Petition — Jadair, Inc. v. Walt Keeler Co.

Supreme Court brief1982

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83-330

IN THE | CLERK

SUPREME COURT OF THE UNITED s

October Term, 1981

JADAIR, INC.,

Petitioner,

THE WALT KEELER COMPANY, INC.,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

LAURENCE C. HAMMOND, JR.

(Counsel of Record)

ROSS R. KINNEY

MARK E. pesowenes

QUARLES & BRADY

780 North Water Street

Milwaukee, Wisconsin 53202

414/277-5000

QUESTION PRESENTED

1. Would it be a denial of Due

Process for the federal court sitting in

Wisconsin to exercise personal jurisdic-

tion pursuant to Wisconsin's Long Arm

statute over respondent The Walt Keeler

Company, Inc. ("Keeler") where, inter

alia (1) Keeler entered into a contract

purchasing a piece of complicated machin-

ery of substantial value from petitioner

Jadair, Inc. ("Jadair"), a Wisconsin

seller-manufacturer, and this action

arises out of such contract, (2) Keeler

was told by Jadair that the unit would be

manufactured in Wisconsin, (3) Keeler

prior to contracting knew that the unit

necessarily had to be manufactured in

Wisconsin, the location of Jadair's only

manufacturing facility, and it was manu-

factured in and shipped from Wisconsin by

Jadair F.0.B. Jadair's Wisconsin plant,

(4) Keeler has had an ongoing relationship

with Jadair involving one overall continu-

ing business transaction in which Jadair,

pursuant to Keeler's orders, also subse-

quently shipped various component parts

from Wisconsin to be used by Keeler in

repair-maintenance of the complicated

machinery, and (5) Keeler had numerous

interstate mail and telephone contacts

with Jadair as an integral part of Keeler's

ongoing business dealings with Jadair?

TABLE OF CONTENTS

Opinions Below .......eeeececes

JUPISGICTION ...... cc ceceeeeees

Statutory Provisions Involved..

Statement of the Case .........

Reasons for Granting

Te SOR. bab ne cabede 6a ebeoooes

I. THIS CASE CONTAINS A

UNIQUE AND UNDISPUTED

FACTUAL VEHICLE THAT

SHARPLY FOCUSES THE

IMPORTANT, CONSTANTLY

RECURRING, AND AS YET

UNRESOLVED DUE PROCESS

ISSUE GOVERNING THE OUTER

LIMITS THAT STATE

LEGISLATURES CAN GO TO

IN ENACTING LONG ARM

STATUTES EXTENDING

JURISDICTIONAL POWER TO

BOTH FEDERAL AND STATE

COURTS IN CASES INVOLVING

II. THE DECISION BELOW IS IN

CONFLICT WITH A HOST OF

FEDERAL AND STATE

DECISIONS, INCLUDING THOSE

OF THE WISCONSIN SUPREME

COURT AND ALSO OTHER

SEVENTH CIRCUIT

DECISIONS .....55 sevveees

> Nn N WN

A. General Circuit

Court Conflicts ......

B. Conflicts Between

Federal and State

Courts Sitting in

the Forum State ......

Cc. Conflicts Within the

Seventh Circuit and

Emergence of the

Erroneous Physical

Presence and/or

Multiple Transactions

Requirement .........

ITI. THE DECISION BELOW IS IN

IRRECONCILABLE CONFLICT

WITH THE RATIONALES

EMBRACED BY THIS COUKT

AND TTS PROGENY =...

SE |b a n'c00 oe Cobb wees oe d26

TABLE OF AUTHORITIES

Cases Page

feck Inc. 1972), cert. denied,

411 U.S. 966 (1973) ..........- 23

30,34,35

ir.), ' * ,

405 U.S. 104i eh acevo eee we 32-33

EB 4-8 x: mE zr ng C3.

ee REO! 6 6 One 06. Fee h obec ce 26

18-19

ae ELD Dees OE CoN Ow 006 b e060 45,47-50

ae .2d

Py. See + cnetadends 19-22,25

iii

yen Bey “5 0.8. 914 a

15,17

14,26,27

29-32, 3

37,42-

10,42,55

15,17

22,26,27,

32,34,39-

41,46

23-24

s. ; “W.2d

872 (1970), dismissed,

402 U.S. 902 { Pie on6 6 6 os

Statutes

Wis. Stat. Section 801.05 .....

28 U.S.C. Section 1254 (1)

28 U.S.C. Section 1332

9,30,31,

54-56

9,46

48-49

42-44

No.

IN THE

SUPR’.ME COURT OF THE UNITED STATES

October Term, 1981

JADAIR, INC.,

Petitioner,

THE WALT KEELER COMPANY, INC.,

Respondent

On Writ of Certiorari

to the United States Court of Appeals

For the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Jadair, Inc.*

("Jadair") respectfully prays that a

Writ of Certicrari issue to review the

judgment and opinion of th. United

*Pursuant to Supreme Court

Rule 28.1, Jadair states that it has

only one relationship falling within

the ambit of this rule, to-wit: a

subsidiary named Eco-Tec, Inc.

States Court of Appeals for the Seventh

Circuit entered in this proceeding.

OPINION BELOW

The opinion of the Court of

Appeals is reported at 679 F.2d 131 and

the opinion rendered by the District

Court for the Eastern District of Wisconsin

is reportec at 506 F. Supp. 879. Both

also appear in the Appendix.

JURISDICTION

The judgment below was entered

on May 26, 1982. This Petition for

Certiorari was filed within ninety (90)

days of that date. This Court's juris-

diction is invoked under 28 U.S.C.

Section 1254(1).

STATUTORY PROVISIONS INVOLVED

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 action 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

services 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

* * *

(ad) Relates to goods, docu-

ments 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 a

declaratory judgment that Jadair is not

indebted to Keeler in any way via a vis

the difficulties that Keeler has experi-

enced with the Redi-Wash unit and

auxiliary equipment it purchased from

Jadair. It originally was brought by

Jadair in the Circuit Court for Milwaukee

County, State of Wisconsin. Keeler

removed the action to the United States

District Court for the Eastern District

of Wisconsin, which court granted

jurisdiction under 28 U.S.C. Section 1332

because of diversity of citizenship. The

District Court denied Jadair's motion to

remand because the amount in controversy

did not exceed $10,000 and dismissed the

-4-

action for lack of personal jurisdiction

over Keeler. The material jurisdictional

facts are undisputed.

