airlines, Inc. v. Forman, 204 F.2d 230 (3d
Cir. 1953)

Anderson v. Shiflett, 435 F.2d 1036 (10th Cir. 1971)

Anderson, Clayton & Co. v. Atlas Concrete Pipe, Inc.,
41 Mich. App. 58, 199 N.W.2d 531 (Ct. App. 1972)

Architectural Building Components Corp. v. Comfort,
528 P.2d 307 (Oklahoma 1974)

Artoe v. Mann, 36 Ill. App. 3d 204, 343 N.E.2d 647 (Ct.
App. 1976)

‘*Automatic’’ Sprinkler Corporation of America v.
Seneca Foods Corp., 361 Mass. 441, 280 N.E.2d
423 (1972) |

Branstrom & Associates, Inc. v. Community Memorial
Hospital, 296 Minn. 366, 209 N.W.2d 389 (1973)

Chassis-Trak, Inc. v. Federated Purchaser, Inc., 179
F.Supp. 780 (D. New Jersey 1960)

Colony Press, Inc. v. Fleeman, 17 Ill. App. 3d 14, 308
N.E.2d 78 (Ct. App. 1974)

Darby v. Superior Supply Co., 224 Tenn. 540, 458 S.W.
2d 423 (1970)

E. R. Callender Printing Co. v. District Court In and
For the Second Judicial District, 182 Colo. 25, 510
P.2d 889 (1973) (en banc)

Garrett v. R. H. Maey & Co., Inc., 360 F.Supp. 872
(E.D. Tennessee 1972) waa ae

Geneva Industries, Ine. v. Copeland Construction
Corp., 312 F.Supp. 186 (N.D. Illinois 1970)

Guardian Packaging Corp. v. Kapak Industries, Inc.,
316 F.Supp. 952 (D. Minnesota 1970)

PAGE

11

10, 11

11

11

10

10

11

10

10

II!

PAGE
Hanson v. Denckla, 357 U.S. 235 (1958) 20... 8
Holub Industries, Inc. v. Wyche, 290 F.2d 852 =
Cir. 1961) ..... De ac DRERE T
In-Flight Devices Corp. v. Van Dusen Air, Inc., 466
IN I TI oisciescacpacecercstsnncxsedecsteupeenssinrs 7, 8
Interdyne Co. v. SYS Computer Corp., 31 Cal. App.
3d 508, 107 Cal. Rptr. 499 (Ct. App. 1973) ............ 11
International Shoe Co. v. Washington, 326 U.S. 310
LSE SPRSERRECON SS ALPE Ce. ca SA RCE Sane VR . 8,13
Kerr v. United States District Court, 426 U.S. 394
RIESE SPn eT HR De Disease nen NS 5,13
Klein v. E.W. Reynolds Co., Inc., 355 F. — 886
RSE ER trap Sensi nau havea acinomae 9
M. Katz & Son Billiard Products, Inc. v. G. Correale
& Sons, Inc., 20 N.Y.2d 903, 285 N.Y.S.2d 871
ee 11
McGee v. International Life Insurance Company, 355
U.S. 220 (1957) pee 8
McQuay, Inc. v. Samuel Schlosberg, Inc., 321 F. Supp.
902 (D. Minnesota 1971) .._................. 9
Microelectronic Systems Corp. v. Bamberger’ s, 434
F.Supp. 168 (E.D. Michigan 1977)... 2
Misco-United Supply, Inc. v. Richards of Rockford,
Ine., 215 Kan. 849, 528 P.2d 1248 (1974) | 11
Neptune Microfloe, Inc. v. First Florida Utilities, Inc.,
261 Or. 494, 495 P.2d 263 (1972) < 11
NRM Corp. v. Pacifie Plastic Pipe Co., 36 Ohio ‘App.
2d 179, 304 N.E.2d 248 (Ct. App. 1973) , Siesta.

Oklahoma Publishing Co. v. National Sportsmen’s
Club, Inc., 323 F.Supp. 929 (W.D. Oklahoma 1971) 9

Iv

O. N. Jonas Co. v. B & P Sales Corp., 232 Ga. 256, 206
S.E.2d 437 (1974) satiia saunas
Oswalt Industries, Inc. v. Gilmore, 297 F.Supp. 307
8 ee emer he
Prentice Lumber Co. v. tino 156 Mont. 68, 474 P.2d
141 (1970) .sevoressevelejmebaianiaie
Rath Packing Co. v. Intercontinental Meai Traders,
Inc., 181 N.W.2d 184 (Iowa 1970) 000...
Shaffer v. Heitner, 97 S.Ct. 2569 (1977) ....................
Simpson Timber Co. v. Great Salt Lake Minerals and
Chemicals stil .» 296 F. —— 243 (D. Oregon
1969)

Transwestern General Agency v. a 526 P.2d
1186 (Utah 1974) ; eases

U-Anchor Advertising, Inc. v. Burt, 544 S.W.2d 500
(Texas Civil App. 1976), aff’d, —-- S.W.2d
, No. B-6516, Slip op. (Texas July 13, 1977)
United Adv ertising Agency, Inc. v. Robb, 391 F. SUPP.
626 (M.D. North Carolina 1975) .

