Petition for Writ of Certiorari — Rypkema v. Caluri

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Supreme Court, U.S.

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SUPREME COURT OF THE |__— a

UNITED STATES

OCTOBER TERM 1989

NEIL RYPKEMA D/B/A

LAUREL HILL TRUCKING COMPANY

DEFENDANT/PETITIONER

we

DEIDRE CALURI

PLAINTIFF/RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF MAINE

PETITION FOR WRIT OF CERTIORARI

PHILLIP D. BUCKLEY, ESQ.

RUDMAN & WINCHELL

COUNSEL OF RECORD FOR PETITIONER

84 HARLOW STREET

BANGOR, MAINE 04401

(207) 947-4501

BRETT D. BABER, ESQ.

84 HARLOW STREET

BANGOR, MAINE 04401

a

ee

I. QUESTION PRESENTED

WHETHER NEIL RYPKEMA HAS SUFFICIENT MINIMUM

CONTACTS WITH THE STATE OF MAINE TO PERMIT A

MAINE COURT TO ASSERT PERSONAL JURISDICTION

CONSISTENT WITH THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

VI.

VII.

VI.

IX.

Question Presented

Table of Contents

Table of Authorities

Reference to Official and Unofficial Reports

Constitutional Provisions and Statutes

Statement of Jurisdictional Grounds

Statement of the Case

Argument

Appendix

10

California, Solano County, 480 U.S. 102 (1987)

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)

Caluri v, Rypkema, 570 A.2d 830 (Me. 1990)

Ci C ' bean Blectiic Power Co. Inc.

550 F. Supp. 115 (D. Me. 1982)

Hanson y, Denckla, 357 U.S. 235 (1958)

International Shoe Co, v, Washington, 326 U.S. 310 (1945)

McGee y, Intemational Life Ins. Co., 355 U.S. 220 (1957)

Milliken v, Meyer, 311 U.S. 457 (1940)

Nicholas vy, Buchanan, 806 F.2d 305 (ist Cir. 1986),

cert. denied, 481 U.S. 1071 (1987)

Rosenblatt vy. American Cyanamid Co,, 86 S. Ct. 1 (1965)

Whittaker Corp, v, United Aircraft Corp,, 482 F.2d 1079

(1st Cir. 1973)

: Ww W ;

444 U.S. 286 (1980)

CONSTITUTIONS, STATUES AND RULES

U.S. CONST. AMEND XIV, § 1

14 M.R.S.A. § 704-A (1980)

M.R. Civ. P. 12(b)(2)

Caluri v. Rypkema, 570 A.2d 830 (Me. 1990).

Caluri v. Rypkema, No. CV-88-212 (Me. Super. Ct., Pen. Cty.,

Aug. 14, 1989).

V. STATEMENT OF JURISDICTIONAL GROUNDS

(i) Date of Judgment: February 27, 1990

(ii) N/A

(iii) N/A

(iv) Statutory provision supporting jurisdiction:

28 U.S.C. § 1257(a) (1988).

There is a tinal judgment reviewable by this Court. An

assertion of personal jurisdiction with no further review of

that issue possible in state court may be considered by the

Supreme Court before a decision on the merits. See Rosenblatt

y. American Cyanamid Co,, 86 S.Ct. 1 (1965). In Rosenblatt,

Justice Golberg concluded that a final state court decision

finding personal jurisdiction was a final judgment for pur-

poses of review. Id.

A motion to stay the underlying proceedings while this

appeal is pending has been filed in Penobscot County Supe-

rior Court.

VI. NST T V

(i) Amendment XIV to the United States Constitution

§ 1. Citizenship rights not to be abridged by states.

Section 1. ... nor shall any state deprive any person of life,

liberty, or property, without due process of the law; ...

(ii) 14 M.R.S.A. § 704-A (1980) (See Appendix 13-14)

VII. STATEMENT OF THE CASE

The plaintiff, Deidre Caluri, brought suit in Maine Superior

Court against the defendant, Neil Rypkema d/b/a/ Laurel Hill Trucking

Company, by complaint dated May 16, 1988. Service of process was

made on Neil Rypkema in Secaucus, New Jersey on or about June 10,

1988.