Jadair is a Wisconsin corporation

that manufactures Redi-Wash machines and

equipment at its plant in Port Washington,

Wisconsin. Redi-Wash is the tradename

for large complicated machines designed

for cleaning out mechanical cement mixer

trucks. Such machines are only specially

manufactured pursuant to customers’

orders. Keeler is a Kansas corporation

involved in the business of producing,

delivery and selling concrete and other

building materials in Wichita, Kansas.

In February of 1977, Jadair's Vice

President for Marketing and Sales, Kenneth

Rust, met in Kansas with Keeler's Presi-

dent, Earl Callison, for the purpose of

discussing Jadair equipment that Keeler

might be interested in purchasing. Mr.

Rust gave his standard sales presentation

in which he described the history and

development of Jadair and its facilities

and location in Port Washington, Wisconsin.

Mr. Rust told Mr. Callison that Jadair's

equipment is manufactured at its facil-

ities in Port Washington.

Jadair's sales manager, William

Sarring, also met in Kansas with Keeler's

President, Earl Callison, on Octcber 25,

1978, to discuss the possible sale of a

Redi-Wash machine to Keeler. During this

meeting, Mr. Sarring informed Mr. Callison

that if Keeler purchased the unit it

would be produced at and shipped from

Jadair's facility in Port Washington,

Wisconsin. This is, and always has been,

Jadair's only facility for the manufacture

of its products which are sold within the

United States. Mr. Callison was informed

that Port Washington, Wisconsin, was the

only place where the Redi-Wash unit could

be built.

On November 1, 1978 the parties

entered into a contract for the sale and

purchase of a Redi-Wash machine. It

provided for shipment F.0.B. Jadair's

Port Washington, Wisconsin plant. The

total purchase price was $75,850. The

contract did not expressly require Jadair

to manufacture the equipment in or ship

it from Wisconsin. In addition to its

initial purchase of the Redi-Wash Unit,

Keeler subsequently has engaged in numerous

(over a dozen) related sub-transactions

involving component parts to be used in

the repair-maintenance of the complicated

Redi-Wash machine being shipped from

Jadair to Keeler pursuant to Keeler's

orders. Further, there were a host of

interstate "contacts" (e.g., telephone

calls, correspondence, invoices) between

Jadair and Keeler reflecting their ongoing

business relationship. However, Keeler's

representatives never physically came to

Wisconsin and Keeler's only "contacts"

with Wisconsin were involved in this one

overall ongoing business transaction.

REASONS FOR GRANTING THE WRIT

#5) ANL

NDISPUTED | ACTUAL VEI qTCL | THA’

IHARPLY FOCUSES THE IMPORTAN:

SONSTAN; (LY RECURRING, AND AS YE"

INRESOLVED DUE PROCESS ISSUI

SOV’ IRNING THE OUTER LIMITS THA

BAAS ma CESLATIN gS MN

INACTING LON

L_AND STAT COURTS IN CASI is INVOE

arte NOE oss ae NIERSTAT

Jurisdictional issues arising out of

such common business relationships (e.g.,

single "transactions" involving contacts

to manufacture and sell custom made goods)

voluntarily and knowingly entered into

interstate between corporate business

enterprises, have been regularly reaching

the courts for many years. Existing

conflicts, confusion, inconsistency and

uncertainty of result doubtlessly means

that this litigation flow will continue

unabated until this Court grants

certiorari in a case such as this one.

The conflicting holdings and ratio-

nales gleaned by lower courts from exist-

ing Due Process jurisdictional precedent

-8-

of this Court are so severe and wide-

spread that they exacerbate the custom-

ary predictive difficulties posed by

the necessary amorphousness of the Due

Process guarantee. The present situation

is so unpalatable that responsible jurists

and commentators have even gone to the

extent of raising the question whether or

not this Court should adopt a completely

different set of more detailed standards,

at least to govern this type of Due

Process issue.* It must be said that

viewing our federal and state courts as a

single system of justice, neither judges,

attorneys, nor parties can know short of

protracted litigation what Due Process

mandates in cases involving such common

commercial transactions.

Subsequent to International Shoe v.

Washington, 326 U.S. 310 (1945), this

Court has never decided whether or under

what circumstances a single consensual

interstate commercial transaction out of

which a suit arises--other than an

insurance contract (assuming McGee v.

International Life Inurance Co., 355 U.S.

220 (1958), is to be so iimited)--having

substantial interstate "contacts" with

the forum state, is sufficient to satisfy

Due Process. The time is ripe for this

Court to mark definitive guidelines in

the application of International Shoe and

its progeny in such common commercial

contexts.

The recent vintage of many of the

decisions discussed or cited herein

evidence a widening, not a narrowing, of

the chasms among the courts on this

issue. On substantially indistinguishable

facts, the holdings, as well as the

underlying rationales, vary from circuit

-10-

to circuit, from state to state, between

different district court judges and

appellate panels within given circuits

and between federal and state courts

sitting in the same state. This results

from the litigative verity that the Due

Process jurisdictional decisions handed

down by this Court subsequent to

International Shoe do not yield reasor-

ably clear guidance because they dealt

with markedly different factual situa-

tions posing Due Process issues with

markedly different “fairness” considera-

tions.

This is a classic case illustrating

the litigation flow that certain already

greatly overburdened federal district

courts are reaping pursuant to defendants’

accurate perceptions that the Due Process

jurisdictional mandate is stricter in

some Circuit's federal courts than in the

state courts located therein. This also

-ll-

ais

is an important issue meriting resolu-

tion by this Court because there is a

very substantial line of cases typified

by the decision below, in which Federal

Courts are not only barring the exercise

of jurisdiction, but in doing so are

overriding the expressed will of various

state legislatures by essentially holding

that their respective Long Arm statutes

are unconstitutional.