Whittaker Corp. v. United Aircraft Corp., 482 F.2d
tet: 2) SP : eee

William R. Andrews Associates v. Sodibar Systems
of D.C., Ine., 28 N.C. App. 663, 222 S.E.2d 922 ten
App. 1976) ve aesnianateia

PAGE

11

11

11

IN THE

Supreme Court of the United States

October Term, 1977

SS ee

R. H. Macy & Co., Inc. and BAMBERGER’s,

a division of R. H. Macy & Co., Inc.,
Petitioner,

Vv.

Unitep States District Court ror THE Eastern District
or MicHicAN and MicroELEcTRONIC SysTEMS CORPORATION

or America, as Real Party in Interest,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Petitioner, R. H. Macy & Co., Inc.,' respectfully prays
that a writ of certiorari issue to review the order and deci-
sion of the United States Court of Appeals for the Sixth
Circuit denying petitioner’s application in both cases below
for a writ of mandamus to confine the m personam juris-
diction of the District Court within constitutional limits.

1. One of the actions below names Bambergers, an unincorpo-
rated division of R. H. Macy & Co., Inc., as defendant ; effectively
R. H. Macy & Co., Inc. is yo in both actions and the single
petitioner here.

Opinions Below

The opinion of the United States District Court for the
Eastern District of Michigan, 434 F. Supp. 168, appears in
Appendix A. The opinion of the Court of Appeals, as yet
unreported, appears in Appendix B.

Jurisdiction

The order of the Court of Appeals, denying petitioner’s
petition for a writ of mandamus to the District Court, was
entered on July 22, 1977; this Court’s jurisdiction is invoked
under 28 U.S.C. §§1254(1) and 2101.

Question Presented

Whether, in diversity actions, the United States District
Court for the Eastern District of Michigan so departed from
the accepted and usual standards of constitutional m per-
sonam jurisdiction by asserting jurisdiction over defendant,
who neither is a citizen of nor does business in Michigan
and had virtually no contacts with that State, that a writ
of mandamus should have been issued by the Court of
Appeals?

Statutory Provisions Involved

United States Code, Title 28:
§1651(a). Writs

The Supreme Court and all courts established
by Act of Congress may issue all writs necessary or

3

appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.

Michigan Comp. Laws Ann.:

§600.715. Same; limited personal jurisdiction

Sec. 715. The existence of any of the following re-
lationships between a corporation or its agent and the
state shall constitute a sufficient basis of jurisdiction to
enable the courts of record of this state to exercise lim-
ited personal jurisdiction over such corporation and to
enable such courts to render personal judgments
against such corporation arising out of the act or acts
which create any of the following relationships:

(1) The transaction of any business within the
state.

(2) The doing or causing any act to be done, or
consequences to occur, in the state resulting in an
action for tort.

(3) The ownership, use, or possession of any real
or tangible personal property situated within the
state.

(4) Contracting to insure any person, property,
or risk located within this state at the time of con-
tracting.

(5) Entering into a contract for services to be
performed or for materials to be furnished in the
state by the defendant.

Statement of the Case

These two actions involve a dispute between Micro-
electronic Systems Corporation of America (‘‘Micro’’),
a Michigan corporation, and R. H. Macy & Co., Ine.
(‘‘Macy’s’’), a New York corporation and Bamberger’s,
an unincorporated division of Macy’s. Invoking diversity
jurisdiction under 28 U.S.C. §1332(a), Micro commenced
separate actions in February 1976, in the United States
District Court for the Eastern District of Michigan, seek-
ing to recover a combined total of $67,823.68, plus interest,
for the purchase price of electronic watches allegedly sold
by Micro to Macy’s and Bamberger’s.

Macy’s and Bamberger’s jointly moved to dismiss the
complaints on the ground that—under Michigan’s ‘‘long-
arm’’ jurisdiction statute, Michigan Comp. Laws Ann.
§600.715, and the due process clause of the Fourteenth
Amendment—there was no in personam jurisdiction over
Macy’s.

On January 31, 1977, the District Court (Feikens, D.J.)
denied defendant’s motion in both cases. That court also
denied defendant’s motion to certify the question for inter-
locutory appeal, pursuant to 28 U.S.C. §1292(b).

On May 27, 1977, Macy’s petitioned for a writ of man-
damus to the District Court ordering dismissal of these
actions, on the ground of the District Court’s unconstitu-
tional assertion of jurisdiction. On July 22, 1977, the
Court of Appeals denied the petition in a one-sentence
opinion, citing only a decision of this Court that mandamus
would not issue to reverse a district court order for par-

5

ticular discovery. Kerr v. United States District Court,
426 U.S. 394 (1976) (Appendix B, p. 8a).