4

hi ctnesiaaimanaiaaiiemiael

On July 14, 1988, Neil Rypkema filed a motion to dismiss

pursuant to M.R. Civ. P. 12(b)(2) because the court lacks personal juris-

diction over him. In his supporting memorandum, Mr. Rypkema cited a

federal decision to support his argument that his due process rights under

the Fourteenth Amendment to the United States Constitution would be

violated if the court asserted personal jurisdiction. Mr. Rypkema also

maintained that the corporation, Laurel Hill Trucking Company, was the

proper party, not himself individually.

On August 14, 1989, the Superior Court, after a nontestimonial

hearing, granted the motion to dismiss. The presiding justice concluded

that Neil Rypkema did not have sufficient contacts with the state to

require him to defend this action in Maine. Order, Appendix at 5-12. The

court cited two federal decisions in support of its conclusion. Order,

Appendix at 9-11, citing Whittaker Com. v. United Aircraft Corp., 482

F.2d 1079 (1st Cir. 1973); Cives Corp. vy. American Electric Power Co.,

Inc., 550 F. Supp. 1155 (D. Me. 1982).

The plaintiff-respondent filed a timely notice of appeal. Both

parties briefed the issue of whether the court lacked personal jurisdiction

consistent witht he due process clause of the Fourteenth Amendment to

the United States Constitution.

On February 27, 1990, the Maine Supreme Judicial Court vacated

the order of the Superior Court and remanded for trial. The Law Court

reasoned that because the defendant should have reasonably anticipated

litigation in Maine, the assertion of jurisdiction comports with the due

process Clause of the United States Constitution. Caluri v. Rypkema, 570

A.2d 830 (Me. 1990).

The plaintiff, a Maine resident, alleged in her complaint that she

entered into a contract with the defendant, Neil Rypkema, a New Jersey

resident. She alleges that the defendant breached the contract. See

Complaint, Appendix at 15-18.

In February, 1985, the plaintiff contacted Mr. Rypkema in New

Jersey by telephone to discuss the possibility of becoming the Maine

Pear sg iri for Laurel Hill Trucking Company. Affidavit of Deidre

Caluri, Appendix at 19-21.' The plaintiff informed Mr. Rypkema that she

would contact various Maine businesses to determine if they needed

1 Mr. Rypkema has been sued as an individual. The company has not been named as

a direct defendant and has not been served. Accordingly, the list of companies and

subsidiaries required under Supreme Court Rule 29.1 has not been provided.

5

trucking services. Jd. If she was successful in obtaining contracts for

Laurel Hill Trucking Company, her fee would be based on a percentage

of the hauling contract. Id.

The named defendant, Neil Rypkema, is the president of Laurel

Hill Trucking Company of Secaucus, New Jersey. Affidavit of Neil

Rypkema, Appendix at 22-23. Laurel Hill Trucking Company is a

corporation organized under the laws of New Jersey. Mr. Rypkema never

personally entered into a contract with the plaintiff and has never

personally done business in the State of Maine. Id. He does not own, use

Or possess any real estate in Maine. Jd. Mr. Rypkema has never

personally committed a tortious act in Maine, nor has he caused a tortious

act to be done in Maine. Id. He has not personally contracted to insure

any person, property or risk in Maine and has not contracted to supply

services or things in Maine. Id.

The only contract allegedly arranged by the plaintiff involved

Ames Department Stores, Inc. which has its regional headquarters in

Rocky Hill, Connecticut. See Affidavit of Deidre Caluri, Appendix at 19-

21. On March 8, 1985, an Ames representative asked the plaintiff if

trucks were available in Ohio, Pennsylvania and Massachusetts. The

plaintiff replied that there were trucks available in those states and

arranged a meeting at Ames' regional headquarters between Mr. Rypkema,

a representative of Ames, and herself. Jd. at 19. The plaintiff alleges that

Laurel Hill Trucking Company began hauling for Ames on May 28, 1985.

Id. The plaintiff does not allege that Mr. Rypkema or Laurel Hill

Trucking Company hauled any loads into the State of Maine for Ames or

for any other person or corporation.