Because of certain unique undisputed

factual elements, this case presents a

well nigh perfect vehicle for this Court

to resolve this omni-present and impor-

tant Due Process issue. The contract

here had no term expressly "requiring"

manufacture in Wisconsin. However, as

the District Court held, the nature of

the contractual obligations Keeler

intentionally entered into rendered

performance in Wisconsin “inevitable”

although not "necessary." Further,

Keeler was expressly told where the goods

elge

were to be manufactured. Not only did

Jadair nowise have complete control ina

practical sense over where to perform,

but Keeler was fully aware (i.e., had

knowledge) that performance in Wisconsin

was not only intended, but was in a

practical sense necessary. Moreover,

Jadair did perform the contract (i.e.,

specially design and manufacture the

unit, and ship it) in Wisconsin. There

was not merely one isolated "single act”

involving Jadair and Keeler, but rather

an on-going interstate business relation-

ship, involving numerous interstate

"contacts" and sub-transactions occurring

in the context of one overall commercial

transaction. Finally, Wisconsin has a

very specific and far reaching Long Arm

statute that unequivocally poses the

issue whether it violates the Due Process

guarantee.

-13-

DECISION “HOST OF CLUDING

WISCONSIN SUPREME COt cae zoo

OTHER SEVENTH CIRCUIT DECISIONS.

The deep, fundamental, and widespread

divisions among various federal and state

courts vis a vis this type of issue is

only too well documented, and the cases

involved therein are ever increasing.

See, e.g., Lakeside Bridge & Steel Ce. v.

Sta ° , a2

597 F.2d 596, 601-03 (7th Cir. 1979) (held

no jurisdiction), cert. denied, 445 U.S.

907 (1980) (opinion of Justices White and

Powell dissenting). This disarray fur-

nishes a fertile ground for law review

commentators, but may well have a dis-

ruptive effect on commercial relations.

Further, it indisputably prompts a very

substantial quantum of litigation on this

issue, much of which is being channeled

into overburdened federal courts as a

result of defendants such as Keeler

removing cases from state courts to

-14-

federal courts in order to obtain a more

favorable forum for resolution of this

Due Process issue.

The above verities are underlined

by the following conflicting decisions

dealing with this basic Due Process

issue as to which there were recent

denials of certiorari, to-wit:

Mouzavires v. Baxter, 434 A.2d 988 (D.C.

Cir. 1981) (jurisdiction upheld), cert.

denied, _—Ss«sU.S. ~__, ~- 102 S. Ct. 1643

(1982) (Justices White and Powell

dissenting); Iowa Electric Light & Power

Co. v. Atlas Corp., 603 F.2d 301, (8th

Cir. 1979) (jurisdiction denied), cert.

denied, 445 U.S. 911 (1980) (Justices White,

Powell and Blackmun dissenting);

s k _ v. Chelsea

House Publishers, 621 S$.W.2d 560 (Tenn.

1981) (jurisdiction upheld), cert. denied,

__. ~*U-S.___, 102 S.Ct. 1623 (1982) (The

Chief Justice, along with Justices White

and Powell dissenting).

-15-

This lack of clear guidance by this

Court on this basic Due Process issue

results not only in a steady flow of

petitions such as this one, but also

patently conflicting holdings and/or

rationales among various circuits, and

ostensible conflicts between cases decided

by different panels within the same circuit.

The situation poses well nigh insurmountable

difficulties for federal district court

judges* resolving such issues in the first

instance. From litigants’ attorneys’

point of view, there is no way to predict

with any reasonable certainty how given

close Due Process issues will be ulti-

mately decided and hence there always is

a ready incentive for both sides to

litigate the issue at the appellate

level.

Witness the perceptive comments

of the District Court below punctuated

by terms such as “enigmatic”, "retrench-

ment", “cast doubt", and “further

muddled".

-16-

A. General Circuit Court Conflicts

Recent developments in this country

outside the Seventh Circuit demonstrate

not only the existence of the afore-

mentioned conflict of holdings and ration-

ales, but also the litigative reality

that the existent Due Process jurisdic-

tional decisions of this Court do not

yield sufficiently precise guidelines

vis a vis the proper manner in which such

issues should be resolved. The nature

and extent of these ever widening chasms

among the courts is typified by comparing

the very recent holdings and rationales

in (1) Nicholstone and Mouzavires to (2)

this case and Iowa Electric. Further, it

also is instructive to compare the deci-

sion below to the following very recent

decisions whose holdings and/or rationales

are in irreconcilable conflict therewith:

CleveRock Energy Corp. v. Trepel, 609

F.2d 1358, 1364-65 (10th Cir. 1979)

(payments sent to forum state and

-l17-

"reasonably could have anticipated”

plaintiff's duties under the contract

"would be largely performed” at plain-

tiff's headquarters in the forum state);

Go stries v. Ryder Scott Co.,

378 Mass. 1, 389 N.E.2d 76, 78-83 (Mass.

1979) (plaintiff's headquarters were

known to be in forum state; defendant

engaged in interstate correspondence and

telephone calls over a period of 17

months; "defendant's actual physical

presence here (in forum state) is not

required ..."; defendant's business

"contacts" were “deliberate and not

fortuitous;" the forum state has a

"legitimate interest in providing a

forum" for its corporate citizens to

litigate this controversy); Murray v.

Huggers Manufacturing, 398 So.2d 1323

(Miss. 1981) (defendant-seller knew

plaintiff-buyer located in forum state

and plaintiff performed there); Koenig v.

International Brotherhood of Boilermakers,

-18-

Local Lodge No. 5, 284 Pa. Super. 558,

426 A.2d 635, 639-644 (1980) (1 dissent;

majority reasoned that "[{a] nonresident

defendant that enters into a contract

that he knows will be substantially

performed in the forum state [by plaintiff]

should “reasonably anticipate being haled

into court in that state” if disagree-

ments develop).

