Petition — LAKESIDE BRIDGE & STEEL CO. v. MOUNTAIN STATE CONSTRUCTION CO. (No. 79-376)
Supreme Court brief1979
Ask Donna
What actually matters in this document.
Text
IN
Gupreme Court, U. gee
FILE D’
SEP 5 i979
THE UMictam noon; JR. CLERK
SUPREME COURT OF THE UNITED STATES SN aRida
October Term, 1979
No. 79 -3 76
see eweev ee eeewe eee es eevee eeee eee e
LAKESIDE BRIDGE & STEEL CO.
Petitioner,
Vv.
MOUNTAIN STATE CONSTRUCTION CO., INC.,
Respondent.
eeeoeveveevees +P eeeseeeeeeeeee eee e
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Of Counsel:
PETER C. KAREGEANNES
and
QUARLES & BRADY
780 North Water Street
Milwaukee, Wisconsin 53202
September 4, 1979
oeeveeveeeee eevee eevee eee eee ee eee
ELWIN J. ZARWELL
780 North Water Street
Milwaukee, Wisconsin 53202
(414) 277-5000
Attorney for Petitioner
THE DECISION BELOW AS WAS
RECOGNIZED BY THE COURT OF
APPEALS IN ITS DECISION CONFLICTS
WITH THE DECISIONS OF OTHER
COURTS OF APPEALS AS TO THE
CONTRACT ELEMENTS AND CONDUCT
NECESSARY TO CONFER JURISDICTION
OVER AN OUT-OF-STATE CORPORATE
TE cs 5 UREDAS > Gans saeegencsace ess :
THE DECISION BELOW CONFLICTS
WITH AND THE COURT OF APPEALS
RECOGNIZED THAT IT CONFLICTS
WITH THE DECISION OF THE HIGHEST
COURT OF THE FORUM STATE AS TO
THE REQUIREMENTS OF DUE PROCESS;
IT ALSO CONFLICTS WITH THE
DECISION OF THE HIGHEST COURT OF
THE FORUM STATE AS TO THE INTER-
PRETATION OF THE WISCONSIN
LONG-ARM STATUTE ..............0seeee-
THE DECISION BELOW CONFLICTS
WITH AND WAS RECOGNIZED BY THE
COURT BELOW TO CONFLICT WITH
THE DECISIONS OF THE HIGHEST
COURTS OF OTHER STATES AS TO THE
REQUIREMENTS OF DUE PROCESS IN
MP Rp ccaccsesyeicssecncoeccece
SWNN WN =
IV. THE DECISION BELOW CONFLICTS
WITH OTHER DECISIONS OF THE
SEVENTH CIRCUIT .......ccceccccccvecees 17
V. THE DECISION BELOW MISCONCEIVES
AND MISAPPLIES THE STANDARDS
ESTABLISHED BY THIS COURT IN
INTERNATIONAL SHOE, 326 U.S, 10
(1945), AND ITS PROGENY .............. ae ae
VI. THE DECISION BELOW RAISES SIG-
NIFICANT CONSTITUTIONAL ISSUES
AND RECURRING PROBLEMS CON-
CERNING THE JURISDICTIONAL
POWER OF BOTH FEDERAL AND
STATE COURTS IN CASES INVOLVING
COMMERCIAL INTERSTATE
TRANSACTION ........ | Seater 21
CONCLUSION 5 oo i... c. cs onesccescss Abieatiase 22
APPENDIX (Opinion, Judgment and Order on
Rehearing of Court of Appeals; Order of
ns Bee a eae tw ue ad os} 6.0008 e A
TABLE OF CITATIONS
Cases Page
Afram v. Balfour, Maclaine, Inc.,
63 Wis.2d 702
218 N, WZ 288 (1974)... cece cece ne eqees 14
- Ajax Realty Corp. v. J. F. Zook, Inc.,
394 F.2d 818 (4th Cir. 1972), cert. denied,
417U.S. 966 (1973):............ Se a a gg 12
7 Anderson v. Shiflett,
435 F.2d 1036 (10th Cir. 1971)....,........... 11,12
Colony Press, Inc. v. Fleeman,
17 Ill. App.3d 14, 308 N.E.2d 78 (1974) ........
Conn v. Whitmore,
9 Utah 2d 250
Re ae er a ae
Electro-Craft Corp. v. Maxwell Electronics Corp.,
4S7-F 2G S65 Gath Cie. 19GB) 6 nw ec rd ce he
Engineered Prod. v. Cleveland Crane &
Engineering,
262 S. C.1, 201 S.E.2d 921 (1974) .............
Erie Railroad Co. v. Tompkins,
PE UE a5. k oi ee eee eve eee te
E. R. Callender Printing Co. v. District Court,
182 Colo. 25
510 P.2d 889 (1973) (en banc) ................
Flambeau Plastics Corp. v. King Bee
Manufacturing Co.,
24 Wis.2d 459
ge de 0)” | RR 8S as 2h
Fourth Northwestern Nat. Bank v.
Hilson Industries,
264 Minn. 110
117 N.W.20 732 (0962) cand Sk Ae. ow. kd
Goldman v. Parkland of Dallas, Inc.,
277 N.C. 223
176 S.B.26 TEA LAGI aie OG A ea
Hanson v. Denckla,
22
16
8,9
16
14
15
14
16
16
SST US. ZED GRRSEP isin’ ec ceee 6,7,8,9,11,12,13,19,20,21
In-Flight Devices Corp. v. Van Deusen Air, Inc.,
466 F.2d 220 (6th Cir. 1972) ............ceeeee
9,10
iv
International Shoe v. Washington,
326 U.S. FUG CAR Be Ses SS IN a es 7,19,20,21
Kulko v. California Superior Court,
eS pita dass oc cinwce ncc.cne stv’ 20
Manufacturers’ Lease Plans, Inc. v.
Alverson Draughon College,
115 Ariz. 358
565 P.2d 864 (1977) (en banc) ................ 16
Marshall Egg Transport Co. v.
Bender-Goodman Co.,
275 Minn. 534
ROD PE We te RO CIOIBED 0 o's oc bode Caw 16
McGee v. International Life Insurance Co.,
3395: U.S. See Cee AW OAT 7,19,20,21
MclIntosh v. Navaro Seed Co.,
81 N.M. 302
GES PA Oe CAPT os - OER. ENE. 16
Miller v. Glendale Equipment & Supply, Inc., :
344 So.2d 736 (Miss. 1977) .............00 008. 16
O’Hare International Bank v. Hampton,
437 F.2d 1173 (7th Cir. 1971)............. ay 10,17,18
O. N. Joanis Co., Inc. v. B & P Sales Corp.,
232 Ga. 256
206 S.E:2d 437 (1974) .. 0... cece ewes 15,16
Pedi Bares, Inc. v. P & C Food Markets, Inc.,
$67 F.2d 933 (10th Cir. 1977)... 1... ccc ecw eee 11,12
Proctor &.Schwartz, Inc. v.
Cleveland Lumber Co.,
228 Pa. Super. Ct. 12
cP er) 85 0 | ne Dee eee be 16
Product Promotions, Inc. v. Cousteau,
495 F.2d 483 (Sth Cir. 1974)..:............... 12
Rath Packing Co. v.
Intercontinental Meat Trad. Inc.,
181 N.W.2d 184 (Iowa 1970) ................. 15
Schmitz v. Hunter Machinery Co.,
89 Wis.2d 388
Be TRIED © ok Pica pink dig ces ceccces 14
State ex rel White Lumber Sales, Inc. v.
Sulmonetti,
252 Or. 121
448 P.2d 571 (1968) (en banc) ................ 16
Sun-Ex International Co., Inc. v. Witt,
413 S.W.2d 761 (Tex. Ct. App. 1967).......... 16
United States Ry. Equip. Co. v.
Port Huron & Detroit R. Co.,
pe fbr iv: L* 7” | er 17,18
Zerbel v. Federman & Co.,
48 Wis.2d 54
179 N.W.2d 872 (1970), appeal dismissed,
FAB Ra RE aie en ee earn 13,14,22
Statutes
ns en, I a teen 3
Wis. Stat. Section 80) .05(5)(a) ................. 3,14
Wis. Stat. Section 801.05(5)(b) ................. 3,14
Wis. Stat. Section 801.05(5)(d) ................. 3
Wis. Stat. Section 801.11(5)(a) ................. 2,3,6
Be Aamir EMRE ona ce dcccscncecccces 2
p LES Rae Ss a a eae 15
SR a IED 6 96 pa eas ka ines poe 0e + 5006 t
eae Fig aed paisa ery |
sect RED we ate) See ER
| .. “af pone duis -
LTRS,
BES. SE LET
fe aa te ciety
i en
ee a a ee x
3 . Be pee wen
tiga a é aha Set og WF i, GTS
i ba ry, F es P i 71 J . rh ,
% ae i bin’ by 3 WS
ae Ge * es BS want “ania 4: ANE APT - yay.
i : ee ta a at * I r : :
eee . eh, , ZY vant oA
é wei te" 24 Bins » - “ 7 \ _
Be aR OO RES GENRE
ca ey. pee PINRO 2 SMES BR ne ane ERE oT ORS ee
“KO c wud 1 r* heeh ¥ 4 . ¢
po on ean rose :
« pyre ye ft .
} SPR Be ‘ thas a
* RR nae? ee AW :
pie, ARRIVE ios? 17H
ae (deve iN noksee wre 2b
ne. abn its Radin tate ai
Pane Fog o Brise HRs mpiive2 até Lal
pla be yee ks coeds 74> Ee ORR 22 AALBS
Balas 18 BRE SE OES... RS wolteee SHR SS.