With the exception of the meeting in Connecticut, all direct

discussions between the parties were conducted by telephone. According

to the Plaintiff's Affidavit, only one telephone call originated from Laurel

Hill Trucking Company. Affidavit of De‘dre Caluri, 4 15, Appendix at

19-21. From April, 1985 to December, 1986, the plaintiff received

commissions from the defendant on the Ames' account. Complaint,

Appendix at 16.

Vill. ARGUMENT

In Caluri v. Rypkema, 570 A.2d 830 (Me. 1990), the Maine

Supreme Judicial Court erred in its application of a longstanding series

of United States Supreme Court decisions that delineate when personal

jurisdiction may be asserted consistent with the due process clause of

the Fourteenth Amendment to the United States Constitution. The

Supreme Court has consistently held that the due process clause of the

Fourteenth Amendment precludes a state court from exercising personal

jurisdiction over a defendant under circumstances that offend "traditional

notions of fair play and substantial justice.". Asahi Metal Industry Co.,

Lid, v, Superior Court of Califomia, Solano County, 480 U.S. 102 (1987);

International Shoe Co, v, Washington, 326 U.S. 310, 316 (1945) quoting

Milliken vy, Meyer, 311 U.S. 457, 463 (1940). To satisfy the "traditional

notions of fair play and substantial justice," a nonresident defendant must

have “minimum contacts" with the forum state before personal juris-

diction may be asserted. Asahi Metal Industry, 480 U.S. at 108, 109;

Intemational Shoe Co,, 326 U.S. at 316.

The necessary minimum contacts must be based on “some act

by which the defendant purposefully avails itself of the privilege of con-

ducting activities within the forum state, thus invoking the benefits and

protections of its laws." Burger King Corp. v. Rudzewicz, 471 US.

462, 475 (1985). As the Court further stated, "[jJurisdiction is proper

. where the contacts proximately result from actions by the defendant

himself that create a ‘substantial connection’ with the forum state." Id.

quoting McGee vy, International Life Ins. Co,, 355 U.S. 220, 223 (1957).

In applying this principle, the Supreme Court has ruled that the minimum

contacts must be based on the affirmative actions of the defendant;

unilateral actions by the plaintiff are not sufficient. Asahi Metal Industry,

480 U.S. at 109; World-Wide Volkswagen Corp, v. Woodsen, 444 U.S.

286 (1980). See also Nicholas v, Buchanan, 806 F.2d 305, 307 (Ist

Cir. 1986), cert, denied, 481 U.S. 1071 (1987).

Lower federal courts applying these decisions have held that an

individual's contract with an out-of-state party cannot alone establish

sufficient minimum contacts. Nicholas v. Buchanan, 806 F.2d 305, 307

(Ist Cir. 1986), cert, denied, 481 U.S. 1071 (1987); Cives Com. v.

American Electric Power Co., Inc,, 550 F. Supp. 1155 (D. Me. 1982).

The courts reasoned that the plaintiffs’ unilateral performance of the

contract within the forum state was insufficient to support the exercise

of personal jurisdiction. Nicholas, 806 F.2d at 307; Cives Corp.,

550 F.Supp. at 1158. The use of interstate channels of communication

is also insufficient to satisfy due process requirements. Nicholas, 806

F.2d at 307.

Without expressly saying so, the Maine Supreme Judicial Court

adopted a "foreseeability" test to determine if personal jurisdiction may

be asserted in the present case. In Caluri v, Rypkema, 570 A.2d 830

(Me. 1990), the Law Court determined jurisdiction was proper because

the defendant "should reasonably have anticipated litigation in Maine."

Caluri vy. Rypkema, 570 A.2d at 832. However, the United States

Supreme Court has rejected "foreseeability" as a benchmark to deter-

mine personal jurisdiction. World-Wide Volkswagen Corp, v, Wood-

sen, 444 U.S. 286, 297 (1980). In rejecting the foreseeability test, the

Supreme Court emphasized that “the mere unilateral activity of those

who claim some relationship with a nonresident defendant cannot satisfy

the requirement of contact with the forum state." World-Wide Volkswagen

Cor., 444 U.S. at 294, quoting Hanson vy, Denckla, 357 U.S. 235, 253

(1958).