The decision below also is in irrecon-

cilable conflict with a host of earlier

cases in other circuits holding that a

defendant buyer's knowledge that goods

which it ordered would be manufactured in

the forum state renders it fair in a Due

Process sense to assert personal jurisdic-

tion over that defendant even in a "single

act" (i.e., solely one contract) case --

regardless whether he was physically

present in the forum state. Consider,

for example, - t ices Corp.

v. Van Dusen Air, Inc., 466 F.2d 220,

_ 19-

226-29 (6th Cir. 1972) where the Sixth

Circuit reasoned, inter alia:

"In some cases, meeting this

requirement [that the

defendant purposefully acted

within the forum] may pose

the most difficult challenge

of all for a plaintiff ‘

seeking to establish juris-

diction over a non-resident

defendant. Here, however,

it seems clear that the

defendant acted in such a

manner. Van Dusen entered

into contract negotiations

involving a substantial

order for the manufacture of

goods with a firm which it

neces was based

in Ohio its produc-

tion facilities located

within that State." 466

F.2d at 266-67. (emphasis

added)

The Sixth Circuit, along with

numerous other courts, 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

indirect effects within the forum state

of defendant's acts physically accom-

plished outside the forum state. Id. at

229. The Seventh Circuit, as well as

-20-

a substantial number of other courts,

focuses not on such effects, but rather

on the geographical location of the

events giving rise to the in-state

effects. Accordingly the Sixth Circuit

line of cases does not require physical

presence of the defendant's represnta-

tives in the forum state, while the

Seventh Circuit line of cases does.

Further, the Seventh Circuit's current

basic approach is irreconcilable with

the Sixth Circuit conclusion that Due

Process fairness does not preclude the

assertion of jurisdiction over corporate

defendants in disputes arising out of

such commercial transactions:

"It cannot be disputed that

a state has an interest in

resolving a suit brought by

one of its residents.

[Citations 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

@2ile-

state. [Citing, ;

the Seventh Circu : s decision

in O'Hare Int einat sonal Bank

Ti77 (yeh ¢ Bea

( 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."

Id. at 232.

Many, if not most state legislatures

(including Wisconsin's) in enacting their

respective Long Arm statutes have so seen

their states’ interests and have extended

their state courts’ jurisdiction over such

defendart-buyers.

The Seventh Circuit also is in

irreconcilable conflict with the Eighth

Circuit's decision in Electro-Craft Co

v._Maxwell Electronics Corp., 417 F.2d

365, 369 (8th Cir. 1969), where it was

reasoned, inter alia:

"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 controlling.”

(Citation omitted].

In Pedi Bares, Inc. v. P & C Food

Markets, Inc., 567 F.2d 933, 937 (10th

Cir. 1967), a case with a very similar

fact situation, it was held:

"Initial (i.e. solicita-

tion) contact is not

decisive. The subsequent

conduct of P & C shows

that it purposely availed

itself of the privilege

of carrying on activities

to secure goods from a

Kansas manufacturer and

seller."

For other cases conflicting with the

decision below, see also, @.g., Product

Promotions, Inc. v. Cousteau, 495 F.2d

483 (Sth Cir. 1974); Ajax Realty -orp.

ook, Inc., 493 F.2d 818, 822

(4th Cir. 1972), cert. denied, 411 U.S.

966 (1973); Southern Machine Co. v.

Mohasco Industries, Inc., 401 F.2d 374,

382 (6th Cir. 1968); Shealy v. Challenger

-23-

Manufacturing Co., 304 F.24 102 (4th Cir.

1962).

The decision below also is in

irreconcilable conflict with numerous

decisions in other jurisdictions which

give substantial weight to buyers’ inter-

state mail and telephone "contacts" with

seller-manufacturers located in the forum

state. While such contacts are not in

themselves sufficient, they are important

factors and here they should have consti-

tuted the requisite "plus" necessary to

satisfy Due Process. Numerous such

"contacts" manifested Keeler's active

involvement in various business subtrans-

actions that were essential parts of its

on-going and necessary business relation-

ship with Jadair.*

Keeler bought a complicated piece

of machinery that required ongoing inter-

state repair-maintenance support from

Jadair in Wisconsin even after the mach-

inery was installed in Kansas. The sales

contract was however a “one shot" business

(footnote continued)

-24-

Telephone and mail communications,

allowing Keeler to avoid the expense and

time of traveling to Wisconsin, were the

means by which it reaped the benefits of

Jadair's activities in Wisconsin accom-

plished at its behest. See, e.g., In-

vices Co ration v. Van Dus

Air, Inc., supra, at 235:

"A letter or telephone

call may, in a given

situation, be an indica-

tion of substantial

involvement by the

defendant or its agents."

"The test of whether business was

transacted within the state must be

applied in the context, not of communi-

cation and transportation criteria of

yesteryears, but of modern day commercial

(footnote continued)

transaction that terminated when the

machinery was shipped. Absent con-

tinual support from Jadair, it could

not be effectively operated by Keeler

in Kansas as Jadair had unique and

necessary repair-maintenance expertise.

Hence there were numerous post-shipment

interstate "contacts" of Keeler with

Jadair in Wisconsin.

-25-

and personal accelerated relationships.”

Q'Hare International Bank v. Hampton, 437

F.2d 1173, 1177 (7th Cir. 1971).

B. r

As was candidly recognized in

Lakeside, supra, the Seventh Circuit's

Lakeside-Jadair doctrine also is in

irreconcilable conflict with the Wisconsin

Supreme Court's prevailing holdings and

rationales. See, e.g., Zerbel v. Federman

& Co., 48 Wis.2d 54, 179 N.W.2d 872,

873-74, 877-78 (1970), appeal dismissed,

402 U.S. 902 (1971); Flambeau Plastics

Corp. v. King Bee Manufacturing Co., 24

Wis.2d 459, 129 N.W.2d 237, 241 (1964).

Conflicts and murkiness within given

circuits, resulting from the lack of clear

guidance from this Court's Due Process

jurisdictional decisions, as well as the

-26-

recent emergence of what is at least

arguably a per se physical presence and/

or multiple “transactions” requirement

as to this type of Due Process issue, is

typified by the situation within the

Seventh Circuit. The decision below, as

well as Lakeside, is, at least arguably,

in conflict with other decisions rendered

by different panels.

O'Hare International Bank v. Hampton,

supra, (7th Cir. 1971), involved a suit by

the assignee of an interstate lease of an

aircraft against its guarantors. Holding

that Due Process did not bar the exercise

of jurisdiction, that panel emphasized:

"The defendants

certainly must have

contemplated the effects

in Illinois of a failure

to make the monthly

rental payment. Further-

r -*, the fact that the

g...antee wa con-

in t state clearly

demonstrates that the

defendants ‘invoked the

benefits and protection'

of the state." Id. at

-27<-

1177 (citations omitted)

(emphasis added).

