# Appendix — Jadair, Inc. v. Walt Keeler Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0672%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 944 ## Text > INDEX TO APPENDIX Page Opinion of Court of Appeals ...... 1 Memorandum and Order of District court 9 Judgment of Court of Appeals ..... 22 SUBMITTED JANUARY 11, 1982°—Decipep May 26. 1982 Before CumMINGS, Chief Judge, SPRECHER** and Woop, Circuit Judges. Cummines, Chief Judge. Jadair, Inc. (“Jadair”), a Wis- consin brought a declaratory judgment ac- tion in state court against the Walt Keeler Company, Inc. (“Keeler”), a Kansas Keeler removed the suit to federal court under 28 U.S.C nie = ie lite Din e 1 i ey sits Ait 11112 ith 111 aid p 111 e 718 I e 17275 as 119 HEN it ie 27 21 it Bi iha RU eet cs Gon 5 te LE e lee ii e A ee e e V 1 eie and intimate no view about estoppel e e i cee HOE Tea 1 e ea e ei ie 115 : 10 a aE 1 248 iE 5 as gape ith i 4 et 1 8352 at 14341325 ite 0 H 375 be “clogged” with diversity suits (Br. 12-14). ite adair a The line “yf ein ite Fo $25,000 not eed e No. 81-1380 1 A . | 11 1 1 it i f Hitt Haid Gent : EE iy 3! inhi 3 11 5 11711 0 > uf 1 0 1 Br. id 115 1 tt i ae 7131331325 4 rf A une . 834313 l 85 2 ae la i 1% ee apatites 1 i ial 1835 us 5275 : i 58 “iil 11 Ie 12271 1 117 af ge 25 90 5 rh Cl TE 1 5 i li He Hil init 1 0 stl a | et No. 81-1380 place of business is located there is entitled to invoke Teste: The judgment appealed from is affirmed. Costs to appellee. A true Copy: wil wi ie f USCA 5730—Midwest Law Printing Co. Ine. Chicago—6-26-82—400 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN JADAIR, INC., Plaintiff, vs. Case No. 79-C-971 THE WALT KEELER COMPANY, INC., Entered February 23, 1981 Defendant. MEMORANDUM AND ORDER The plaintiff in this action is Jadair, Inc., a Wisconsin corporation which manufactures Redi-Wash equipment at its plant in Port Washington, Wisconsin. A Redi-Wash machine is a device used to clean out cement trucks after they have hauled a load of cement. The defendant, The Walt 10 Keeler Co., is a Kansas corporation which purchased a Redi-Wash machine from plaintiff. The plaintiff brought this action seeking a declaratory judgment that it is not indebted to the defendant for any damage due to difficulties defendant experienced with plaintiff's machine. The defen- dant has filed a motion to dismiss for lack of personal jurisdiction. After substantial discovery on the issue, the plaintiff responded and the issue is now ripe for resolution. The following facts are undisputed. On October 25, 1978, plaintiff's sales manager, William Sarring, met with defendant's president, Earl Callison, at defendant's facility in Wichita, Kansas to discuss the selling of a Redi-Wash machine to defendant. 11 During this meeting, Mr. Sarring informed Mr. Callison that if Walt Keeler purchased a Redi-Wash machine, it would be produced at the Jadair facility in Port Washington, Wisconsin and that was the only place where the machine could be built. On November 1, 1978, the parties entered into a contract for the pur- chase and sale of a Redi-Wash machine. The contract was signed at defendant's facilities in Wichita, Kansas. It provided for the purchase of one Redi-Wash machine F. O. B. seller's plant, Port Washington, Wisconsin. Defendant's officers and employees never came to Wisconsin in connection with this purchase. Furthermore, defendant has no offices, bank accounts or listing in Wisconsin and transacts 12 no business in the state. Wisconsin Statutes section 801.05(5)(d) provides that the courts of the state have jurisdiction over a person in any action which: (ad) Relates to goods, documents of titls, or other things of value shipped from this state by the plaintiff to the defendant on his order or direction. This provision of the Wisconsin long-arm statute is, however, subject to the caveat that the legislature intended that the statute would "reach only so far as permitted by the due process clause of the Fourteenth Amendment to the United States Constitution and no further.” Lakeside Bridge & Steel v. Mountain State Construction Co., 597 F.2d 596, 599 (7th Cir. 1979) citing Flambeau Plastics Corp. v. Kin Mfg. Co., 24 Ms. 2d 459, 129 N.W.2d 237 13 (1964). Therefore, in interpreting the statute, the Court must determine whether the defendant has "purposefully availfed] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Hanson x. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). This standard must be applied on a case-by-case basis. Id. Recently, the seventh circuit has demonstrated how enigmatic the concept of personal jurisdiction is given the various factors the courts must con- sider. In Lakeside Bridge Steel v. Mountain State Construction, the court held that a foreign corporation was not subject to jurisdiction in Wisconsin when the sole basis for the assertion 14 of jurisdiction was the unilateral activity of the resident plaintiff. 597 F.2d at 603. In reaching its decision, the court applied the factors set out in The Restatement (Second) of Conflict of Laws, § 37 comment a. Comment a states that when an out-of-state may not have been done with intention of causing effects i ® state but could reasonably hi: een expected to do so It state's power to exercise jud al jurisdiction] depends upon a variety of factors, including the extent of the relationship of the state to the defendant and to the plain- tiff-the nature and quality of the effects resulting from the act, and the degree of inconven- ience which would result to the defendant from being forced to stand suit in the state on the particular cause of action. 