: eee ae hae eng tan REY BONDED
eed ‘
ou :
; ilies, a $ .
y +) ‘ . * . 4 .
7 ee 4 - oil
oe it é . ; ns : % ‘
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1979
No.
eeeeoeeeaeeeeeeeeeeeeeeeeeeeeeeseeeeeeeeeeeeeeeveeeeveeeveee eee eo @
LAKESIDE BRIDGE & STEEL CO.,
Petitioner,
V.
MOUNTAIN STATE CONSTRUCTION CO., INC.
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE .
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
eoeeeevreeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeereeeeeeeeeeeeeeee
The Petitioner Lakeside Bridge & Steel Co. respectfully
prays that a Writ of Certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the Seventh
Circuit entered in this proceeding on April 30, 1979.
OPINION BELOW
The opinion of the court of appeals is reported at 597 F.2d
596 and appears in the Appendix hereto. No opinion was
rendered by the District Court for the Eastern District of
Wisconsin on the issue of personal jurisdiction, the sole issue to
which the court of appeals addressed itself. The district court’s
unpublished order also appears in the Appendix.
— |
_*
JURISDICTION
The judgment of the Court of Appeals for the Seventh Cir-
cuit was entered on April 30, 1979. A timely Petition for
Rehearing and Suggestion for Rehearing en Banc was denied on
June 8, 1979. This Petition for Certiorari was filed within ninety
(90) days of that date. This Court’s jurisdiction is invoked under
28 U.S.C. Section 1254(1).
QUESTION PRESENTED
1. Whether, in an action which arises out of its contacts
with the forum state, a nonresident corporate defendant who
orders $1,281,750.00 worth of specially fabricated goods from a
resident corporate plaintiff with knowledge that they were likely
to be, and which were in fact, fabricated in the forum state by
the plaintiff and were required to be shipped from the forum
state by the plaintiff has sufficient minimum contacts with the
forum state such that the assertion of personal jurisdiction over
it is consistent with due process.
STATUTORY PROVISIONS INVOLVED
WIS. STAT. Section 801.11:
Personal Jurisdiction, Manner of Serving Sum-
mons For. A court of this state having jurisdiction of
the subject matter and grounds for personal jurisdic-
tion as provided in s. 801.05 may exercise personal
jurisdiction over a defendant by service of a summons
as follows:
**
(5) Domestic Or Foreign Corporations,
Generally. Upon a domestic or foreign corporation:
(a) By personally serving the summons upon an
officer, director or managing agent of the corporation
either within or without this state. In lieu of delivering
«J.
the copy of the summons to the officer specified, the
copy may be left in the office of such officer, director
or managing agent with the person who is apparently
in charge of the office.
WIS. STAT. Section 801.05:
Personal Jurisdiction, Grounds for Generally.
A court of this state having jurisdiction of the subject
matter has jurisdiction over a person served in an ac-
tion pursuant to s. 801.11 under any of the following
circumstances...
(5) Local Services, Goods or Contracts. In any
action which:
(a) Arises out of a promise, made anywhere to
the plaintiff or to some third party for the plaintiff’s
benefit, by the defendant to perform services within
this state or to pay for services to be performed in this
state by the plaintiff; or
(b) Arises out of services actually performed for
the plaintiff by the defendant within this state, or ser-
vices actually performed for the defendant by the
plaintiff within this state if such performance within
this state was authorized or ratified by the defendant;
or
(d) Relates to goods, documents of title, or
other things of value shipped from this state by the
plaintiff to the defendant on his order or direction;...
STATEMENT OF THE CASE
This is an action for breach of contract between two cor-
porations: Lakeside Bridge & Steel Co., the petitioner herein,
incorporated under the laws of Wisconsin with its principal and
on mammpenmmmapenticctey cnn avine tty
a.
only place of business in Milwaukee, Wisconsin, and Mountain
State Construction Co., Inc., incorporated under the laws of
West Virginia, with its principal place of business in Charleston,
West Virginia. Petitioner filed this action in a Wisconsin State
Court. Respondent removed the action to the United States
District Court for the Eastern District of Wisconsin. The
jurisdiction of the district court was invoked under 28 U.S.C.
Section 1332 because of diversity of citizenship.
The contract required petitioner to furnish to respondent
certain structura! assemblies, for incorporation by respondent
into the outlet works for the Gathright Dam and Reservoir in
Virginia. Such assemblies were to be specifically fabricated by
petitioner in accordance with detailed specifications, drawings
and inspection procedures provided to respondent by the United
States Army Corps of Engineers and provided in turn by
respondent to petitioner. The total contract price was
$1,281,750.00.
At the bidding stage, respondent was visited in its offices in
West Virginia by petitioner’s agents who left a quotation cover-
ing the structural assemblies. After being awarded the general
contract for construction by the Corps of Engineers, respondent
prepared and mailed its purchase order covering four of the bid
items to petitioner in Milwaukee, Wisconsin. The purchase
order incorporated by reference the petitioner’s quotation. The
quotation provided that ‘‘[aJny order arising out of this pro-
posal ... is subject to home office acceptance at Milwaukee,
Wisconsin.’’ Petitioner signed the purchase order in Milwaukee
and returned it to respondent along with a letter objecting to the
liquidated damages provision contained in respondent’s order.
There were no further actions or communications by either par-
ty with respect to this provision. The legal effect of this
chronology with regard to whether contract acceptance oc-
curred in Wisconsin or West Virginia is disputed by the parties.
However, the appeliate court concluded that acceptance oc-
cured in West Virginia.
Pursuant to this contract, petitioner undertook to ‘‘furnish
labor and material to detail, fabricate, stress-relieve, machine,
A Roe ee mate en Bee te tee
-5-
shop assemble, test, match-mark and ship’’ four hydraulically
operated sluice gates and two hydraulically operated water
quality control gates, ‘‘to furnish labor and material to detail,
fabricate, machine, shop assemble and ship’’ one splash plate
and one water quality outlet liner and ‘‘to furnish labor and
material to detail, fabricate, machine and ship’’ stop logs, a
pick-up beam and embedded frames, all in accordance with the
Corps’ drawings and specifications. (Affidavit of F. W. Hauf,
dated December 20, 1973 [hereinafter Hauf Aff.] Ex. A at 2, 3
and 5.) The contract specified that the goods were to be supplied
by petitioner ‘‘F.O.B. seller’s plant Milwaukee, Wisconsin with
freight allowed to rail siding nearest project site.’’ It further
provided that ‘‘All terms and conditions of this proposal and
any transaction arising herefrom shall be governed by the law of
‘4 State of Wisconsin.’’ (Hauf Aff., Ex. A at 1) The contract
did not, by its specific terms, require the fabrication of the
goods in Wisconsin.
There were telephone conversations and correspondence
between petitioner in Wisconsin and respondent in West
Virginia, some initiated by respondent.
Petitioner has no place of business, employees or agents
resident or officed in any state other than Wisconsin. (Hauf
Aff., (2) Respondent has no place of business, property, bank
deposits, telephone, or telephone listing in Wisconsin and has
never sent any officer, agent or employee to Wisconsin. It has
had no contacts with Wisconsin except for those that gave rise
to this action.
Petitioner fabricated the goods at its plant in Milwaukee,
Wisconsin, over the course of many months, and shipped them
to a siding near the construction site in Virginia. They were
there received by respondent and incorporated into the project.
Subsequently, and after almost $996,000.00 of the prin-
cipal balance due under the contract had been paid to petitioner
by respondent, respondent withheld payment of the remainder
of the purchase price on the alleged ground that the goods fur-
nished by petitioner were defective.
a
Immediately prior to the commencement of this action
respondent tendered to petitioner $205,985.39, which was 75%
of the remaining unpaid principal balance on the contract, on
condition that petitioner waive interest due under the contract.
This conditional tender was refused.
Petitioner then filed this action to recover the unpaid prin-
cipal balance plus interest specifically required under the con-
tract. Service was made on respondeni in West Virginia by ser-
vice upon its president pursuant to Wis. Stat. Section
801.11(5)(a). After removal, respondent moved the district
court to dismiss the action for lack‘of personal jurisdiction or,
in the alternative, to transfer the case to either the Southern
District of West Virginia or the Western District of Virginia.
The district court denied the motion without opinion. Respon-
dent filed an answer and counterclaim alleging breaches of the
contract by petitioner. Petitioner replied to the counterclaim.
After an evidentiary hearing concerning only the admissibility
of certain parol evidence bearing on the scope and legal effect of
a written agreement by which petitioner contended the parties
had settled the issues raised by respondent’s counterclaim, the
district court found the evidence inadmissible and entered sum-
mary judgment in petitioner’s favor.
The judgment rendered by the district court in petitioner’s
favor was reversed by the court of appeals on the sole ground
that the district court lacked personal jurisdiction over the
respondent. The court of appeals did not address the merits. It
held, in summary, with principal reliance upon Hanson v.
Denckla, 357 U.S. 235 (1958), that respondent had not con-
ducted activities in the forum state, which it believed is required
by Hanson, that petitioner’s activity in the forum state,
although ‘‘in a sense’’ caused by respondent’s placement of the
order, was nonetheless ‘‘unilateral activity’ on the part of peti-
tioner, and that there was no act by which respondent ‘‘pur-
posefully avail[ed] itself of the privilege of conducting activities
2.
within the forum state, thus invoking the benefits and protec-
tions of its laws,’’ within the meaning of Hanson. (A. 12-13).
REASONS FOR GRANTING THE WRIT
I. THE DECISION BELOW AS WAS
RECOGNIZED BY THE COURT OF AP-
PEALS IN ITS DECISION CONFLICTS WITH
THE DECISIONS OF OTHER COURTS OF
APPEALS AS TO THE CONTRACT
ELEMENTS AND CONDUCT NECESSARY
TO CONFER JURISDICTION OVER AN OUT-
OF-STATE CORPORATE DEFENDANT.