The Seventh Circuit viewed the

jurisdictonal facts in United States Ry.

Equip. Co. v. Port Buron & Detroit R. Co.,

495 F.2d 1127 (7th Cir. 1974), which

irivolved an interstate lease agreement

covering four hundred railroad box cars,

as being virtually identical to those in

O'Hare, emphasizing:

"The only significant

fact present in “Bare

which is missing re is

that in 0’ the defen-

dant initia the lease

negotiations by contact-

ing plaintiff's assignor

in Illinois. In the con-

lease contemplated and in

fact produced substantial

on-going activity within

Illinois, a factor apparently

not t present Ae pet

at 1130 ( is

The rationales and holdings of the

Seventh Circuit in these two cases are,

at least ostensibly, difficult to recon-

cile with the decision below in this case

or Lakeside. Further, the rationale and

holding in this case went well beyond

Lakeside. Keeler knew in advance of con-

tracting that it was inevitable that

Jadair would perform in the forum state.

Further, there was not a "single act,”

but rather an ongoing business relation-

ship involving numerous interstate orders,

shipments, payments, telephone calls, etc.

in a repair-maintenance context. The

Seventh Circuit in so extending the

Lakeside decision exacerbated existing

uncertainties in this Circuit vis a vis

resolution of this type of Due Process

issue. The decision below, at least

arguably, conflicted with other post-

Lakeside decisions. The degree of

uncertainty and ostensible conflict is

indicated by the extent to which appelate

decisions resulted in reversals of the

district courts.

-29-

In Lakeside the Seventh Circuit

reversed the district court and dismissed

the case for want of personal jurisdic-

tion. Two subsequent decisions by differ-

ent panels of the Seventh Circuit, al-

though also involving reversals of the

district court, went the other way as it

was held there was personal jurisidiction,

to-wit: Wisconsin Electrical Mfg. Co. yv.

Pennant Products, 619 F.2d 676 (7th Cir.

1980), and Biltmoor Moving & Storage Co. v.

Shell Oil Co., 606 F.2d 202 (7th Cir.

1979) (rehearing en banc denied). These

cases, read in conjunction with Lakeside,

reveal that while there arguably may in-

deed be a razor sharp line between

offending and not offending Due Process

in exercising jurisdiction over such

commercial transactions, it is at best

very difficult for district court judges

and practicing lawyers to discern or

predict that line in a given case.

-30-

The Due Process "rule of thumb”

disclosed by this series of cases appears

to be that it is only necessary to have

the Lakeside contacts “plus” in order to

be able to constitutionally exercise

jurisdiction. Under the flexible

International Shoe doctrine, the nature

of the "plus" can and will vary from

case to case. But there is insufficient

guidance from this Court as to what will

or will not suffice, to enable one to be

able to predict litigation outcomes with

any degree of reasonable certainty.

Further, it is at least arguable that

Lakeside and Jadair boil down to a per

se physical presence requirement in all

single interstate "transaction" (not

single "act") commercial cases and/or a

per se requirement of multiple “trans-

actions."

The factual setting in Wisconsin

Electrical Manufacturing Co., supra, was

nearly identical to the factual setting

-31-

in Lakeside (e.g., "single act" case)

except that the out-of-state defendant's

agents had been physically present in

Wisconsin twice. The Seventh Circuit

held that these additional contacts were

sufficient (not necessary) to take the

case outside of the Lakeside holding.

Ironically, the very same district court

judge who was reversed in Lakeside for

holding there was jurisdiction, now was

reversed for holding that there was not

jurisdiction. 619 F.2d at 679. Further,

since the court was treading very close

to a de facto repeal of the International

Shoe doctrine that a defendant need not

be physically present in the forum State

and a return to the Pennoyer v. Neff

“presence” notions, the Seventh Circuit

cautioned:

"For the exercise of

personal jurisdiction,

the defendant need not

have been physically

present in the state, but

need only have acted

indi within the

orum state. See Fisons,

°32-

Ltd. v. United States,

458 F.2d 1241, 1250-1252

(7th Cir.), cert. denied,

40S U.S. 1041, 92 S.Ct.

1312, 31 L.Ed.2d $81

(1972)." 619 F.2d at 678,

n. 6.

The decision below is in conflict

with the above rationale and constitutes

a return to Pennoyer v. Neff via what

amounts to a per se rule requiring such

physical presence in the forum state in

single "transaction" cases. Here Keeler

in effect acted "indirectly" within

Wisconsin by entering into a contract

with Jadair--knowing it was "inevitable"

that Jadair would perform it in Wisconsin--

which caused Jadair to do certain manu-

facturing-shipping acts in performance

thereof within Wisconsin. Further, the

numerous subsequent interstate "contacts"

of Keeler with Wisconsin resulting from

its on-going commercial relationship with

with Jadair involving over a dozen repair-

maintenance sub-transactions, renders

o33@

Keeler's relationship with Wisconsin

sufficient (i.e., constitutes the "plus”)

for Due Process purposes under

International Shoe and its progeny.

The decision below also appears to

be in conflict with the Seventh Circuit's

decision in Biltmoor, supra. That was an

action for breach of contract by a company

hired to move a business to Texas. There

too only one contract was involved (i.e.,

there not an ongoing business relation-

ship). Nonetheless it was held Due

Process was not violated. Adverting to

the fact that the business was to be

moved from its location in Illinois, that

panel stated that the contract "absolutely

required" performance* within Illinois,

the forum state, and it was held that this

"the District Court below ruled

factually that since Jadair was only

located in Wisconsin, it was "inevitable",

although not "necessary" that Jadair's

performance of its contract with Keeler

would take place in Wisconsin.

-34-

fact was sufficient to take the case out-

side of Lakeside. The Seventh Circuit

added:

"Illinois courts have not

always distinguished

between situations where

the contract requires

performance in Illinois

and situations where,

although the contract is

silent, the defendant

knows in advance that

performance will take

place in Illinois. The

distinction is immaterial

in this case because this

contract absolutely

required performance in

Illinois, satisfying the

standards of both the

Illinois cases and the

language of this court in

Lakeside Bridge, 597 F.2d

at 603.13." 606 F.2d at

207 (emphasis added).