The underlying dispute derives from Micro’s alleged
sale of electronic watches to Macy’s and Bamberger’s dur-
ing the period July through September, 1975. Based on
the simple and undisputed facts presented to the court
in support of defendant’s motions to dismiss for lack of
jurisdiction, the District Court found, first, that neither
Macy’s nor Bamberger’s ‘‘carries on a continuous and
systematic part of its general business within Michigan,’’
and that the court therefore had no general in personam
jurisdiction over the defendants (Appendix A, p. 3a).
Next, considering the question of limited jurisdiction over
the defendant under the Michigan ‘‘long-arm’’ statute,
M.C.L.A. §600.715, the court succintly summarized the
events relevant to the sales transactions, none of which
occurred in Michigan, as follows:

‘‘Macy’s was first made aware of Micro’s watches
when Robert Waldman of Marketing East Industries
Corporation, a New York corporation acting as an
independent manufacturers representative, visited
Macy’s buyer, James Scoroposki, on behalf of Micro
and proposed the sale. After further discussion be-
tween Waldman and Scoroposki, Jerry Allen, Micro’s
national sales manager, came from Michigan to New
York and met with Waldman and Scoroposki to dis-
cuss details of the sale. Thereafter, Scoroposki gave
Waldman purchase orders for standard Microelec-
tronic watches which Waldman then forwarded to
Micro. Micro never formally confirmed the orders,
but it did ship Macy’s the watches.’

1. At least one contract for sale to Bamburger’s was con-

firmed by Jerry Allen in a letter dated July 11, 1975. Exhibit
A to Joseph Stanton affidavit. [footnote by court].

6

Macy’s only contact with Michigan was through
the ordering of goods by mail from a corporation in
Michigan * * *’” (Appendix A, pp. 3a-4a).

The uncontested facts before the District Court, nec-
essarily accepted by that court, additionally showed that no
merchandise was delivered to or inspected by Macy’s in
Michigan (See {]3, 5, of affidavit of Norman Merinstein,
Exhibit F to Petition for Writ of Mandamus; {{/3, 5, of af-
fidavit of James Scoroposki, Exhibit G to Petition for Writ
of Mandamus); title did not pass until inspection of and
acceptance by Macy’s (in New York or New Jersey) (See
Condition 8 of Exhibit H to affidavit of Norman Merinstein,
Exhibit F ‘» Petition for Writ of Mandamus) ; and no rep-
resentative of Macy’s entered Michigan or conducted any
negotiations with Micro’s personnel in Michigan relating
to the purchase of the watches. (See 3, 5, of affidavit of
Norman Merinstein, Exhibit F to Petition for Writ of
Mandamus; {{3, 5 of affidavit of James Scoroposki, Ex-

2. While the District Court did not rely on the finding that
Macy’s ordered goods by mail from the Michigan corporation as a
basis for its decision, that finding is nevertheless clearly erroneous.
The uncontested affidavits before the District Court show that the
watches were ordered by personal delivery of purchase orders to the
seller's own representative in New York and New Jersey, which were
then forwarded by that representative to Micro. (See 93-5 of affi-
davits of Robert Waldman, Exhibits F and G to Petition for Writ
of Mandamus; {8 of affidavit of Joseph Stanton, Micro’s Controller,
Exhibit H to Petition for Writ of Mandamus.) (References are to
the record in the Court of Appeals which petitioner has requested be
certified and transmitted to this Court.) The letter written by
Micro’s Vice President Jerry Allen on July 11, 1975, which is the
basis for the court’s statement that the goods were ordered by mail,
is plainly not a confirmation of a contract of sale, as the court states,
since it was written well before any of the purchase orders by Macy’s
or Bamberger’s. The undisputed evidence before the District Court
establishes that neither Macy’s nor Bamberger’s placed any orders
by mail, nor even wrote to Micro concerning the purchase of the
watches.

7

hibit G to Petition for Writ of Mandamus). In sum, it
was undisputed that every significant action related to the
purchase of the Micro watches occurred in either New York
or New Jersey, where both the plaintiff’s Vice-President
and its local sales representative sought out the defendants,
solicited their business, and finally consummated the sales
transactions which are the basis for these actions.

Petitioner agrees with the District Court that ‘‘ Mich-
igan, like several other jurisdictions, has interpreted its
long-arm statute (M.C.L.A. §600.715) as being the broadest
grant of jurisdiction consistent with the constitutional re-
quirements of due process.’’ (Appendix A, p. 4a). In the
face of the District Court’s acknowledgement that Macy’s
and Bamberger’s were ‘‘merely * * * passive out-of-state
buyer[s] of an in-state product’’ [Appendix A, p. 5a],®
however, the court’s decision that they were subject to the
court’s jurisdiction exceeds the limits of constitutional
power. The District Court, in effect, obliterated State lines
and the constitutional limits of State power in the final

paragraph of its opinion, by saying:

‘*Finally, in modern business practice, companies
buy and sell products in all parts of our country. Dis-
tance is no longer a factor in these relationships. In
a commercial sense business activity realistically is not
concerned with state boundaries. What seems to domi-
nate these relationships is the obtaining a good product
at the lowest cost that can be sold at a profit. Viewed
in this way it is reasonable to exercise jurisdiction in a
case such as this.’’ (App. A, p. 7a)

3. This distinction between “passive” and “‘active’’ buyers as the
touchstone for declining in personam jurisdiction as to the former and
for asserting it as to the latter, has been stated by the Court of Ap-
peals for the Sixth Circuit, Jn-Flight Devices Corp. v. Van Dusen
Air, Inc., 466 F.2d 220, 233 (6th Cir. 1972), as well as by a signifi-
cant number of other courts in other circuits. See pp. 9-11, below.