In reliance upon what it conceives to be the principles
established by this court in /nternational Shoe, 326 U.S. 310
(1945), McGee and Hanson, the Seventh Circuit has here held
that the manufacture in the forum by a resident plaintiff-seller
of a substantial amount of specially fabricated goods required
to be and actually shipped from the forum in response to an
order placed by a nonresident defendant-buyer is not sufficient
to confer jurisdiction over the defendant, at least where the con-
tract does not specifically and eapHeitly require the plaintiff to
manufacture in the forum state.
1 The court said that McGee v. International Life Ins. Co., 355 U.S.
220 (1957), ‘‘offers little guidance in the situation before us because
that decision was based in substantial part on the special nature of the
business of insurance and must be read in conjunction with the subse-
quent decision in Hanson....’’ (A. 6-7) (footnotes omitted).
2 The Seventh Circuit found that the contract term specifying ship-
ment ‘‘‘F.O.B. Seller’s Plant in Milwaukee Wisconsin’ does not
establish that the contract required [petitioner] to perform its contrac-
tual obligations at its Wisconsin plant....’’ (A. 13). It expressed no
opinion as to whether the result would be different if the contract so
required. (A. 13 n. 13).
-8-
Although noting that ‘‘in a sense’’ the respondent had
caused the activity in Wisconsin by placing the order, the
Seventh Circuit stated that, in the absence of a contract provi-
sion requiring performance in the forum, the contract involved
left petitioner ‘‘in absciute control over where it would conduct
that activity and it made this decision and conducted the activity
unilaterally.’ (A. 13). While noting that the respondent caused
the activity in the forum state, and assuming that respondent
believed that petitioner would perform its contractual obiiga-
tion in the forum (A. 13), the court, emphasizing that in its view
Hanson requires that the defendant ‘‘conduct activities in the
forum state’’ (A. 14), concluded that respondent did not ‘‘pur-
posely vail itself of the privilege of conducting activities within
the forum state’’ within the language of Hanson. (A. 13). It
should be noticed that the decision below does not discuss or
even refer to the fact that by their contract the parties agreed
that Wisconsin law was to govern the transaction.
In its holding, the Seventh Circuit conceded that its deci-
sion conflicts with the decision of the Eighth Circuit in Electro-
Craft Corp. v. Maxwell Electronics Corp., 417 F.2d 365 (8th
Cir. 1969), sweeping aside other ‘‘contacts’’ relied upon by the
Eighth Circuit, many of which are present here, as insubstantial
on the basis that they ‘‘would be present in almost any interstate
transaction.”’ (A. 9).
The Eight Circuit expressly held that the defendant pur-
posely availed itself of the privilege of doing business with a
Minnesota resident:
“It entered into a transaction having an impact
on the commerce of that state. By so doing, it invoked
the benefit and protection of Minnesota’s laws and
could reasonably have anticipated that its act would
have consequences in Minnesota. The fact that no
agent of the defendant entered this state is not con-
trolling [Citation omitted].’* /d. at 369.
The Eight circuit noted that ‘‘[w]hile the contract was con-
summated in Texas, contractual consequences were reasonably
-9-
anticipated in Minnesota.’’ Jd. It further noted that the transac-
tion was a ‘‘significant’’ one involving the sale and shipment of
numerous units over a three week period whose value exceeded
$132,000.00 Jd. The contract here in suit exceeded that contract
by more than a million dollars.
In Electro-Craft, it was the defendant’s voluntary entry in-
to a transaction having an impact on the commerce of the
forum state that fundamentally accounts for the Eighth
Circuit’s holding. The Seventh Circuit squarely disagreed.
Moreover, the additional factors deemed significant jurisdic-
tional ‘‘contacts’’ by the Eight Circuit, /d. at 369, are deemed
insubstantial by the Seventh Circuit.
Although not noted by the Seventh Circuit, its decision is
also in direct conflict with the Sixth Circuit’s decision in /n-
Flight Devices Corporation v. Van Deusen Air, Inc., 466 F.2d
220 (6th Cir. 1972). In a case arising under the Ohio long arm
statute, the Sixth Circuit concluded that what the Seventh Cir-
cuit considers ‘‘unilateral activity’? by the plaintiff the Sixth
Circuit considers ‘‘purposeful action’’ by the defendant within
the meaning of Hanson.
In sustaining jurisdiction, the Sixth Circuit stated with
referenee to the ‘‘purposefully avails’’ language of Hanson:
“In this Circuit one has ‘acted’ so as to transact
business in a state ‘when obligations created by the
defendant or business operations set in motion by the
defendant have a realistic impact on the commerce of
that state.” Such ‘acts’ become purposeful if the
defendant ‘should have reasonably foreseem that the
transaction would have consequences in that state.’
[Citation omitted].’’ /d. at 226 (emphasis added).
With reference to the case before it, the Sixth Circuit said:
‘*{The defendant] entered into contract negotiations
involving a substantial order for the manufacture of
goods with a firm which it necessarily knew was based
-10-
in Ohio and had its production facilities located
within that State. That the making (and breaking) of a
contract with the Plaintiff would have substantial
consequences with the State of Ohio is a reality of
which Defendant could not have been ignorant. [Cita-
tions omitted].‘‘ Jd. at 227.
The court continued:
**Certainly the intentional entering into a contractual
relationship with a resident of the forum state is suffi-
cient to protect against the Hanson v. Denckla pro-
blem and so to meet the purposeful action require-
ment’’ Jd. at 228.
The Sixth Circuit assesses whether a breach of contract
cause of action arises out of the defendant’s transaction of
business in the forum by looking to the effects within the forum
state itself. Jd. at 229. The Seventh Circuit focuses not on the ef-
fects but on the geographical location of the events giving rise to
the in-state effects. (E.g., A. 12).
Lastly, the Sixth Circuit concluded that fairness did not
preclude the assertion of jurisdiction in a commercial contract
dispute between two corporations:
“*It cannot be disputed that a state has an interest in
resolving a suit brought by one of its residents. [Cita-
tions omitted]. That interest necessarily becomes more
significant when, as here, a contract calling for
substantial production of goods is entered into, with
the production of goods and other performance under
the contract to take place entirely within the forum
state. [Citing, inter alia, the Seventh Circuit’s decision
in O’Hare International Bank v. Hampton, 437 F.2d
1173, 1177 (7th Cir. 1971)}. Holding a defendant
answerable for his failure to perform the obligations
imposed upon him by such a contract is consistent
with Ohio’s express policy of securing to _ its
businessmen the benefit of their bargains.’’ Jd. at 232.
-l1-
The controlling significance accorded by the Sixth Circuit
to performance by the resident plaintiff in the forum state
caused by a nonresident’s voluntary entry into a “ontractual
relationship with a resident squarely conflicts with the Seventh
Circuit’s evaluation of the identical jurisdictional contacts pre-
sent in this case.
The Seventh Circuit, on the basis of Anderson v. Shiflett,
435 F.2d 1036 (10th Cir. 1971), identified the Tenth Circuit as
among those agreeing with its decision. Anderson involved the
performance of a contract made by two private individuals for
architectural services in the forum state. The Tenth Circuit, in-
timating that a contract between individuals might require more
to sustain jurisdiction than one between corporations, found
determinative the fact that ‘‘[nJothing in the record discloses the
reasonable anticipation of contractual consequences in
Oklahoma.’”’ Jd. at 1038.
That the case involved a contract between individuals and a
record which in that context the court found wanting not only
distinguishes Anderson from the instant case but also
distinguishes Anderson from a subsequent decision of the Tenth
Circuit. In Pedi Bares, Inc. v. P & C Food Markets, Inc., 567
F.2d 933 (10th Cir. 1977), the Tenth Circuit in an action be-
tween two corporations sustained jurisdiction over a nonresi-
dent buyer, where purchase orders sent by the buyer were ac-
cepted in the forum, where goods were manufactured in, and
shipped from, the forum by the plaintiff and where partial pay-
ment was made to the plaintiff in the forum. The Tenth Circuit
held that the requirements of Hanson were met in that defen-
dant’s acts (conducted wholly outside the forum) were pur-
poseful and their consequences in Kansas_ reasonably
foreseeable. /d. at 937.
Pedi Bares is both more recent than Anderson and presents
facts which more directly reflect the Tenth Circuit’s views on the
-12-
issue involved here.? Contrary to the Seventh Circuit’s asser-
tion, its holding conflicts with that reached by the Tenth Circuit
on similar facts.
The Fifth and Fourth Circuits also conflict with the deci-
sion of the Seventh Circuit. In Product Promotions, Inc. v.
Cousteau, 495 F.2d 483 (Sth Cir. 1974), the Fifth Circuit sus-
tained jurisdiction over the corporate defendant where its only
contact with the forum state was the mailing to the forum of
reports and film the substantive work for which was done out-
side the United States. Jd. at 494-499. The court deemed the re-
quirements of Hanson satisfied in that defendant’s contact with
the forum were deliberate rather than fortuitous, i.e., ‘‘[The
corporate defendant] voluntarily entered a transaction with one
it knew to be a Texas resident, a transaction which had a
substantial connection with Texas and which [the defendant]
had reason to know could have consequences in Texas.”’ /d. at
497 (footnotes omitted).