The District Court below found

factually that Keeler knew in advance

that performance by Jadair would take

place in Wisconsin. Further, under the

particular factual circumstances here,

the distinction adverted to in Biltmoor

is immaterial because the nature of the

contract rendered performance by Jadair

@3S@

in Wisconsin "inevitable" and "necessary."

The nature of Jadair's contractual obli-

gations meant that there was absolutely

only one place where performance could

eccur, to wit: Port Washington, Wisconsin.

The Redi-Wash machine which Keeler pur-

chased from Jadair is Jadair's propri-

etary design and it is simply not made

anywhere else in this country. Further,

even if this distinction is deemed to be

material in this case, under Due Process

it should be sufficient that defendant-

buyers know in advance that a sales-

manufacturing contract will be performed

in the forum state. The ultimate goal

under Due Process fairness should be a

lack of “surprise” resulting from un-

expected fortutious contacts with a

state, not technical contractual nice-

ties (e.g., whether contract's boiler-

plate expressly states seller must manu-

facture goods in a given state).

-36-

Further, the decision below is in

conflict with the rationale embraced in

yet another recent Seventh Circuit case.

The District Court below perceived the

decision in Koster v. Automark Industries,

640 F.2d 77 (7th Cir. 1981), as having

"further muddled"” the situation in this

Circuit concerning this basic Due Process

issue. However, the facts of Koster are

in no way similar to the facts of the

The District Court below errone-

ously relied on Koster as support for the

proposition that in the present case it

is not even a “significant factor" that

the defendant knew the contract would be

performed in Wisconsin. The District

Court adverting to the "single act"

decisions in Lakeside and Koster essen-

tially reasoned that Keeler’s repre-

sentatives did not come into the state

and the sales contract did not expressly

require performance in Wisconsin. The

District Court also cited Whittaker

Co ration v. United Aircraft Co ration,

482 F.2d 1079 (lst Cir. 1973) in support

of its rationale of furthering a policy

ef encouraging business transactions

between residents of different states by

barring seller-manufacturers from suing

buyers in the former's home state--despite

the Wisconsin legislature's unequivocal

political-policy decision to the contrary

in enacting Wisconsin's Long Arm statute.

a37a

present case. There, the contract had

been executed in Italy and involved the

purchase of goods manufactured in Switzer-

land. Defendant's only contacts with the

Netherlands were eight letters and possibly

a telegram or transatlantic telephone call.

The Seventh Circuit, following an Inter-

national Shoe analysis (e.g., purposeful

minimum contacts with the forum), dis-

tinguished two Illinois cases whose

holdings and relationales are in point

here and squarely mandate that Due

Process is not offended because (1)

"performance of the manufacturing contract"

was expected to occur wholly within "the

forum state” and (2) the "performance of

the contract" was carried out in Wisconsin

and Keeler's interstate "contacts" with

Jadair were "all that was necessary" for

Keeler to be able "to achieve its [business]

purposes" of having Jadair manufacture,

sell and ship certain goods to ic from

Wisconsin.

-38-

Pao

Ifl.

MBRAC! SONFLI iy Te TS COURT IN INTER-

ATIONAL SHOE AND ITS PROGENY

The decision below in effect (1)

returns to Pennoyer v. Neff, 95 U.S. 714

(1877), notions of physical presence

and technical contractual niceties which

have long since been rejected by this

Court with respect to all single inter-

state commercial "transactions" (not just

in single "act" cases) and (2) conflicts

with International Shoe and its progeny.

If Due Process cannot be satisfied in a

single interstate business "transacton”

under these particular factual circum-

stances, it never can be.

The Court of Appeals below viewed

as decisive the factors that there was

only one overall interstate "transaction"

(even though there were numerous inter-

state contracts and "contacts" involved

therein) and that Keeler representatives

had never physically come to Wisconsin in

-39-

connection with its ongoing business deal-

ings with Jadair. The single "transaction"

thesis is in conflict with this Court's

substantial and not isolated "contacts"

principle. Further, while physical pre-

sence is many times a sufficient nexus

with the forum state, it is hardly

necessary--either as a per se rule or

under the particular factual circumstances

present here. Such a physical presence

requirement constitutes a drastic retreat

from International Shoe and McGee which

ruled that interstate "contacts" can be

sufficient --even in a "single act" con-

text. It signals a return to the regime

of Pennoyer v. Neff, in which the federal

judiciary, espousing rigid mechanical legal

concepts of physical power and physical

presence, straight-jacketed the states’

attempts exercise their sovereignty by

extending their Courts’ jurisdiction over

corporate non-residents.

Long ago the Pennoyer v. Neff ration-

ale caused unjustifiable strain with

respect to the demands of justice vis a

vis an increasingly mobile, interstate,

commercial-business structure in this

country. Finally, about three decades ago

in International Shoe Co. v. Washington,

supra, this Court rejected the legal

fictions at the heart of Pennoyer v. Neff

and enunciated the standard that subse-

quently has remained the touchstone for

determining when it would not offend Due

Process to subject a nonresident defendant

to suit in the forum state--even when

there is only a "single act” involved:

"([Djue process requires

only that in order to

subject a defendant to a

judgment in personam, if

he be not present within

the territory of the

forum he have certain

minimum contacts with it

such that maintenance

of the suit does not

offend ‘traditional

notions of fair play and

substantial justice'’”.

326 U.S. at 316 (emphasis

added).

The decision below, which built upon and

went well beyond Lakeside is in irreconcil-

able conflict with not only the Inter-

national Shoe and McGee holdings and ration-

ales, but also with the rationales under-

lying several recent decisions of this

Court.

Consider, for example, Note, Lakeside

Bridge & Steel Co. v. Mountain State

Construction _: Inflexible catio

of “Arm Jurisdiction Standards to the

Nonresident Purchaser, 76 Nw.U.L.Rev. 345

(1980), which pointed out, inter alia:

"The court in Lakeside

appeared to treat

‘minimum contacts’ concept

as a physical contact

requirement rather than a

symbol of relationship

with the forum state

sufficient to sustain

jurisdiction in harmony

with due process demands

and overall fairness (p.

347)

"The court in side

derived a distort

standard as a result of

its selective reading of

relevant case law. Had

-42<-

the Seventh Circuit

conducted a more complete

survey of precedents and

persuasive authority, it

might have brought a

balanced standard to its

application of the law to

the facts of Lakeside.