Reasons for Granting the Writ

I. In these diversity cases, the District Court, and the
Court of Appeals by its denial of mandamus, clearly
departed from the legal standards articulated by this
Court for the constitutional exercise by States of in
personam jurisdiction as applied by virtually all other
federal courts.

International Shoe Co. v. Washington, 326 U.S. 310
(1945), McGee v. International Life Insurance Co., 355 U.S.
220 (1957), and Hanson v. Denckla, 357 U.S. 235 (1958) are
the leading decisions by this Court on the constraints which
the due process clause of the Fourteenth Amendment im-
poses on the assertion by a State of in personam jurisdic-
tion over foreigners. Shaffer v. Heitner, 97 S.Ct. 2569,
2580 (1977), in extending the analysis of those cases to
quasi m rem jurisdiction, reaffirmed that ‘‘due process re-
quires only that in order to subject a defendant to a judg-
ment in personam, if he be not present within the territory
of the forum, he have certain minimum contacts with it such
that the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’ ”’

The Court of Appeals for the Sixth Circuit, like the
First Circuit and other courts in other circuits, in applying
the principles set forth in /nternational Shoe and its prog-
eny, has distinguished between an out-of-State ‘‘ passive
buyer’’ and an ‘‘active buyer.’’ In-Flight Devices Corp.
v. Van Dusen Air, Inc., 466 F.2d 220, 233 (6th Cir. 1972).
A ‘‘passive buyer’’ is one ‘‘simply placing an order, accept-
ing the seller’s price and terms as stated in his product
advertising and agreeing only to pay a sum upon receipt
of the goods or service.’’ An ‘‘active buyer’’ is one who

9

‘‘vigorously negotiates, perhaps dictates, contract terms,
inspects production facilities and otherwise departs from
the passive buyer role.’’ Jd. at 233.

Since the District Court accurately characterized Macy’s
(and Bamberger’s) as someone ‘‘who merely acted as a
passive out-of-state buyer of an in-state product’’ (Ap-
pendix A, p. 5a), the Court of Appeals should have granted
the writ of mandamus.‘ In a similar factual situation, the
Court of Appeals for the First Cireuit held that, under the
Massachusetts ‘‘long-arm’’ statute, the United States Dis-
trict Court had no jurisdiction over two foreign corpora-
tions which had placed orders with a Massachusetts corpo-
ration, without any additional significant contacts with the
forum state. Whittaker Corp. v. United Aircraft Corp.,
482 F.2d 1079, 1084-1085 (1st Cir. 1973). Accord: Ander-
son v. Shiflett, 435 F.2d 1036 (10th Cir. 1971).

The same constitutional limitation has been affirmed by
virtually all the other United States District Courts that
have considered the question of in personam jurisdiction
under a State long-arm statute over a non-resident buyer
whose contacts with the forum were as passive and insub-
stantial as those involved in this case. United Advertising
Agency, Inc. v. Robb, 391 F. Supp. 626, 628-631 (M.D. North
Carolina 1975); Klein v. E. W. Reynolds Co., Inc., 355 F.
Supp. 886 (S.D.N.Y. 1973); Garrett v. R. H. Macy & Co.,
Inc., 360 F. Supp. 872, 877 (E.D. Tennessee 1972); Okla-
homa Publishing Co. v. National Sportsmen’s Club, Inc.,
323 F. Supp. 929, 930-931 (W.D. Oklahoma 1971); McQuay,
Inc. v. Samuel Schlosberg, Inc., 321 F. Supp. 902, 907 (D.
Minnesota 1971) ; Geneva Industries, Inc. v. Copeland Con-

4. That court denied the writ not because of any differing view
as to the constitutional limits of in personam jurisdiction, but because
of its erroneous view that mandamus was not available. See Point

II, below.

10

struction Corp., 312 F. Supp. 186, 188 (N.D. Illinois 1970) ;
Guardian Packaging Corp. v. Kapak Industries, Inc., 316 F.
Supp. 952, 955 (D. Minnesota 1970) ; Oswalt Industries Inc.
v. Gilmore, 297 F. Supp. 307, 313 (D. Kansas 1969) ; Chassis-
Trak, Inc. v. Federated Purchaser, Inc., 179 F. Supp. 780,
791 (D. New Jersey 1960). But cf. Simpson Timber Co. v.
Great Salt Lake Minerals and Chemicals Corp., 296 F.
Supp. 243 (D. Oregon 1969).