In Ajax Realty Corporation v. J. F. Zook, Inc., 493 F.2d
818 (4th Cir. 1972), cert. denied, 411 U.S. 966 (1973), the court
sustained jurisdiction in a breach of warranty action against a
corporate nonresident defendant whose sole contact with the
forum was the shipment into the forum of $37,000 worth of
goods as an accommodation to a third party who had con-
tracted with the plaintiff for their purchase. In addressing the
constitutionality of the exercise of jurisdiction in this context,
the court stated: ‘‘[W]e conclude that [the defendant] enjoyed
a sufficient financial benefit from the use of its frames in
Virginia so that it would not be unreasonable to hold that it
must account in Virginia for alleged defects, at least in a case
like this where the statute requires, and [the defendant]
ultimately had, a reasonable expectation that the frames would
be used in Virginia [Citation omitted].’’ Jd. at 822.
3 Note that J udge Breitenstein authored both the Anderson and Pedi
Bares decisions. Significantly, he made no reference to Anderson in
his decision in Pedi Bares.
-13-
These conflicts in the circuits justify the grant of certiorari
to review the judgment below.
Il. THE DECISION BELOW CONFLICTS WITH
AND THE COURT OF APPEALS
RECOGNIZED THAT IT CONFLICTS WITH
THE DECISION OF THE HIGHEST COURT
OF THE FORUM STATE AS TO THE RE-
QUIREMENTS OF DUE PROCESS; IT ALSO
CONFLICTS WITH THE DECISION OF THE
HIGHEST COURT OF THE FORUM STATE
AS TO THE INTERPRETATION OF THE
WISCONSIN LONG-ARM STATUTE.
The Seventh Circuit recognized ‘‘the possibility, if not the
likelihood,’’ on the basis of Zerbel v. Federman & Co., 48
Wis.2d 54, 179 N.W.2d 872 (1970), appeal dismissed, 402 U.S.
902 (1971), that the Wisconsin Supreme Court would have sus-
tained the assertion of personal jurisdiction over the respon-
dent. (A. 5). In Zerbel, an action brought by an individual
plaintiff against a corporate defendant, jurisdiction was sus-
tained on the basis of a contract for the performance by the
plaintiff in Wisconsin of professional architectural services. The
initial meeting between the parties giving rise to the contract in
suit occurred in Illinois. The agreement was signed by plaintiff
in New York. 179 N.W.2d at 873-74. In holding that the re-
_ quirements of Hanson were met, the Wisconsin court stated:
“*It is clear, here, that the defendant caused the
consequence in the forum state wherein it contracted
for services to be performed by the plaintiff, which
services the trial court could reasonably infer were to
be performed in Wisconsin.’’ 179 N.W.2d at 877.
Among the bases upon which the Seventh Circuit viewed
Zerbel as distinguishable was that it involved a contract for ser-
vices rather than a contract for the sale of goods. (A. 4-5).
However, the Wisconsin Supreme Court views a contract for
the sale of goods as a stronger rather than a weaker case:
-14-
“‘Nature and Quality of Contacts. Although this
contact with Wisconsin did not have the effect on the
commerce of the state as though defendant had taken
a share in the state markets by ... purchasing goods
within the state ..., the contact was such that we can
conclude that defendant purposely availed ‘itself of
the privilege of conducting activities [in Wisconsin],
thus invoking the benefits and protections of its
laws.’’? 179 N.W.2d at 878 [footnotes omitted].
In addition, the Wisconsin Supreme Court in cases decided
after Zerbel has repeatedly said that facts falling within the re-
quirements of the Wisconsin long-arm statute (the court below
found the facts in this case to be within the statute [A. 6], prima
facie meet constitutional demands. E.g., Afram v. Balfour,
Maclaine, Inc., 63 Wis.2d 702, 218 N.W.2d 288, 294 (1974);
Schmitz v. Hunter Machinery Co., 89 Wis.2d 388, 279 N.W.2d
172, 178-179 (1979).
Furthermore, in Flambeau Plastics Corp. v. King Bee
Manufacturing Co., 24 Wis.2d 459, 129 N.W.2d 237, 241
(1964), a decision dealing solely with the application of the
Wisconsin long-arm statute, the court held that, in an action
based upon a contract to pay for goods to be manufactured by
the seller in Wisconsin, the action arises both out of a promise
by defendant to pay for services to be performed in Wisconsin
by the plaintiff and out of services actually performed in
Wisconsin by plaintiff for defendant: Thus, subparagraphs (a)
and (b) of what is now Wis. Stat. Section 801.05(5) also afford
statutory grounds for jurisdiction. The Seventh Circuit stated
that ‘‘[sJubsections (a) and (b) are obviously inapplicable
because they deal with services.’ (A. 6). The Wisconsin
Supreme Court’s holding on this issue of the construction of the
state statute was binding on the Seventh Circuit under Erie
Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
The Seventh Circuit, in holding that the personal services
sections of the Wisconsin Statute were not applicable, also
squarely conflicts with the holding of the Wisconsin Supreme
Court on the construction of a state statute.
-15-
Thus, it is virtually certain that the Wisconsin Supreme
Court would have reached a statutory construction and conclu-
sion contrary to that of the Seventh Circuit. Furthermore,
through these conflicting interpretations the court below cir-
cumvented a direct holding that the Wisconsin statute is un-
constitutional under the federal Constitution. That holding
would be appealable as a matter of right under 28 U.S.C. Sec-
tion 1254(2).
A recognition of the conflict in state statute construction
and the application of tre Wisconsin Supreme Court’s construc-
tion justify at least the grant of certiorari to review the judgment
of the court of appeals attempting to uphold the Wisconsin
Statute on the basis of 2 construction contrary to that given the
statute by the Wisconsin Supreme Court.
Ill. THE DECISION BELOW CONFLICTS WITH
AND WAS RECOGNIZED BY THE COURT
BELOW TO CONFLICT WITH THE DECI-
SIONS OF THE HIGHEST COURTS OF
OTHER STATES AS TO THE RE-
QUIREMENTS OF DUE PROCESS IN THIS
CONTEXT.
The Seventh Circuit correctiy observed that ‘‘State courts
are similarly divided.’’ (A. 10 n.9). However, the number of il-
lustrative state court cases cited in the decision below convey
neither the frequency with which state courts, like the federal
courts,4 have grappled with the considerations presented by this
petition nor the extent of the conflict. The additional cases in
accord with the Seventh Circuit’s decision here are noted in the
footnote: below.»
4 The decision below also noted the conflict within the federal district
courts. (A. 9-10 n.9).
5 & R. Callender Printing Co. v. District Court, 182 Colo. 25, 510
P.2d 889 (1973) (en banc); Rath Packing Co. v. Intercontinental Meat
Trad. Inc., 181 N.W.2d 184 (lowa 1970); O. N. Joanis Co., Inc. v. B.
-16-
Cases in addition to those cited in the decision below which
are in direct conflict are:
Manufacturers’ Lease Plans, Inc. v. Alverson
Draughon College, 115 Ariz. 358, 565 P.2d 864 (1977)
(en banc) (involving a lease requiring plaintiff’s best
effort services);
Miller v. Glendale Equipment & Supply, Inc., 344
So.2d 736 (Miss. 1977) (involving shipment by defen-
dant into forum under contract for goods);
McIntosh v. Navaro Seed Co., 81 N.M. 302, 466 P.2d
868 (1970) (involving contract for goods);
Goldman v. Parkland of Dallas, Inc., 277 N.C. 223,
176 S.E.2d 784 (1970) (involving a contract for
solicitation services);
State ex rel White Lumber Sales, Inc. v. Sulmonetti,
252 Or. 121, 448 P.2d 571 (1968) (en banc) (involving
a contract for sale of goods);
Proctor and Schwartz, Inc. v. Cleveland Lumber Co.,
228 Pa. Super. Ct. 12, 323 A.2d 11 (1974) (involving a
contract for goods);
Engineered Prod. v. Cleveland Crane & Engineering,
262 S.C. 38, 201 S.E.2d 921 (1974) (involving a con-
tract for goods and installation services).
Footnote 5 (continued)
& P. Sales Corp., 232 Ga. 256, 206 S.E.2d 437 (Ga. 1974); Fourth
Northwestern Nat. Bank v. Hilson Industries, 264 Minn. 110, 117
N.W.2d 732 (1962); Marshal! Egg Transport Co. v. Bender-Goodman
Co., 275 Minn. 534, 148 N.W.2d 161 (1967); Conn. vy. Whitmore, 9
Utah 2d 250, 342 P.2d 871 (1959); Sun-Ex International Co., Inc. v.
Witt, 413 S.W.2d 761 (Tex. Ct. App. 1967).
-17-
These conflicts further justify the grant of certiorari to
review the judgment below.
IV. THE DECISION BELOW CONFLICTS WITH
OTHER DECISIONS OF THE SEVENTH
CIRCUIT.
O’Hare International Bank v. Hampton, 437 F.2d 1173
(7th Cir. 1971), involved a suit by the assignee of a lease of an
aircraft against its guarantors. Negotiations for the lease were
commenced by phone call to the lessor’s Chicago office by one
of the thirteen individual guarantor defendants. Subsequent
discussions with one of the guarantors occurred in Illinois. The
lease was deemed not accepted until executed in Illinois,
payments under it were to be made at Chicago and the
guarantee specified that it was to be construed according to II-
linois law. The court held that personal jurisdiction over all of
the thirteen defendants, none of whom was a resident of II-
linois, did not offend traditional notions of fair play and
substantial justice.
The Seventh Circuit stated:
‘‘The defendants certainly must have con-
templated the effects in Illinois of a failure to make
the monthly rental payment. Furthermore, the fact
that the guarantee was to be construed according to Il-
linois law and performed in that state clearly
demonstrates that the defendants ‘invoked the
benefits and protection’ of the state.’’ Jd. at 1177
(citations omitted) (emphasis added).