Such a standard woul

require a flexible exam-

ination of all relevant

factors in each case:

the business or personal

nature of the transaction;

the nature and magnitude

of the transaction; the

foreseeability of litiga-

tion in the forum state;

the overall fairness of

litigating in the forum

state given the defendant's

relationship to the state

and impact on the state;

and the interests of the

plaintiff and the forum

state. (p. 356)

"... A flexible analysis

would reveal that the

defendant Mountain State

did purposefully avail

' itself of the opportuni-

ties and, consequently,

the responsibilities of

transacting business with

the resident manufacturer.

(p. 361)

"... The court adopted a

distorted standard,

applied it too rigidly,

and overlooked other

-43-

relevant factors.... A

flexible analysis would

necessitate looking

beyond who initiated the

contacts, who stepped

over a state boundary

line, and where goods

ordered were specified to

be manufactured. A court

must examine the contract

negotiations, consider

the custom order nature

of the transaction,

recognize the commercial

benefit to the parties of

such a sizable contract,

and accord sufficient

weight to the interests

of the forum state.

These factors, as well as

the reasonable expectation

eof the defendant and the

absence of any demonstra-

ted unfairness, compel a

result contrary to the

Seventh Circuit's holding”.

(p. 361).

This critique is even more appropos vis a

vis the decision below than Lakeside.

The decision below is incompatible

with the rationale embraced in Shaffer

v. Heitner, 443 U.S. 186, 203-04, n. 20

(1977) where this Court reaffirmed the

aforesaid International Shoe interstate

"contacts" doctrine, explained its

juxtaposition to Hanson v. Denckla, 357

U.S. 235 (1958), and then cautioned:

echanical or quantitative evalua-

tions o e defendant's activities

in the forum could not resolve the

question of reasonableness:

‘Whether due process

is satisfied must

depend rather upon

the quality and

nature of the acti-

vity in relation to

the fair and orderly

administration of

the laws which it

was the purpose of

the due process

clause to insure.'"

The decision below which gave decisive

weight to the lack of physical presence

of Keeler's representatives in the forum

state and the lack of multiple "trans-

actions" is incompatible with the above

standard. There is no necessary rational

link between (1) physical presence in

the forum state and the number of "trans-

actions" and (2) basic Due Process reason-

ableness-fairness--at least in a commer-

cial context. What should be decisive

-45-

is the nature and extent of the inter-

state "contacts," as well as whether or

not buyers realize they are dealing with

with manufacturers-sellers who are located

and will be performing in the forum

state.* Interestingly, in Shaffer, there

was physical presence (i.e., of property)

within the forum state, but this was held

not to be sufficient

"Thus, the relationship

among the defendant, the

forum, and the litiga-

tion, rather than the

mutually exclusive sover-

eignty of the States on

which the rules of Pennoyer

rest, became the central

concern of the inquiry

into personal

“consider in this regard the recent

stimulating Due Process analyses and

suggestions in Comment, Constitutional

Limitations on the State Long Arm Juris-

diction, supra, particularly the section

dealing with commercial transactions

which also is critical of the Lakeside

doctrine (49 U. of Chi. L. Rev. at

173-79). The plethora of recent law

review articles exploring this Due

Process issue is mute testimony that

this issue is ripe for resolution by

this Court.

jurisdiction." 433 U.S.

at 204.

The decision below also is in conflict

with the rationale of Hanson v. Denckla,

Supra, where it was held that a defendant

must “purposely avail itself of the privi-

lege of conducting activities within the

forum State, thus invoking the benefits

and protection of its laws." This princi-

ple was satisfied by Keeler purposely

entering into a sales contract with Jada#ir

for the special manufacture of a large

piece of complicated equipment, which it

knew inevitably had to be performed in

the forum state, and which was in point

of fact performed there. As the Seventh

Circuit itseif recently recognized in

Wisconsin Electrical Manufacturing Co.,

Inc. v. Pennant Products, Inc., supra,

it is sufficient if defendant-buyers

“indirectly” so act within the forum

state. Nonetheless, in the decision

below the Seventh Circuit did not follow

-47-

this basic Due Process principle. Rather,

it erroneously, in effect, returned to a

wooden per se rule requiring direct physi-

cal presence in the forum state and/or

multiple "transactions."

The authors of Comment, Federalism,

Due Process, and Minimum Contacts:

World-Wide Volkswagen Corp. v. Woodson,

80 Colum. L. Rev. 1341 (1980), recently

had the following to say about the Supreme

Court's purposeful affiliation standard

enunciated in Hanson v. Denckla:

"The Court has not agreed

on the exact meaning and

function of the purposeful

affiliation requirement.

See, e.g., Rosenblatt v.

American cvapanid Co., 86

S.Ct. 1, 4 (Gol rg, J.

denying day) appeal

dismissed, 382 U.S. 110

(1964) (per curiam). On

occasion, however, the

Court has implied that

the requirement insures

that the exercise of

jurisdiction is fair to

the defendant in somewhat

distinct respects.

"First, there is the

notion of ‘reciprocity’:

that it is fundamentally

unreasonable to subject a

defendant to the burden

of suit in a state from

which he has neither

derived nor attempted to

obtain any benefit whatso-

ever. See Kulko v.

Ss rior Court, 436 U.S.

84, 101 (1978). Second,

there is the rotion of

"fair notice’: that a

defendant should be

subject to suit only ina

state in which he reasonably

could expect to be haled

into court. See Shaffer

v. Heitner, 433 U.S. 186,

216 (1977); Id. at 217-219

(Stevens, J., concurring)...."

80 Colum. L. Rev. at

1352, N. 89. (Emphasis

added).

Both aspects are easily satisfied here.

However, the decision below not only

failed to give any consideration to these

two basic Due Process principles, but is

in irreconcilable conflict therewith.

The decision below conflicts with

the first purpose of Hanson v. Denckla,

by failing to give due weight to the

substantial economic benefit that Keeler

sought to and did derive from its numerous

ongoing business "contacts" with Jadair in

Wisconsin. Keeler is a large commercial

-49-

concern that purchased an expensive

($78,000) and very useful, but compli-

cated, piece of equipment for use in its

business. Keeler not only contemplated,

but received a substantial economic bene-

fit from its ongoing business relationship

(e.g., re maintenance-repair) with Jadair.