Not only is the District Court’s decision here, left stand-
ing by the Court of Appeals order, contrary to the above-
cited federal decisions which almost unanimously hold a
‘*passive’’ buyer immune from long-arm jurisdiction, it is
contrary, as well, to the nearly unanimous decisions of the
State courts which have considered this question. Indeed,
the District Court recognized that its decision was contrary
to the decisions of four State courts which held there was
no in personam jurisdiction over an out-of-State buyer in
similar circumstances (Appendix A, p. 5a, n.2).° E.R. Cal-
lender Printing Co. v. The District Court In and For the

5. As the District Court said (Appendix A, p. 6a) “|d]etermin-
ing the outer limits of in personam jurisdiction permitted by the due
process clause is a federal question” ; nevertheless, it found “persua-
sive” the decision of the Michigan Court of Appeals in Anderson,
Clayton & Co. v. Atlas Concrete Pipe, Inc., 41 Mich. App. 58, 199
N.W.2d 531 (Ct. App. 1972), that jurisdiction existed under the
Michigan long-arm statute. However, neither Anderson, Clayton &
Co. nor the other State court decision cited by the District Court,
Colony Press, Inc. v. Fleeman, 17 Ill. App. 3d 14, 308 N.E. 2d 78
(Ct. App. 1974), involved “passive buyers.” They involved buyers
who, unlike Macy’s, (1) initiated the transactions giving rise to the
lawsuit by first communicating with the forum-based seller in the
forum State; (2) placed their orders directly with the seller by phone
and mail; and (3) did not order standard catalog items from set
price lists but required the seller in each instance to deliver ial
orders designed to meet their particular specifications. Colony —
Inc. was, in fact, distinguished on this basis in a later case which held
there was no jurisdiction when an Illinois seller initiated the nego-
tiations in California. Artoe v. Mann, 36 Ill. App. 3d 204, %43
N.E.2d 647, 649 (Ct. App. 1976).

=. oot

11

Second Judicial District, 182 Colo. 25, 510 P.2d 889 (1973)
(en banc); O. N. Jonas Co. v. B & P Sales Corp., 232 Ga.
256, 206 S.E.2d 437 (1974); NRM Corp. v. Pacific Plastic
Pipe Co., 36 Ohio App.2d 179, 304 N.E.2d 248 (Ct. App.
1973) ; Architectural Building Components Corp. v. Com-
fort, 528 P.2d 307 (Okla. 1974). Our research reveals that
eleven additional State courts have also held that there is
no im personam jurisdiction over a buyer in the circum-
stances of Macy’s and Bamberger’s. Interdyne Co. v. SYS
Computer Corp., 31 Cal. App. 3d 508, 107 Cal. Rptr. 499
(Ct. App. 1973); Artoe v. Mamm, 36 Ill. App. 3d 204, 343
N.E.2d 647 (Ct. App. 1976) ; Rath Packing Co. v. Intercon-
tinental Meat Traders, Inc., 181 N.W.2d 184 (Iowa 1970) ;
‘** Automatic’’ Sprinkler Corporation of America v. Seneca
Foods Corp., 361 Mass. 441, 280 N.E.2d 423 (1972); Bran-
strom & Associates, Inc. v. Community Memorial Hospital,
296 Minn. 366, 209 N.W.2d 389 (1973); M. Katz & Sons
Billiard Products, Inc. v. G. Correale & Sons, Inc., 20 N.Y.
2d 903, 285 N.Y.S.2d 871 (1967); William R. Andrews Asso-
ctates v. Sodibar Systems of D.C., Inc., 28 N.C. App. 663,
222 S.E.2d 922 (Ct. App. 1976); Neptune Microfloc, Inc. v.
First Florida Utilities, Inc., 261 Or. 494, 495 P.2d 263
(1972); Darby v. Superior Supply Co., 224 Tenn. 540, 458
S.W.2d 423 (1970); U-Anchor Advertising, Inc. v. Burt,
544 S.W.2d 500 (Texas Civil App. 1976), aff'd, ——
S.W.2d ——, No. B-6516 slip op. (Texas July 13, 1977);
Transwestern General Agency v. Morgan, 526 P.2d 1186
(Utah 1974) ; cf. Misco-United Suppty, Inc. v. Richards of
Rockford, Inc., 215 Kan. 849, 528 P.2d 1248 (1974) ; contra:
Prentice Lumber Co. v. Spahn, 156 Mont. 68, 474 P.2d 141
(1970).

The decision of the District Court that there is in
personam jurisdiction over the defendant in both cases

12

crosses any reasonable line for the assertion of long-arm
jurisdiction, as established by the numerous federal and
State court decisions cited above. Indeed, it serves to
obliterate any line at all by its focus on ‘‘modern business
practice’’ which, in its view, is such that ‘‘[iJn a com-
mercial sense, business activity realistically is not con-
cerned with state boundaries.’’ (Appendix A, p. 7a). The
difficulty with that formulation is that, in a constitutional
sense, the courts must be concerned with state boundaries ;
by failing to observe such boundaries, the District Court
plainly exceeded its jurisdiction and announced a mis-
chievous doctrine. It should be suppressed by this Court
before it spawns unlimited and unwarranted extensions of
the reach of State judicial process, in violation of this
Court’s established doctrine that exercise of im personam
jurisdiction must be based on such contacts with the State
as lead to the judgment that it is fundamentally fair to
summon the defendant to that forum.