The Seventh Circuit viewed the jurisdictional facts in
United States Ry. Equip. Co. v. Port Huron & Detroit R. Co.,
495 F.2d 1127 (7th Cir. 1974), as ‘‘substantially in-
distinguishable’ from O’Hare. 495 F.2d at 1129. This action in-
volved an Illinois plaintiff-lessor’s suit against a Michigan
defendant-lessee to recover amounts due under a lease agree-
ment covering four hundred railroad box cars. The lease and its
-18-
extension were solicited, without defendant’s request, by plain-
tiff’s agent at the defendant’s Michigan offices. Before the lease
was executed, an agent of defendant visited plaintiff’s shop in
illinois for the purpose of inspecting plaintiff’s facilities. After
the lease’s execution, the same agent returned to inspect the cars
prior to delivery. The lease was found to have been accepted by
defendant in Michigan. Two hundred eighty-eight of the four
hundred railroad cars were repaired by plaintiff in Illinois at a
facility listed in an industry Register as the home repair shop for
the defendant’s leased cars. The lease provided that Illinois law
was to govern and required that rental payments were to be
made at plaintiff's Chicago office or at such other place as
plaintiff may direct.
The court stated:
“The only significant fact present in O’Hare
which is missing here is that in O’Hare the defendant
initiated the lease negotiations by contacting
plaintiff’s assignor in Illinois. Jn the context of the
present transaction between corporations, involving
substantial sums of money, we cannot regard such dif-
ferences as controlling. The present lease con-
templated and in fact produced substantial on-going
activity within Illinois, a factor apparently not present
in O’Hare.”’ Id. at 1130 (emphasis added).
The holdings of the Seventh Circuit in these two cases can-
not be reconciled with its holding in this case. In these earlier
cases the fact that the agreement specified that the law of the
forum would govern and that performance occurred or was to
occur in the forum were held sufficient to demonstrate that the
benefits and protection of the forum state had been invoked by
the defendants. In this case, performance in the forum was said
to be not enough. No reference was even made to the contrac-
tual requirement that the law of the forum was to govern. No
reference was made to these earlier cases where the Seventh Cir-
cuit relied on the fact that the defendants expressly and in
writing had voluntarily invoked the befiefits and protections of
the law of the forum.
ee ee ee
a a a ee res eee ee re ee ee
-19-
This intra-circuit conflict also justifies the grant of cer-
tiorari since it relates to a recurring and important constitu-
tional issue and is accompanied by a wide-spread conflict
among the circuits, among the states and among the district
courts.
Vv. THE DECISION BELOW MISCONCEIVES
AND MISAPPLIES THE STANDARDS
ESTABLISHED BY THIS COURT IN INTER-
NATIONAL SHOE, 32% U.S. 10 (1945), AND
ITS PROGENY.
The decision below ignores the very realities of the modern-
day conduct of commercial business between two corporations
which this Court has continually reiterated compelled the adop-
tion of the ‘‘minimum contacts’’ analysis. This is caused by the
Seventh Circuit’s implicit insistence on ‘‘purposeful’’ activity by
the defendant within the forum. As a result, respondent’s ‘‘pur-
poseful’’ interstate acts by mail and telephone resulting in its
voluntary entry into a contractual transaction with petitioner
which respondent knew or believed would and which in fact did
cause substantial effects within the forum are characterized as
‘‘unilateral activity’? of petitioner and held insufficient on the
basis of Hanson.
That the contract on which this suit is based had a substan-
tial connection with Wisconsin, as required by McGee, 355 U.S.
at 223, cannot be questioned. That decision, as it applies to a
commercial seeting, cannot be and, it is believed, was not in-
tended to. be limited to the ‘‘special nature of the business of in-
surance’’ or similarly regulated industries. McGee states that
‘*fijt is sufficient for purposes of due process that the suit was
based on a contract which had substantial connection with that
State.’’ Jd. That an industry such as insurance is regulated may,
in a given case, assist in providing the required ‘‘substantial con-
nection;’’ but regulation of the industry does not thereby
become a necessary factor in determining whether a transaction
in suit had a ‘‘substantial connection’’ with the forum. Indeed,
the fact that the single-act long arm statutes, like the one in-
volved in this case and like those involved in the other cases dis-
-20-
cussed or cited herein, are undoubtedly based in large measure
on McGee reflects the considered perception that McGee is not
properly so limited.
Hanson’s admonition that more than ‘‘unilateral activity’’
by the resident plaintiff is required in the nature of ‘‘some act by
which the defendant purposely avails itself of the privilege of
conducting activities within the forum State, thus invoking the
benefits and protections of its laws,’’ 357 U.S. at 253, was in-
tended to insure that jurisdiction be based on a contract having
substantial connection with the forum state resulting from a
voluntary act of the defendant which the defendant knew,
believed or should have contemplated would have such an effect
within the forum. This case meets this standard, and the court
below so found. (A. 13).
The decisions of this court do not require that in a commer-
cial contract setting the defendant’s voluntary and purposeful
act be evidenced or accomplished by more than the use of in-
terstate mail or telephone. To require more than is present here
is to parse the words of this Court in vacuo.
The latest word from this Court on the subject is Kulko v.
California Superior Court, 436 U.S. 84 (1978) (6-3 decision), in-
volving an action for child support. Although holding that per-
sonal jurisdiction over the nonresident parent could not be sus-
tained, the Court, in identifying what was lacking in the case
before it, referred to jurisdictional facts which the Court ap-
parently deemed sufficient. Such facts are present here. In the
case at bar, respondent ‘‘purposefully derive[d] benefit from ac-
tivities relating’’ to the State of Wisconsin, which caused an
“‘effect’’ in Wisconsin, i.e., ‘“commercial activity affecting state
residents,’ giving rise to a cause of action arising from the
**[respondent’s] commercial transactions in interstate com-
merce.’” Id. at 96-97.
The majority decisisn in Kulko demonstrates a rationale
under which the Seventh Circuit’s application of the minimum-
contacts test in this case is an unwarranted restriction of /nter-
—
—
3h.
national Shoe never intended by this Court. This restriction, if
sustained, would sanction a result that is not fair, just or
reasonable.
VI. THE DECISION BELOW RAISES SIGNIFI-
CANT CONSTITUTIONAL ISSUES AND
RECURRING PROBLEMS CONCERNING
THE JURISDICTIONAL POWER OF BOTH
FEDERAL AND STATE COURTS IN CASES
INVOLVING COMMERCIAL INTERSTATE
TRANSACTIONS.
Commercial interstate contracts between business enter-
prises frequently reach the courts. Any confusion, inconsistency
or uncertainty of result imposes a serious burden upon that
commerce. In that setting this case presents conflicting decisions
so severe and widespread that it must be said that our federal
and state courts viewed as a single, uniform system of justice do
not know what due process requires in this recurring factual
context.
In the almost thirty-five years since /nternational Shoe, this
Court has yet to decide whether and under what circumstances a
single contract out of which a suit arises, other than an in-
surance contract (assuming McGee is to be so limited), having
substantial connection with the forum is sufficient as a matter
of due process. The lower courts at least appear to have found
no helpful amplification of the Jnternational Shoe doctrine
since this Court’s decision in Hanson in 1958, in which, unlike
McGee so far as the majority was concerned, the cause of action
did not arise out of the defendant’s contact with the forum.
Hanson, 357 U.S. at 251.
The time has come for this Court to mark definitive
guidelines in the application of Jnternational Shoe to the single-
act commercial contract context. This Court has already
awaited the perspective of time. If anything, the recent vintage
of many of the decisions discussed or cited herein evidence a
widening not a narrowing of the chasm. On substantially in-
5.
distinguishable facts, the holdings vary from circuit to circuit
and state to state.
Moreover, the inconsistency and uncertainty is such that,
within the Seventh Circuit at least, the choice of state or federal
forum in diversity actions, or indeed the selection of the panel,
is literally outcome determinative. Compare Zerbel, supra, 48
Wis.2d 54, 179 N.W.2d 872 (1970), and Colony Press, Inc. v.
Fleeman, 17 Ill. App. 3d 14, 308 N.E.2d 78 (1974), and the
analysis of the Seventh Circuit’s own decisions discussed above
with the decision below.
CONCLUSION
For these reasons, a Writ of Certiorari should issue to
review the judgment and opinion of the Seventh Circuit.
Respectfully submitted,
ELWIN J. ZARWELL
780 North Water Street
Milwaukee, Wisconsin 53202
Attorney for Petitioner
Of Counsel:
Peter C. Karegeannes
and
QUARLES & BRADY
780 North Water Street
Milwaukee, Wisconsin 53202
A
INDEX TO APPENDIX
Opinion of Court of Appeals .
Judgment of Court of Appeals
Order on Rehearing of Court of Appeals .............
Order of District Court ......
&
* int £
Rana Rane
bs Tae om
Vedra
atk we
wheal’ > BE 4
’
tf
FY Oe WS oe ie
nee
* \ ‘
Y by *
* o
; 8
J .
a i
~
ye
s ‘
ee). f a
;
>, » .
,
4y 4 ‘
..
‘
~-
: ‘
pis asl t »
™“ F P
‘
po BS try
ry >
thw Pe
bd .
Cee t,8 . 5 4
‘
‘
a
“% ‘
OY asa in
deh ¢ FP: aad: i
i
du ihe
United States Court of Appeals
Bor the Seuenth Cirrnit
No. 78-1614
LAKESIDE BRIDGE & STEEL Co.,
Plaintiff-A ppellee,
v.
MOUNTAIN STATE CONSTRUCTION Co., INC.,
Defendant-A ppellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 73-C-649—John W. Reynolds, Judge.