In this case, the contacts, if any, between the State of Maine

and Neil Rypkema were the unilateral efforts of the plaintiff. Neil

Rypkema is a resident of New Jersey who has never personally done

business in Maine. Any contacts were between the plaintiff and Laurel

Hill Trucking Company, not Mr. Rypkema individually. Mr. Rypkema

States in his affidavit that he has not engaged in any of the acts enumerated

in the Maine Long-Arm Statute, 14 M.R.S.A. § 704-A (1980). Thus,

Mr. Rypkema has never personally availed himself of the benefits and

protections of the State of Maine.

The plaintiff has alleged that she performed various acts in the

State of Maine on behalf of Laurel Hill Trucking Company. However,

these unilateral acts cannot support jurisdiction. See, e.g., Asahi Metal

Industry Co.. Ltd., 440 U.S. at 109 (1987). The plaintiff states in her |

affidavit that she made the first contact with Mr. Rypkema by calling

him in New jcrsey. The only business she allegedly generated involved

shipping services performed in Pennsylvania, Ohio and Massachusetts.

The only personal meeting between the parties occurred in Connecticut. :

Although a manager of Laurel Hill Trucking Company called the plain-

tiff on one occasion and her initial commissions were paid in correspon-

dence sent through the United States mail, this use of interstate means

of communication is insufficient to support jurisdiction. Nicholas, 806

F.2d at 307; Cives, 550 F.Supp. at 1158.

8

a eT

The plaintiff has failed to establish that Neil Rypkema has

"minimum contacts" with the State of Maine. Thus, the courts of the

State of Maine are precluded from asserting personal jurisdiction.

The due process clause protection against an unwarranted assertion

of personal jurisdiction is a significant aspect of the Fourteenth Amendment

to the United States Constitution. The United States Supreme Court

has issued consistent precedent applying the "minimum contacts" analysis

in determining whether personal jurisdiction exists. The decision of

the Maine Supreme Judicial Court departs from that tradition. Accord-

ingly, the defendant-petitioner, Neil Rypkema, respectfully requests the

United States Supreme Court to grant certiorari in this case to resolve

this ongoing ard important issue of constitutional law.

Respectfully submitted this 23rd day of May, 1990.

. Buckley, Esq.

& WINCHELL

Counsel of Record for Petitioner

84 Harlow Street

Bangor, Maine 04401

(207) 947-4501

(QeeP)_ Buber

Brett D. Baber, Esq.

IX. APPENDIX

Decision of the Maine Supreme Judicial Court

Decision of the Maine Superior Court

14 M.R.S.A.§ 704 (1980)

Complaint

Affidavit of Deidre Caluri

Affidavit of Neil Rypkema

10

PAGE(S)

11

16

21

23

26

29

Deidre CALURI

v.

Neil RYPKEMA d/b/a/ Laurel Hill

Trucking Company.

Supreme Judicial Court of Maine.

Submitted on Briefs Jan. 30, 1990.

Decided Feb. 27, 1990.

Representative of trucking company brought suit against company

for breach of contract. The Superior Court, Penobscot County, Beau-

lieu, J., dismissed complaint for lack of personal jurisdiction, and rep-

resentative appealed. The Supreme Judicial Court, Wathen, J., held that

jurisdiction over trucking company comported with due process clause.

Vacated and remanded.

Perry O'Brian, Vandermeulen, Goldman, Allen & O'Brian, Bangor,

for plaintiff.

Brett D. Baber, Phillip D. Buckley, Rudman & Winchell, Bangor,

for defendant.

Before WATHEN, GLASSMAN, CLIFFORD, HORNBY and

COLLINS, JJ.

WATHEN, Justice.

Plaintiff Deidre Caluri appeals from an order of the Superior Court

(Penobscot County, Beaulieu, J.) dismissing her complaint pursuant to

M.R.Civ.P. 12(b)(2) for lack of personal jurisdiction over defendant, Neil

Rypkema, d/b/a/ Laurel Hill Trucking Company. On appeal, plaintiff

argues that by his conduct defendant should reasonably have anticipated

litigation in Maine and that therefore jurisdiction over defendant com-

ports with the due process clause of the United States Constitution. We

agree with plaintiff's contention and vacate the Superior Court's order.