Il. A writ of mandamus is the appropriate remedy for
correcting an overreaching by the District Court of its
jurisdiction which presages the obliteration of State
lines.

The Court of Appeals denied the petition for a writ
of mandamus, pursuant to 28 U.S.C. §1651(a), on the
ground ‘‘that petitioners have failed to show the existence
of the exceptional circumstances which will justify the
granting of this extraordinary remedy.’’ It correctly
observed that a writ of mandamus is an ‘‘extraordinary
remedy’’ and requires ‘‘the existence of * * * exceptional
circumstances,’’ but failed to see that these cases meet
those tests. In the very case which the Court of Appeals

13

cited to justify its denial of the writ, Kerr v. United States
District Court, 426 U.S. 394, 402 (1976), this Court re-
cently said:

‘*As we have observed, the writ ‘has traditionally
been used in the federal courts only ‘‘to confine an
inferior court to a lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority
when it is its duty to do so.’’’ Will v. United States,
[389 U.S. 90 (1967)] supra, at 95, quoting Roche v.
Evaporated Milk Assn. 319 U.S. 21, 26 (1943).”’

Conformably to this Court’s statement of the tradi-
tional use of the writ, these are cases in which the writ
should have issued. The facts, as found by the District
Court, are uncomplicated and uncontradicted. Moreover,
on the jurisdictional question, nothing will be added by a
full trial. In view of the admitted and uncontradicted
course of events, no proof of greater contact with the
State of Michigan can be adduced, nor is any additional
proof necessary under the District Court’s decision. Un-
der virtually every decision under the due process clause,
however, the District Court, on these facts, far exceeded
the constitutional limits to its derivative State jurisdiction.
When such jurisdictional overreaching is so plain, it must
be corrected by the Court of Appeals on petition for
mandamus, or by this Court, else there is no established
use for the writ in confining the District Court ‘‘to a law-
ful exercise of its prescribed jurisdiction.’”

6. This Court has not since /nternational Shoe instructed the
lower courts on the use of the writ of mandamus to confine those
courts to their prescribed jurisdiction in diversity cases. Cf. Ameri-
can Airlines v. Forman, 204 F.2d 230, 232 (3d Cir. 1953); Holub
Industries, Inc. v. Wyche, 290 F.2d 852, 855 (4th Cir. 1961).

14

Conclusion

Because the District Court unconstitutionally ex-
tended the reach of State jurisdiction in these diversity
cases, and the Court of Appeals failed to confine the
court to its legal jurisdiction, this Court should now
issue a writ of certiorari to review the order of the

Court of Appeals for the Sixth Circuit.
Respectfully submitted,

Murray GarTNER
Attorney for Petitioner
1185 Avenue of the Americas
New York, New York 10036
(212) 730-7373
Dated: New York, New York
October 20, 1977

Of Counsel:

Epwarp A. Britu
Bensamin 1. Conen
Po.etti F'REIDIN
PraSHKER FELDMAN & GARTNER
1185 Avenue of the Americas
New York, New York 10036
and
Joun O’MEara
Dickinson Wricut McKean
Cupiip & Moon
800 First National Building
Detroit, Michigan 48226

APPENDICES

APPENDIX A

Opinion of the District Court

UNITED STATES DISTRICT COURT
Eastern District or MICHIGAN

SovuTHERN Drvision

a

Crvit Action No. 6-70293

MIcroELEcTRONIC SysteMs CoRPORATION OF AMERICA,
a Michigan corporation,
Plaintiff,

v.

BaMBERGER’s, a Division of R.H. Macy & Co., Inc.,
Defendant.

Civit Action No. 6-70294

MIcROELECTRONIC SystEMS CoRPORATION OF AMERICA,
a Michigan corporation,
Plaintiff,
v.

R.H. Macy & Co., Inc., a New York corporation,
Defendant.

MEMORANDUM OPINION

Plaintiff, Microelectronic Systems Corporation of Amer-
ica [Micro], brings these diversity actions against defend-

2a
Appendix A—Opinion of the District Court

ants, Bamberger’s, a Division of R. H. Macy &Co., Inc. and
R. H. Macy & Co., Ine. [Macy’s]. Plaintiff alleges that
each defendant ordered and received shipments of certain
electronic watches manufactured by plaintiff and that both
defendants failed to remit the sums owing to plaintiff for
their purchases. In each case suit is for the unpaid pur-
chase price and is based on the alternative theories of ac-
count stated, breach of contract and tort.

Defendant, in each case, moves for dismissal on the
ground that this court lacks personal jurisdiction over it.
Since the substance of the arguments presented in both
cases is the same, the court considers the two motions to-
gether. For convenience the court will write only of the
facts as they pertain to defendant Macy’s. The facts in
the case against Bamberger’s are substantially similar, and
all the reasoning applies by analogy.