ARGUED JANUARY 26, 1979—Decipep Aprit 30, 1979
Before PELL and TONE, Circuit Judges, and LEIGHTON,
District Judge.*
TONE, Circuit Judge. The issue we find decisive in this
contract case is whether the due process clause of the
Fourteenth Amendment allows Wisconsin to assert
panes jurisdiction over a nonresident corporation that
conducted no activities in Wisconsin. We hold that
Wisconsin lacks jurisdiction and reverse the judgment
entered in favor of plaintiff by the district court.
Plaintiff, Lakeside Bridge & Steel Company, is a
isconsin corporation with its principal place of busi-
ness in Milwaukee. Defendant, Mountain State Con-
* The Ilonorable George N. Leighton, District Judge of the
United States District Court for the Northern District of
Illinois, is sitting by designation.
2 No. 78-1614
struction Company, is a West Virginia corporation with
its principal place of business in Charleston in that
state. Mountain State has no place of business, property,
bank deposits, telephone, or telephone listing in Wis-
consin and has never sent any officer, agent, or
employee to that state; nor has it had any other kind of
contact with Wisconsin except for the events that gave
rise to this action.
The contacts between the parties all occurred outside
Wisconsin or by interstate mail or telephone. The
contract in question called for Lakeside to furnish
structural assemblies to Mountain State for use in
constructing the outlet works for the Gathright Dam
and Reservoir in Virginia. While Mountain State was
preparing to bid on that project, it was visited in its
offices in West Virginia by Lakeside’s agents, who
solicited the subcontract for the structural assemblies
and left a proposal. After Mountain State had been
awarded the contract for the construction of the outlet
works, it accepted the proposal by pre ing and
mailing a purchase order add to eside in
Milwaukee. Lakeside made a change in the purchase
order and returned it to Mountain State, which did not
approve the change formally but did so by treating the
modified purchase order as effective. Between the initial
visit by Lakeside’s — and the return of the purchase
order, and presumably afterward, there were telephone
conversations between Lakeside in Wisconsin and Moun-
tain State in West Virginia, some placed by Mountain
State, and there was correspondence between the
parties, some mailed by Mountain State.
The Lakeside proposal, incorporated by reference in
the purchase order, provided that the were to be
supplied by Lakeside “F.O.B. SELLERS PLANT MIL-
WAUKEE, WISCONSIN with freight allowed to rail
siding nearest project site.” (The words in capitals were
printed; the rest was typewritten.) Nothing was said
Se about where the goods were to be manu-
actured.
Lakeside proceeded to manufacture the goods at its
plant in Wisconsin and ship them to a siding near the
No. 78-1614 3
mroject site in Virginia, where they were received by
ountain State and incorporated into the construction
project. Subsequently Mountain State, asserting that the
goods had been found to be defective in certain respects,
withheld payment of a part of the purchase price.
Lakeside then filed this action in a Wisconsin state
court to recover the unpaid balance under the contract,
alleging that the court had personal jurisdiction over
Mountain State under the Wisconsin long-arm statute,
Wis. Stat. §§ 801.05, 801.11. Mountain State removed the
action to the United States District Court for the
Eastern District of Wisconsin and there filed a motion to
dismiss for lack of personal jurisdiction or, in the
alternative, to transfer the case to either the Southern
District of West Virginia or the Western District of
Virginia. The court denied the motion, and Mountain
State filed an answer and counterclaim alleging breach-
es of the contract by Lakeside. After calling the case for
trial and selecting a jury, the court declared a mistrial
and ordered a continuance. Thereafter the court held an
evidentiary hearing concerning only the admissibility of
certain parol evidence, found the evidence inadmissible,
and entered summary judgment in favor of Lakeside.
This appeal followed. Although the parties argue both
jurisdiction and the merits of the summary judgment,
we reach only the issue of jurisdiction.
Before coming to the principal question to be decided,
we mention two B ghrp vsreds matters. First, although
Congress could, if it chose, extend the jurisdiction of
federal courts in any kind of case subject to the federal
judicial power to persons found anywhere within the
nited States, it has not done so. A federal court has
jurisdiction over a diversity case, such as the one at bar,
only if a court of the state in which the federal court is
sitting would have jurisdiction. Fed. R. Civ. P. 4(e) and
anh See 2 Moores Federal Practice, %44.41-1{1] and
4.32[2} (1978); 4 Wright & Miller, Federal Practice and
ure: Civil § 1075 (1969). Thus the jurisdictional
issue in the case at bar is the same as it would have
been if the case had remained in the state court from
which it was removed.
4 No. 78-1614
The second preliminary matter concerns our role in
interpreting the Wisconsin statute. Ordinarily we would
be required to accept the interpretation given a state
statute by the state’s highest court. Here, however, the
statute was intended by the state legislature to reach
only so far as permitted by the due process clause of the
Fourteenth Amendment to the United States Consti-
‘ tution and no further.' Flambeau Plastics Corp. v. King
Bee Mfg. Co., 24 Wis.2d 459, 464, 129 N.W.2d 237, 240
(1964). In these circumstances we are interpreting the
statute, not ruling on its constitutionality, when we
decide the due proces question; yet we are of course not
bound by the Wisconsin Supreme Court's determination
of that federal question. See Zerbel v. Federman & Co.,
48 Wis.2d 54, 60, 179 N.W.2d 872, 875 (1970).
We have considered, with respect for that court’s
views on the federal due process question, the scholarly
opinion for the court in Zerbel v. Federman & Co.,
supra, 48 Wis.2d 54, 179 N.W.2d 872, in which the effect
of the contract in Wisconsin was the plaintiff's per-
formance in that state of professional services which the
out-of-state defendant knew would be performed there.
The court, with one justice dissenting, upheld juris-
diction, adopting a flexible due process test which was
-said to be on five enumerated factors? but which,
in the end, turned on reasonableness and fairness. That
case is distinguishable from this one on several grounds:
There, on two or three prior occasions, similar contracts
had been entered into and performed by the parties. The
defendant had initiated the negotiations. The holding as
to jurisdiction was based on the personal service
' In this ae res the Wisconsin statute is like those of a
number of r_ states, eg. Cal. Civ. Proce. Code § 410.10
(West); Nelson v. Miller, 11 lil. 2d 878, 143 N.E.2d 673 (1957).
2 Derived from then Judge Blackmun’s opinion in niise
v, Economy Baler Co., 343 F.2d 187, 197 (8th Cir. 1965), the
five factors are the quantity of the contacts, their nature and
quality, the connection of the cause of action with the contacts,
e
Wi
interest of the forum state, and convenience. The
isconsin court also mentioned the interest of the defendant’s
home state, 48 Wis.2d at 66, 179 N.W.2d at 878-879, although
little, if any, weight was given that interest.
No. 78-1614 5
rovision of the Wisconsin long-arm statute, Wis. Stat.
§ 801.06(5Xa),2 and some of the important evidence
relating to the nature and value of the services, would
have to come from plaintiff and his Wisconsin records.
The latter fact, if no other, makes a contract for
services different from a contract for the sale of goods
from the standpoint of what the Wisconsin court called
the “balancing of inconveniences,” see 48 Wis.2d at 67,
179 N.W.2d at 879. Notwithstanding ali this, we
recognize the possibility, if not the likelihood, that that
court would reach the same conclusion in a case such as
the one before us.‘ It is our duty, in any event, to decide
the due process issue for ourselves.
Lakeside relies upon the following provisions of the
Wisconsin long-arm statute, Wis. Stat. § 801.05:
A Court of this state having jurisdiction of the
subject matter has jurisdiction over a person served
in an action pursuant to § 801.11 under any of the
following circumstances...
(5)... In any action which: |
(a) Arises out of a promise, made anywhere to
the plaintiff or to some third party for the
plaintiffs benefit, by the defendant to perform
services within this state or to pay for services to
be performed in this state by the plaintiff; or
(b) Arises out of services actually performed for
the plaintiff by the defendant within this state, or
services actually performed for the defendant by
3 As we discuss infra, this subsection is not ap licable in the
case at bar because it pertains to services rather than the
manufacture of goods.
‘ The court distinguished this court's decision in Orton v.
Woods Oil & Gas Co., 249 F.2d 198 (1957), also a eee
services case, but obviously disagreed with its due process
holding, stating that the decision antedated liberalizin
dev ts in long-arm jurisdiction. 48 Wis.2d at 68-70, 17
N.W.2d at 879-880. The dissenting judge in Zerbel believed
that the Wisconsin Supreme Court's decision would govern a
ous such as the one at bar. 48 Wis.2d at 71, 179 N.W.2d at
6 No. 78-1614
the plaintiff within this state if such performance
within this state was authorized or ratified by the
defendant; or
(d) Relates to goods, documents of title, or other
things of value shipped from this state by the
plaintiff to the defendant on his order or
direction; ...
Subsections (a) and (b) are obviously inapplicable
because they deal with services. In the case at the
contract was for the sale of goods, not the rendering of
services. Subsection (d), on its face, covers this case, but
is subject to the due process limitation, as noted earlier.
The out-of-state defendant’s contact with Wisconsin
urged to be sufficient to satisfy the due process
“minimum contacts” test of International Shoe v. Wash-
ington, 326 U.S. 310 (1945), is the ordering of goods
from a Wisconsin company with knowledge that they were
likely to be manufactured in Wisconsin and shipped
from there. Also mentioned but less emphasized is
Mountain State’s use of the mail and telephone to
communicate with Lakeside in Wisconsin during the
negotiation and performance of the contract, and the
al acceptance in Wisconsin of the purchase order,
which Lakeside in fact modified and returned to
Mountain State in West Virginia.