15 Because the defendant in Lakeside had no other contacts with Wisconsin and because the activity it caused in Wisconsin - the productivr. of goods was not highly dangerous, the court held that it lacked significant contact with Wisconsin to subject it to juris- diction in the state. The court, however, expressly declined to decide if the result would be different had the contract specifically required production in Wisconsin or if the nature of the plaintiff's contractual obligations made performance in the forum state necessary. Id. at 603 n.13. The seventh circuit in ruling as it did in Lakeside Bridge & Steel aligned itself with a number of other circuits that have held that perfor- mance of a contract in the forum state 16 by plaintiff is not enous by itself to establish jurisdiction over a non-resident defendant without any other contacts with the forum state. Id. at 601 and cases cited therein. Many read the seventh circuit's decision in Lakeside as a retrenchment by the court on the issue of personal jurisdiction. Yet, a few months after Lakeside, the court distinguished its Lakeside opinion in holding that personal jurisdiction did exist over a non-resident defendant whose officers had made two trips to Wisconsin for purposes related to the contracts. Wisconsin Electric Manufacturing Co. v. Pennant Products, 619 F.2d 676 (7th Cir. 1980). The court found that the two visits to Wisconsin by officials of Pen. nt Products were significant 17 to the formation and performance of the contract and thus defendant had conducted avtivities [sic] in the forum state sufficient to satisfy due process. Id. at 678. Absent these two contacts, the defendant lacked any connection with the state. The decisiou in Pennant Products appeared to cast doubt on the reasoning of the Lakeside court because the seventh circuit failed to explain why face-to-face negotiations in Wisconsin differed from negotiations by mail or phone with regard to the issue of jurisdiction. This is especially true given the court's expressed disavowal that it was deciding the issue based on the defendant's presence in the state. 619 F.2d at 678 n.8. 18 The seventh circuit further muddled the issue in its most recent opinion in Koster v. Automark Indus- tries, Inc., No. 80-1765 slip op. (7th Cir. Feb. 3, 1981). There the court cited with approval and expressly relied on its opinion in Lakeside to hold that a corporation which had done business with a citizen of the Nether- lands, but not in the Netherlands, was not amenable to jurisdiction in the Netheriands. In further explaining the Lakeside opinion, the court noted that it assumed thac the defendant in Lakeside believed the contract would be performed in Wisconsin. Slip Op. at 4. This, however, wan not enough for a successful assertion of jurisdic- tion under the circumstances. 19 In light of the Koster case, the Court finds that the reasoning in Lakeside has continuing viability. Furthermore, the Court finds that under the reasoning of Lakeside, defendant does not have sufficient contacts with the state of Wisconsin to subject it to the jurisdiction of the state without violating due process. As stated earlier, defendant had no other contacts with Wisconsin, its officials never came into the state, and the contract did not require that the plaintiff perform a particularly dangerous activity in the state. Furthermore, contrary to plaintiff's suggestion, that the defendant knew the contract would be performed in Wisconsin is not a significant factor. Koster v. Automark Industries, Inc., 20 Slip Op. at 4. The contract itself did not require performance in Wiscon- sin, nor did the nature of plaintiff's performance make performance in the state a necessity. That the only plant that could produce the product was located in Wisconsin did not make performance necessary in Wisconsin. It did, however, make it inevitable. Finally, the Court concurs with the practical reasoning of the first circuit in Whittaker Corporation v. United Aircraft Corporation, 482 F.2d 1079, 1085 (lst Cir. 1973) that the "interest of the forum [state] in not discouraging foreign purchasers from dealing with resident sellers for fear ef having to engage in litigation in distant courts undercuts an expanrive 1 21 interpretation" of Wisconsin's long-arm statute. On the basis of the foregoing, the Court finds that the defendant's motion to dismiss for lack of personal jurisdiction must be and is hereby granted. SO ORDERED this 23rd day of February, 1981, at Milwaukee, Wisconsin. /s/ Rogert W. Warren UNITED STATES DISTRICT JUDGE — 22 Opinion by Judge Cummings JUDGMENT -- WITHOUT ORAL ARGUMENT UNITED STATES COURT OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 May 26, 1982 Before Hon. WALTER J. CUMMINGS, Chief Judge Hon. ROBERT A. SPRECHER, Circuit Judge* Hon. HARLINGTON WOOD, JR., Circuit Judge JADAIR, INC., Appeal from the United States Plaintiff- District Court for Appellant the Eastern District of Wisconsin No. 81-1380 vs. THE WALT KEELER No. 79-C-791 COMPANY, INC., Judge Robert . Defendant- Warren Appellee. * Circuit Judge Robert A. Sprecher read the briefs, participated in the conference and voted to affirm. However, he died without reviewing this opinion. 23 This cause came before the Court for decision on the record from the United States District Court for the Eastern District of Wisconsin. 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, AFFIRMED, costs on appeal to appellee, in accor- dance with the opinion of this Court filed this date. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0672%3A2. Public record. Not legal advice.