By her complaint and affidavit, plaintiff has alleged the following

facts: Plaintiff is a resident of Stetson, Maine. In February, 1985, she

contacted defendant by phone and discussed with him the possibility of

becoming the Maine representative for Laurel Hill Trucking Company.

Plaintiff was to contact various businesses in Maine for the purpose of

securing contracts for defendant. Her commission was to be based on

a percentage of the total amount hauled under each contract.

11

CALURI v. RYPKEMA

Cite as 570 A.2d 830 (Me. 1990)

On March 4, plaintiff contacted the Ames Department Store in New-

port, Maine. She was referred to George Bolduc, Assistant Traffic

Manager at Ames' regional headquarters in Rocky Hill, Connecticut. At

Bolduc's request, and with defendant's approval, plaintiff mailed a letter

to Bolduc setting forth information on rates and insurance. On April

23, both plaintiff, from Maine, and defendant, from New Jersey, travelled

to Rocky Hill and met with Bolduc. On May 28, defendant began hauling

for Ames Department Stores. None of the hauling took place in Maine.

From April, 1985, to December, 1986, plaintiff received periodic

commissions on the Ames account. In August, 1985, defendant tele-

phoned plaintiff regarding the Ames account because business was

unusually slow. Plaintiff contacted Bolduc and soon after business

increased dramatically. In addition to the Ames account, plaintiff

contacted numerous other businesses in Maine in the hope of securing

other contracts but was ultimately unsuccessful.

Defendant made no payments after December 31, 1986. Plaintiff's

complaint states a cause of action for breach of contract. After a non-

testimonial hearing, the Superior Court granted defendant's motion to

dismiss for lack of personal jurisdiction. Plaintiff now appeals.

[1] The jurisdictional reach of Maine's Long-Arm statute is coex-

tensive with the due process clause of the United States Constitution.

See i4 M.R.S.A. § 704-A (1980).' In order to satisfy the requirements

of due process, the Court must affirmatively answer three questions:

(1) does the forum state have a legitimate interest in the subject matter

of the action; (2) should the defendant by his conduct reasonably

have anticipated litigation in the forum state; and (3) would the

exercise of jurisdiction comport with "traditional notions of fair play

and substantial justice"?

1. § 704-A provides in relevant part:

2. Causes of action. Any person, whether or not a citizen or resident of this State, who

in person or through an agent does any of the acts hereinafter enumerated in this section

/. Maintain any other relation to the State or to persons or property which affords a basis

for the exercise of jurisdiction by the courts of this State consistent with the Constitution

of the United States.

12

CALURI v. RYPKEMA

Cite as 570 A.2d 830 (Me. 1990)

Harriman v. Demoulas Supermarkets, Inc., 518 A.2d 1035,

1036(Me.1986). Foreside Common Development Corp. v. Bleisch, 463

A.2d 767, 769 (Me.1983). Plaintiff bears the burden of establishing that

jurisdiction is proper. Kowalski v. Doherty, Wallace, Pillsbury &

Murphy, 787 F.2d 7, 8 (1st Cir.1986).2, Such showing "must be based

on specific facts set forth in the record," and the record is to be "construed

in plaintiff's favor." Jd. at 8-9.?

Plaintiff argues that the motion justice erred by ruling that she failed

to satisfy the second prong of the test, namely, that by his conduct

defendant shouid "reasonably have anticipated litigation in [Maine]."

Harriman, 518 A.2d at 1036.‘ Specifically, plaintiff contends that the

court's reliance on Cives Corp. v. American Electric Power Co., Inc.,

550 F.Supp. 1155 (D.Me. 1982), and Whittaker Corp. v. United Aircraft

Corp., 482 F.2d 1079 (1st Cir. 1973), was misplaced. In plaintiff's view,

a recent United States Supreme Court decision, Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985),

supports Maine's jurisdiction over defendant in this case.