As a United States District Court sitting in Michigan
this court looks to Michigan law to determine whether there
is personal jurisdiction over the defendant. Erie R.R. v.
Tompkins, 304 U.S. 64 (1938). Micro claims first that this
court has general personal jurisdiction over Macy’s under
M.C.L.A. §600.711 for the reason that Macy’s ‘‘carries on
a continuous and systematic part of its general business
within Michigan.’’ M.C.L.A. §600.711(3). Macy’s replies,
by affidavit of its Vice President-Legal, that it ‘‘is not
qualified to do business in the State of Michigan; maintains
no offices, has no telephone listing, and no employees in
the State of Michigan; and does not regularly ship goods
into or advertise goods for sale in the State of Michigan.’’
See Ely Kushel Affidavit. Micro does not refute these

es cre st

3a
Appendix A—Opinion of the District Court

statements but instead asks for opportunity to conduct dis-
covery in order to demonstrate that Macy’s has enough con-
tacts with Michigan to give this court general personal
jurisdiction over it. Since the burden is on the plaintiff to
show the court’s in personam jurisdiction over defendant,
Weller v. Cromwell Oil Co., 504 F.2d 927 (6th Cir. 1974),
Micro’s failure to controvert the defense affidavit compels
a finding of no general in personam jurisdiction over
Macy’s.

Micro claims also that this court has jurisdiction over
Macy’s under M.C.L.A. §600.715 which gives the court lim-
ited personal jurisdiction over a foreign corporation if
it transacts any business within Michigan; does or causes
any act to be done or consequences to occur in Michigan
resulting in an action for tort; owns, uses, or possesses any
real or tangible personal property situated in Michigan;
contracts to perform services or furnish materials in
Michigan. Since limited personal jurisdiction extends to
all causes of action arising out of the facts which give
jurisdiction, the question becomes whether, vel non, Macy’s,
a New York Corporation, had sufficient contact with
Michigan, as defined under M.C.L.A. §600.715, during the
course of its watch purchases from the Michigan corpora-
tion, Micro.

Macy’s was first made aware of Micro’s watches when
Robert Waldman of Marketing East Industries Corpora-
tion, a New York corporation acting as an independent
manufacturers representative, visited Macy’s buyer, James
Scoroposki, on behalf of Micro and proposed the sale. After
further discussion between Waldman and Scoroposki, Jerry

4a
Appendix A—Opinion of the District Court

Allen, Micro’s national sales manager, came from Michigan
to New York and met with Waldman and Scoroposki to
discuss details of the sale. Thereafter, Scoroposki gave
Waldman purchase orders for standard Microelectronic
watches which Waldm in then forwarded to Micro. Micro
never formally confirmed the orders, but it did ship Macy’s
the watches."

Micro contends that Macy’s purchase by mail of watches
manufactured in Michigan constitutes the transaction of
business in Michigan and gives this court jurisdiction over
Macy’s under M.C.L.A. §600.715(1).

Macy’s only contact with Michigan was through the
ordering of goods by mail from a corporation in Michigan,
but it is well settled that in a proper case a single contact
with the forum state not involving the physical presence of
the defendant can be enough to give jurisdiction over the
defendant. In-Flight Devices Corp. v. Van Dusen Air, Inc.,
466 F.2d 220 (6th Cir. 1972) ; Kiefer v. May, 46 Mich. App.
566 (1973) ; Hadad v. Lewis, 382 F. Supp. 1365 (E.D. Mich.
1974); Mad Hatter, Inc. v. Mad Hatters Night Club Co.,
399 F. Supp. 889 (E.D. Mich. 1975).

Michigan, like several other jurisdictions, has inter-
preted its long-arm statute (M.C.L.A. §600.715) as being
the broadest grant of jurisdiction consistent with the con-
stitutional requirements of due process. Sifers v. Horan,
385 Mich. 195 (1971); Schneider v. Linkfield, 389 Mich.
608 (1973); Stan Sax Corp. v. Siefen Compounds, Inc.,
68 Mich. App. 768 (1976). Several jurisdictions have

1. At least one contract for sale to Bamberger’s was confirmed
by Jerry Allen in a letter dated July 11, 1975. Exhibit A to Joseph
Stanton affidavit.

da
Appendix A—Opinion of the District Court

concluded that the due process limitations prevent a state
from taking jurisdiction over a defendant such as Macy’s
who merely acted as a passive out-of-state buyer of an
in-state product. The United States District Court for
the Eastern District of Tennessee, for example, recently
held that to permit Tennexsee to take jurisdiction over a
foreign corporation which had ordered Tennessee goods
by mail would offend the ‘‘traditional notions of fair play
and substantial justice’? mandated by the due process
clause. International Shoe Co. v. Washington, 326 U.S.
310, 316 (1945), quoted in Garrett v. R.H. Macy & Co., Inc.,
360 F. Supp. 872, 877 (1972),? citing Darby v. Superior
Supply Co., 458 S.W.2d 423 (Tenn. 1970).