International Shoe, supra, 326 U.S. at 316, holding
that due process requires only that the defendant have
such “minimum contacts” with the forum state as will
make the assertion of jurisdiction over him consistent
with “traditional concepts of fair play and substantial
justice,” provides the relevant doctrine but not much
assistance in solving the specific = resented b
this case. McGee v. International Life Ins. Co., 365 U.S.
220 (1967), the next decision of the Court in this area,
offers little guidance in the situation before us because
that decision was based in substantial part on the
No. 78-1614 7
special nature of the business of insurance* and must be
read in conjunction with the subsequent decision in
Hanson v, Denckla, 357 U.S. 235 (1968).* The latter opinion
does provide helpful amplification of the /nternational
doctrine. There the Court said,
The unilateral activity of those who claim some
relationship with a nonresident defendant cannot
satisfy the requirement of contact with the forum
State. The application of that rule will vary with
the quality and nature of the defendant's activity,
but it is essential in each case that there be some
act by which the defendant purposefully avails
itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and
projectors of its laws. [Citing In } Shoe
357 U.S. at 253.
The continuing force of this pronouncement in Hanson
v. was confirmed in Shaffer v. Heitner, 433 U.S.
186 (1977), in which the principles of International Shoe
were held to govern assertion by a state of in rem’ as
& The Court’s analysis of the relevant contacts reads as
follows:
The contract was delivered in California, the premiums
were mailed from there and the insured was a resident of
that State when he died. It cannot be denied that
California has a manifest interest in providing effective
means of redress for its residents when their insurers
refuse to pay claims. These residents would be at a severe
disadvantage if they were forced to follow the insurance
company to a distant State in order to hold it legally
accountable. When claims were small or moderate in-
dividual claimants frequently could not afford the cost of
ng an action in a foreign forum—thus in effect
= ng the oqmener judgmen pagel | onc oe uae!
w inqeses— es re on com 3 defense of suicide—
will be found in the insured's Jocality.
365 U.S. at 223.
* In Hanson the Court characterized McGee as being a case
in which the out-of-state defendant “en in an activity
that the State treats as exceptional subjects to special
regulation.” 367 U.S. at 261. But see Zerbel v. Federman &
Co., supra, 48 Wis.2d at 61-62, 179 N.W.2d at 876-877.
' See 433 U.S. at 199 & n.17.
8 No. 78-1614
well as in personam jurisdiction. In the course of
reaching that result, the Court examined /nternational
Shoe in some detail and then said,
Thus, the relationship among the defendant, the
forum, and the litigation, rather than the mutually
exclusive sovereignty of the States on which the
rules of Pennoyer [v. Neff, 956 U.S. 714 (1878)] rest,
became the central concern of the inquiry into
personal jurisdiction.
Id, at 204. After extending the International Shoe test
thus epitomized to in rem jurisdiction, the Court in
Shaffer applied that test to preclude Delaware's exercise
of tn rem jurisdiction to sequester shares of stock and
stock options of officers and directors of a Delaware
co on. The Court held that “the statutory presence
of [defendants’) property,” consisting of shares and
options, in the forum state was insufficient to satisfy the
test when that property was neither the subject matter
of the litigation nor related to the underlying cause of
action. /d: at 213. The Court also held, as an alternative
ground for rejecting the argument that jurisdiction was
supported by Delaware's interest in supervising the
management of a Delaware corporation, that this
argument failed “to demonstrate that Delaware is a fair
forum for this litigation.” Jd. at 214-215. In addition, the
Court rejected the argument that the defendants per-
formed acts required by Hanson v. Denckla” by
accepting positions as officers or directors of the
corporation and thereby receiving substantial benefits
provided by Delaware law. In so doing, the Court quoted
and applied the Hanson standard, that whether a state
may assert jurisdiction depends upon whether the
defendant “purposefully avails itself of the privilege of
conducting activities within the forum State.” /d. at 216.8
That standard governs the case at bar.
The principal contact relied upon here as a basis for
jurisdiction is performance of contractual obligations by
® compar Foster, Long-Arm Jurisdiction in Federal Courts,
1969 Wis. L. Rev. 9, 33 (quoted in Zerbel v. Federman & Co.,
supra, 48 Wis. 2d at 61, 179 N.W.2d at 876), stating that this
statement in Hanson “is probably too sweeping.”
No. 78-1614
the plaintiff, not the defendant, in the
First, Seventh, and Tenth Circuits ha
not sufficient, by itself, to confer juyisdiction over an
contract does not
| supra, 249 F.2d at 202
Cf. Galgay v. Bulletin Co., 504 F.2d 1062 (2d Cir. 1974
(involving contract for B nary in which the Second
ant was not Sg ecamg © pay Fae
or
with due process. see ines-Wittnauer Watch Co. v.
fae 2 ine at nce bk ce cave
, nom. ng v. ’
a0 Us 905 (1966). The Eighth Circuit has reached the
opposite conclusion, relying on the plaintiff's perform-
ance in the forum state and other “contacts” that would
be present in almost any interstate transaction. Electro-
Craft re. v. Maxwell Electronics Corp., 417 F.2d 365
ns: Cir. 1969) (involving a contract for ); contra,
cQuay Inc. v. Samuel S-hlosberg Inc., 321 F.Supp. 902,
906 (D. Minn. 1971) (involving a contract for goods).°
* District court decisions which hold that the assertion of
{eriedietien is improper under these circumstances include
& Beitman Management Corp., 457
essel Co. v. Youles {
F.Supp. 939 a Pty /- - “Wis: 19TS) Develo:
upp. -D.
mot Deion tne. v, Zaha F Supp. 783 (S.D.N.Y.
States . Camden
Doiek 365 F Supp. 847 (N-Dill. 1973); Balistrieri v.
(Footnote continued on following page)
10 No. 78-1614
The Restatement (Second) of Conflict of Laws § 50
(1971) states as follows:
A state has power to exercise judicial jurisdiction
over a foreign corporation which causes effects in
the state ow an act done elsewhere with respect to
any cause of action arising from these effects unless
the nature of these effects and of the corporation's
relationship to the state makes the exercise of such
jurisdiction unreasonable.
Section 50 is identical to § 37 of the Restatement, except
that the words “a foreign corporation” are substituted
for the words “an a Ngee % ake the agp to diag FY
are applicable to § 50. 50,
Comment a. Comment a to me? 37 states Fe states thet het an out-
of-state “act may not have been done with the intention
of causing effects in the State but could reasonably have
been expected to do so,” the state’s power to
exercise judicial jurisdiction . . . depends upon a
variety of factors, including ‘the extent of the
relationship of the state to the defendant and to the
plaintiff, the nature and quality of the effects
resulting from the act, and the d of incon-
venience which would result to the defendant from
being forced to stand suit in the state on the
particular cause of action.
continued
O'Fa 324 F. gg Nat 1D.’ .D, Wis. 1971); McQuay Inc. v.
Samuel . 902 (D, wg 1971);
Geneva Industries, Inc. Fonciaas , 312
| Eig Son (N.D.IIL. 1970), Oswalt Industries, Inc. v. ilmore,
Kan. 1969). District court oe
Su
reachin the eons concas tee include Fede OOF See eos
Wa 1973); fH fe Wagner a Quadeatee_ 853 F Supp. . 810 E D:
Wis, 1971); empson Timber C Lake Minerals
& Chemicals Corp., 296 F.Supp. 243 (D. Ore. 1969).
indemiak Tae g downer Gah v3 Cal Ppa 28 Bat, 107 Cal
u OU
Rptr. 237 (6th Dist. "ISTS) and re, 9 Utah 2d
250, 342 P.2d 871 (1969) with Colony ren, Inc. v. Fleeman,
17 ft App.3d 14, 308 N.E2d 78 (1st Dist. 1974).
No. 78-1614 11
The appropriateness of exercising jurisdiction over the
nonresident defendant increases, says the comment, in
proportion to “the defendant’s relationship to the state,”
which is important because of “considerations of fairness
to the defendant,”'® and “because the more closely the
defendant is related to the state, the greater is the
interest of the state in him and consequently the more
appropriate it wili be, from the standpoint of the best
interests of international and interstate systems, that the
state should be in a position to try the case against the
defendant in its courts.” Jd. Thus, the comment states,
when the defendant has other substantial contacts with
the forum state in addition to the transaction in issue, an
exercise of jurisdiction is more reasonable than it would
be in their absence. “The plaintiffs relationship to the
state is also material.” The other significant factor
mentioned is the nature and quality of the effects that
“could have been anticipated to occur, and... . did
occur, in the state.” If those effects “are not of a sort
highly dangerous to persons or things, the question
whether the state may exercise jurisdiction over the
defendant is likely to depend at least in ang upon
planed the defendant has other relationships to the
state.
'@ Described in this comment as primarily a matter of
convenience, but elsewhere recognized to be a part of the “fair
play and substantial justice” requirement that limits judicial
jurisdiction to situations in which it “is fair and just” to
exercise it. (Second) of Conflict of Laws § 24,
Comment 6 (1971).
‘' The forum state has a greater interest in protecting its
citizens by providing a local forum in cases which involve
effects “of a sort hi =f dangerous to ns and things,”
supra, Comment a. These would normally
be product liability or other tort cases. E.g. Grey v, American
Radiator & Standard Sanitary . 22 Id 432, 176
N.E.2d 761 (1961). The forum state has a lesser interest in
protecting a cor ion in an interstate contract dispute
especially when corporation left the state to solicit and
secure contract, because the effects of a commercial
contract are unlikely to involve danger to persons or things
within the state’s borders.