Likewise, the decision below conflicts

with the second purpose of the Hanson

v. Denckla principle. It was in a Due

Process sense foreseeable to Keeler that

its ongoing and substantial business

relationship with Jadair might subject it

to jurisdiction in a Wisconsin court.

When a business corporation enters into a

subcontractual contract with a manufacturer

whose operations are all located ina

particular state, which results in an

ongoing business relationship involving

many sub-transactions and a host of inter-

state “contacts” with the forum State,

that business corperation is in no posi-

tion to claim "surprise" in a Due Process

-50-

sense when an action relating to the con-

tract is instituted in that state after

disagreements have erupted. Nor did

Keeler even attempt to prove any such

"surprise" in this case.

Accordingly, the decision below also

is in conflict with the rationale of

Kulko v. California Superior Court, 436

U.S. 84, 92, 96-97 (1980) which is another

"single act" case where the International

Shoe doctrine was reaffirmed. It was

emphasized that "the interests of the

forum State and of the plaintiff in pro-

ceeding with the cause in the plaintiff's

forum of choice are, of course, to be

considerea"™ and

"In light of our conclu-

sion that appellant did

not sefully derive

benefit i. any activi-

ties relating to the

"It is not without significance that

the line of cases which the decision

below is a part of, essentially involve

federal courts overriding the will of the

people of this country as expressed via

their popularly elected legislatures’

enactment of “Long Arm" statutes.

-Sil-

State of California, it

is apparent that the

California Supreme Court's

reliance on appellant's

having caused an ‘effect'

in California was misplaced.

See supra, at 89, 56 L Ed

2d, at 139. This ‘effects’

test is derived from the

American Law Institute's

Restatement (Second) of

Conflict of Laws §37

(1971),

"While this provision is

not binding on this

Court, it does not in any

event support the decision

below. As is apparent

from the examples

accompanying §37 in the

Restatement, this section

was intended to reach ...

or commercial activity

affecting state resi-

dents, ibid....

"... The cause of action

herein asserted arises,

not from the defendant's

commercial transactions

in interstate commerce,

but rather from his

personal, domestic

relations."

Here, Keeler's ongoing interstate com-

mercial “transaction” led to this

controversy; its choice to enter into the

manufacturing contract caused "effects"

in performance of that contract within

Wisconsin by Jadair; and it purposefully

derived commercial-business benefits from

its “activities relating to the State of

Wisconsin." Hence the decision below is

in irreconcilable conflict with the above

quoted basic Due Process principles

enunciated by this Court.

The decision below for the same

reasons is in conflict with the rationale

underlying Rush v. Savchuk, 444 U.S. 320,

327 (1980):

"In short, it cannot be

said that the defendant

engaged in any puipesefus

activity relat to

forum that would make the

exercise of jurisdiction

fair, just, or reason-

able, ...merely because

his insurer does business

there.

"Nor are there significant

contacts between the

litigation and the forum."

(Emphasis added)

There is no room under the Rush principle

for mechanical per se requirements that

buyers such as Keeler must either, while

physically in the forum state via its

-53-

representatives, have entered into a

commercially nonsensical sales contract

that expressly specifies that the goods

must be manufactured in the forum state,

or have entered into more than one

"transaction." As to the first, this

Court looked for "contacts with,” "the

relationship among,” "purposeful activity

related to” and “significant contacts

between"--not for acts directly accom-

plished by the defendant within the state

in the physical sencs. As to the second,

the focus was solely upon "traditional

notions” of fair play and “substantial

justice” geared to an analysis whether

the defendant purposefully entered into

a relationship with a state knowing that

it was located in the forum state--not an

examination of contracting technicalities

and a mechanical counting of the number

of "transactions."

In -W Volk Corp. v.

Woodson, 444 U.S. 286, 292-93 (1980),

-54-

this Court also followed the International

Shoe analysis vis a vis the "coutacts”

between defendants and the forum state in

the context of considerations such as

"fairness," "reasonableness," and the

"forum state's interest in adjudicating

the dispute,” emphasizing:

"The limits imposed on

state jurisdiction by the

Due Process Clause, in

its role as a guarantor

against inconvenient

litigation, have been

substantially relaxed

over the years. As we

pational Life Ins. Ge.

s trend

is largely attributable

to a fundamental trans-

formation in the American

economy:

‘Today many commer-

cial transactions

touch two or more

States and may

involve parties

separated by the

full continent.

With this increasing

nationalization of

commerce has come a

great increase in

the amount of ss

it the sane time

modern transportation

-55-

and communication

have made it much

a party to

defend himself ina

State where he

engages in economic

activity. '

"The historical develop-

ments noted in McGee, of

course, have only accelerated

in the generation since

that case was decided."

444 U.S. at 292 (emphasis

added).

The decision below ran directly counter

to this “relaxing” trend and its ration-

ale is completely out of step with the

above principles that led thereto.

CONCLUSION

This case unequivocally poses this

basic unresolved Due Process issue in a

unique and undisputed factual setting

which sharply focuses the material Due

Process considerations. The issue is

ripe for resolution by this Court, as

lower courts and law review commentators

have explored in depth the various con-

siderations involved. There is a pressing

-56-

(ewe

need for this Court to determine, inter

alia, the proper role, if any, in the

controlling Due Process methodology, of a

requirement of “physical presence” and a

requirement that there must be multiple

"transactions." This Court should consider

whether or not it is a sufficient inter-

state connection with the forum state that

a foreign business corporation purposely

entered into a single substantial sales-

manufacturing contract which it knew was

going to be performed by the seller manu-

facturing the goods in, and shipping the

goods F.0.B. from, the forum state. Due

Process jurisdictional decisions rendered

by this Court to date yield only amorphous,

and arguably conflicting, guidance vis a

vis this basic issue which has resulted in

oS7<

continual litigation with widely conflict-

ing results.

Respectfully submitted,

Counsel of Record

ROSS R. KINNEY

MARK E. SANDERS

Quarles & Brady

780 North Water Street

Milwaukee, WI $3202

(414) 277-5000

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