Michigan, in contrast, has indicated that due process
considerations do not prevent taking jurisdiction over a
passive buyer. In Anderson, Clayton ¢ Co. v. Atlas Con-
crete Pipe, Inc., 41 Mich. App. 58 (1972), the Michigan
Court of Appeals gave full faith and credit to a Texas
judgment against a Michigan corporation. The Texas
court had concluded that it had jurisdiction over the pas-
sive Michigan buyer under Texas law which provided
that ‘‘. . . any foreign corporation . . . shall be deemed
doing business in this state by entering into contract by
mail or otherwise with a resident of Texas to be performed
in whole or in part by either party in this state ...”’
Texas Rev. Stat. Art. 2031b §4. The Michigan Court of
Appeals decided that the Texas statute accorded with the

2. For examples of other cases interpreting similar statutes and
finding no jurisdiction over a defendant buyer in similar circumstances,
see O.N. Jonas Co., Inc. v. B & P Sales Corp., 206 S.E.2d 437 (Ga.
1974) ; Architectural Building Components Corp. v. Comfort, 528
P.2d 307 (Okla. 1974) ; Callender Printing Co. v. The District Court
In and For the Second Judicial District, 510 P.2d 889 a 1973) ;
pn Corp. v. Pacific Plastic Pipe Co., 304 N.E.2d 248 (Ohio App.
1973).

6a
Appendix A—Opinion of the District Court

requirements of due process. Since the Michigan long-
arm statute is considered the broadest grant of jurisdic-
tion consistent with the requirements of due process, the
logical application of Anderson, Clayton & Co. would
allow this court to take jurisdiction over Macy’s in the
instant case. See also Colony Press, Inc. v. Fleeman, 308
N.E.2d 78 (Ill. App. 1974).

Determining the outer limits of in personam jurisdic-
tion permitted by the due process clause is a federal ques-
tion, and, therefore, the Michigan Court of Appeals de-
cision in Anderson, Clayton & Co. is not controlling, al-
though it may be persuasive. The United States Supreme
Court has defined the due process limitations on obtaining
in personam jurisdiction over a defendant in three cases:
International Shoe Co. v. Washington, 326 U.S. 310 (1945) ;
McGee v. International Life Insurance Co., 344 U.S. 220
(1957); Hanson v. Denckla, 357 U.S. 235 (1958). From
these cases the United States Court of Appeals for the
Sixth Circuit has developed three criteria for determining
the outer limits of constitutionally permitted in personam
jurisdiction :

First, the defendant must purposely avail himself of
the privilege of acting in the forum state or causing
a consequence in the forum state. Second, the cause
of action must arise from the defendant’s activities
there. Finally, the acts of the defendant or conse-
quences caused by the defendant must have a sub-
stantial enough connection with the forum state to
make the exercise of jurisdiction over the defendant
reasonable.

Southern Machine Company v. Mohasco Indus-
tries, Inc., 401 F.2d 374, 381 (6th Cir. 1968).

th 8

7a
Appendix A—Opinion of the District Court

See also In-Flight Devices Corp. v. Van Dusen Air, Inc.,
466 F.2d 220, 226 (6th Cir. 1972); King v. Hailey Chevrolet
Co., 462 F.2d 63, 67 (6th Cir. 1972); Davis H. Elliot Co. v.
Caribbean Utilities Co., 513 F.2d 1176, 1181 (6th Cir. 1975).

The court holds that it has jurisdiction over Macy’s.
Macy’s purposely availed itself of the privilege of acting
in Michigan when it entered into a contract with a Michi-
gan corporation at least a part of which was to be per-
formed in Michigan. The cause of action arises out of
the enforcement of that contract.

Finally, in modern business practice, companies buy
and sell products in all parts of our country. Distance is
no longer a factor in these relationships. In a commercial
sense business activity realistically is not concerned with
state boundaries. What seems to dominate these relation-
ships is the obtaining a good product at the lowest cost
that can be sold at a profit. Viewed in this way it is
reasonable to exercise jurisdiction in a case such as this.

Accordingly, defendants’ motions to dismiss for lack
of personal jurisdiction are denied. Appropriate orders
may be submitted.

/s/ Joun FEIrKENs

Joun FEIKENS
United States District Judge

Date: January 31, 1977,
Detroit, Michigan.

8a

APPENDIX B

Opinion and Order of the Court of Appeals

No. 77-1308
UNITED STATES COURT OF APPEALS

For THE Sixts Crcvit

EG

R. H. Macy & Co., Inc. and BamMBERGER’s,

Petitioners,
v.

Unrrep States District Court ror THE EasTERN
District or Micuican, at Derzort,

Respondent.

Before: CrLesrezze, Peck and Laivety, Circuit Judges.

This matter having come before the Court on Petition-
ers’ Petition for Writ of Mandamus and it appearing that
petitioners have failed to show the existence of the ex-
ceptional circumstances which will justify the granting of
this extraordinary remedy, Kerr v. U.S. District Court,
426 U.S. 394 (1976),

It is OrperEp that the Petition for Writ of Mandamus be
and it hereby is denied.

ENTERED BY ORDER OF THE CovuRT

Joun P. Hexuman, Clerk

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2707%3A1. Public record. Not legal advice.