12 No. 78-1614
Applying these criteria to the case at bar, we note at
the outset that Lakeside’s cause of action is not one
entirely “arising from these [in-state] effects,” in the
words of § 50 of the Restatement. It arises in part at
least from events that occurred in West Virginia and
Virginia.
More important from the standpoint of the Restate-
ment analysis, in view of the fact that the events in
isconsin were not “of a sort highly dangerous to
persons or things,” is the complete absence of “other
relationships” between Mountain State and Wisconsin. It
is the presence or absence of these other relationships
upon which the state’s right to “exercise jurisdiction
over the defendant is likely to depend at least in part.”
Restatement, supra, § 37, Comment a.
When only the plaintiff has relationships to the forum
state and the parties are business corporations engaged
in « commercial contract dispute, another important
faclor comes into Play, one which the Restatement
comment calls “the t interests of the international
and interstate systems.” This factor is based on the
proposition that “[a] state should not improperly im-
pinge upon the interests of other states by trying in its
courts a case with which it has no adequate relation-
ship.”!2 Restatement, supra, § 24, Comment b.
Viewed realistically, the contacts with Wisconsin in
this case consist solely of “(t]he unilateral activity of
2 Even the forum state, according to the First Circuit, has
an “interest . . . in not discouraging foreign purchasers from
dealing with resident sellers for fear of having to e > in
litigation in distant courts .. .. ” Whittaker . v. United
Aircraft Corp., supra, 482 F.2d at 10865, citing Fourth
Northwestern National Bank of Minneapolis v. Hilson In-
dustries, Inc, 264 Minn. 110, 117 N.W.2d 732, 736 ane
Conn v. Whitmore, supra, 9 Utah 2d 250, 342 P.2d 871, 874-
875. Whether to prefer this interest of the forum state over
others is a policy decision for that state to make, but the
ibility of discouraging interstate transactions underscores
potential for unfairness in asserting jurisdiction over an
out-of-state defendant who has no relationship with the forum
— i gem than some of the effects of a contract he has
en into.
No. 78-1614 : 13
[one] who claim{s] some relationship with a nonresident
defendant,” and this “cannot satisfy the requirement of
contact with the forum State.” Hanson v. Denckla,
supra, 357 U.S. at 253. Although Mountain State in a
- sense caused the activity in Wisconsin by placing the
order, the contract between the parties left eside in
absolute control over where it would conduct that
activity and it made this decision and conducted the
activity unilaterally."* Mountain State’s belief, which we
may assume existed, that Lakeside would choose to
perform its contractual obligations in Wisconsin does not
constitute an invocation of the benefits and protections
of Wisconsin’s laws; Mountain State did not “purpose-
fully avail itself of the privilege of conducting activities
within the forum state, thus invoking the benefits and
protections of its laws.” Id.; cf. Shaffer v. Heitner, supra,
433 U.S. at 216. Therefore the courts of Wisconsin no
more had jurisdiction over Mountain State than would
the courts of England or Taiwan if Lakeside had chosen
to have the goods manufactured in either of those places.
In reaching this conclusion we have not overlooked the
other facts to which Lakeside refers in attempting to
strengthen its argument in support of the district court’s
exercise of jurisdiction. That the contract specified
“F.0.B. Sellers Plant Milwaukee Wisconsin” does not
establish that the contract required Lakeside to perform
its contractual obligations at its Wisconsin plant and
does not itself create a contact sufficient to justify the
challenged assertion of jurisdiction, especially when
3 We ores no opinion on whether the result would be
different if the contract required the plaintiff to perform in
the forum state or if the nature of the plaintiffs contractual
obligations made performance in the forum state necessary.
“4 a pr Inc. v. Bernard Sirotta Co., 344 F.2d 583 (2d
Cir. 1965), the court, while minimizin jurisdictional
significance of communication over the telephone and through
the mail and of the t that a contract be i
in accordance with m state law, found significant the
contract clause requiring shipment F.0.B the forum state. At
least one other fact, which has no counterpart in the case at
bar, was considered significant, viz, that the nonresident
(Footnote continued on following page)
14 No. 78-1614
considered with the words immediately following, “with
freight allowed to rail siding nearest project site.” The
fact that Wisconsin’s courts would be available to
Mountain State in a suit on the contract does not
constitute a meaningful relationship between that com-
pany and that state. If Lakeside had conducted no
activities related to the contract in Wisconsin, the courts
of that state would nonetheless have had jurisdiction
over a suit brought — Lakeside by Mountain State,
as would the courts of any other state in which Lakeside
was doing business. See Restatement. supra, § 47(2). Use
of the interstate telephone and mail service to com-
municate with a Wisconsin plaintiff, if constituting
contacts supporting jurisdiction, would give juris-
diction to any state into which communications were
directed. The sending of the purchase order to Wis-
consin does not significantly jurisdiction, especially
when it was modified by Lakeside and eventually
accepted as modified in West Virginia through Moun-
tain State’s 7% genet In any event, formalities of
contract execution are not determinative for Pad ey tr)
rere See Restatement, supra, at 106-107, 150-151.
inally, the dollar amount of the transaction can hardly
be a principled basis for distinguishing between one
case and another, let alone for ignoring the requirement,
stated in Hanson and reiterated in Shaffer, that the
defendant, not the plaintiff, conduct activities in the
forum state.
4
continued
defendant owned or leased the trucks that tra the
goods. To the extent that the Agrasheil decision rel eave
on the contact created by the F.0.B. term, we disagree. If
“[tfhe law relating to the pomane of risk in the sale and
carriage of goods ... is directly relevant to the policies
governing personal jurisdiction over rg es a corporations,” id.
we question at least the weight to be given that factor.
presence of goods on which the defendant bears the risk
of loss is a sufficient contact to give that state
aan a be tag defendant, as the Te eo hep seems
suggest, at 588-589, any state through w goods
in transit could exercise jurisdiction over the defendant.
:
uc
No. 78-1614 15
Mountain State’s motion for dismissal or transfer on
the Bae that the court lacked jurisdiction was well
founded. The judgment is reversed, and the case is
remanded with directions to vacate the judgment and
either to dismiss the case or to transfer it to another
district in which it might have been brought.
A true Copy:
Teste:
USCA 4412—Midwest Law I’rinting Co., Inc., Chicago—4-30-79—300
-16-
Opinion by Judge Tone
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
April 30, 1979
Before
Hon. WILBUR F. PELL, JR., Circuit Judge
Hon. PHILIP W. TONE, Circuit Judge
Hon. GEORGE N. LEIGHTON, District Judge*
LAKESIDE BRIDGE & Appeal from the United
STEEL COMPANY, States District Court
Plaintiff-Appellee, for the Eastern District
of Wisconsin.
No. 78-1614 vs.
MOUNTAIN STATE CON- No. 73-C-649
STRUCTION COMPANY, INC.
Defendant-Appellant. John W. Reynolds, Judge
This cause came on to be heard on the transcript of the
record from the United States District Court for the Eastern
District of Wisconsin, and was argued by counsel.
On consideration whereof, it is ordered and adjudged by
this court that the judgment of the said District Court in this
cause appealed from be, and the same is hereby, REVERSED
and REMANDED, with costs, in accordance with the opinion
of this court filed this date.
* The Honorable George N. Leighton, District Judge of
the United States District Court for the Northern District of II-
linois, is sitting by designation.
-17-
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
June 8, 1979
Before
Hon. WILBUR F. PELL, JR., Circuit Judge
Hon. PHILIP W. TONE, Circuit Judge
Hon. GEORGE N. LEIGHTON, District Judge*
LAKESIDE BRIDGE &
STEEL COMPANY Appeal from the United
Plaintiff-Appellee, States District Court for
the Eastern District of
No. 78-1614 vs.
MOUNTAIN STATE No. 73-C-649
CONSTRUCTION CO., INC.
Defendant-Appellant. John W. Reynolds, Judge
ORDER
On consideration of the petition for rehearing and sugges-
tion for rehearing in banc filed in the above-entitled cause by
plaintiff-appellee, no judge in active service has requested a vote
thereon, and all of the judges on the original panel have voted
to deny a rehearing. Accordingly,
IT IS ORDERED that the aforesaid petition for rehearing
be, and the same is hereby, DENIED.
* The Honorable George N. Leighton, District Judge of the
United States District Court for the Northern District of II-
linois, sitting by designation.
-18-
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF WISCONSIN
LAKESIDE BRIDGE & STEEL CoO.,
Plaintiff,
ORDER
vs.
CIVIL ACTION
MOUNTAIN STATE CONSTRUCTION NO. 73-C-649
COMPANY,
Defendant.
The defendant in the above captioned action having moved
the Court to dismiss or transfer the action; and the plaintiff in
the above captioned action having moved the court to advance
on its Inventory of Cases Pending Decision defendant’s Motion
to Dismiss or Transfer; and both motions having come on for
hearing before the court on September 6, 1974; and the parties
appearing by their attorneys Elwin J. Zarwell and Christopher
N. Knight of Quarles & Brady for the plaintiff and Ward Dun-
phy of Kluwin, Dunphy, Hankin & McNulty for the defendant;
and the Court having reviewed the pleadings, affidavits and
briefs, and being duly advised in the premises.
NOW, THEREFORE, IT IS HEREBY ORDERED:
That plaintiff’s Motion to advance on the Court’s Inven-
tory of Cases Pending Decision defendant’s Motion to Dismiss
or Transfer be and the same is hereby granted.
«
~—<
/ -19-
That defendant’s Motion to Dismiss or Transfer be and the
same hereby is denied in all respects.
That costs, if any, be held in abatement until final deter-
mination of this action.
Dated this 8th day of September, 1974.
BY THE COURT:
/s/ John W. Reynolds
JOHN W. REYNOLDS
Chief Judge
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.