Our analysis in Harriman incorporates Burger King and the other

governing opinions of the United States Supreme Court. In Harriman,

we held that a Massachusetts supermarket chain, Demoulas Supermar-

kets, Inc., could be sued in Maine for the personal injuries to an employee

of F.R. LePage, Inc., a Maine bakery with which it did business, "because

2. This is true, however, only for the first two prongs of the test. Once plaintiff has

established that Maine has a legitimate interest in the controversy and that the requisite

minimum contracts [sic] exist, the burden then shifts to defendant to show that jurisdic-

tion does not comport with “traditional notions of fair play and substantial justice.”

Harriman, 518 A.2d at 1039, quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462,

477, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985).

3. While we have never ruled on this issue, the United States Court of Appeals for the First

Circuit has held that "[w]here there has been no evidentiary hearing and the court

proceeds upon written submissions, [the] plaintiff ‘need only make a prima facie

showing that jurisdiction exists... ."" Kowai:’i, 787 F.2d at 8 (citations omitted).

Accordingly, "[p}laintiff's written allegations of jurisdictional facts [should be] con-

strued in [her] favor.” /d. at 9.

4. Defendant concedes that the Superior Court correctly ruled that plaintiff sustained her

burden on the first prong of the test.

13

CALURI v. RYPKEMA

Cite as 570 A.2d 830 (Me. 1990)

it purposefully and continuously directed both purchasing and sales

activities at Maine businesses and residents." Harriman, 518 A.2d at

1037. With respect to its purchasing activities, we focused on a twelve-

year oral agreement that resulted in LePage, along with another Maine

bakery, fulfilling 40% of Demoulas' baked good requirements annually,

as well as the control Demoulas gained over production by directing

LePage to attach its private !abels on a portion of the baked good that

Demoulas ordered. /d. at 1037-38. With respect to its sales activities,

we noted that Demoulas sought to and did infiltrate the sourthern Maine

market respecting its New Hampshire stores by advertising in newspa-

pers and on radio. /d. at 1038.

[2] In analyzing whether Demoulas should reasonably have antici-

pated litigation in Maine, our opinion in Harriman relies on Burger King,

Stating that due process is satisfied when a defendant " ‘purposefully

directs his activities at residents of a forum’ .. . by ‘creating continuing

obligations between himself and residents’ of the forum... ." Harriman,

518 A.2d at 1037, quoting Burger King, 471 U.S. at 473-75, 105 S.Ct.

at 2182-84. Applying this standard to the facts of this case, we conclude

that plaintiff has established the requisite minimum contacts to support

personal jurisdiction over defendant. First, defendant's obligations to

plaintiff respecting the Ames account were of a continuous nature.

Second, plaintiff has made a prima facie showing that a general agency

relationship existed between herself and defendant whereby defendant

attempted to infiltrate the Maine market for trucking services.* See, e.g.,

5. In Burger King, the Court spoke at some length respecting the extent to which a contract

can constitute a “contact” for purposes of due process analysis:

If the question is whether an individual's contract with an out-of-state party alone

can automatically establish sufficient minimum contacts in the other party's home

forum, we believe th + answer clearly is that it cannot. The Court long ago rejected

the notion that personal jurisdiction might tum on ‘mechanical’ tests, or on

‘conceptualistic . . . theories of the place of contracting or of performance.’ Instead,

we have emphasized the need for a ‘highly realistic’ approach that recognizes that

a ‘contract’ is ‘ordinarily but an intermediate step serving to tie up prior business

negotiations with future consequences which themselves are the real object of the

business transaction.’ It is these factors-prior negotiations and contemplated future

consequences , along with the terms of the contract and the parties’ actal course

of dealing-that must be evaluated in determining whether the defendant purpose-

fully established minimum contacts within the forum.

Burger King, 471 U.S. at 478-79, 105 S.Ct. at 2185-86 (emphasis in original) (citations

omitted).

14

a |

CALURI v. RYPKEMA

Cite as 570 A.2d 830 (Me. 1990)

Libby v. Concord General Mut. Ins. Co., 452 A.2d 979, 981 (Me.1982)

("Agency is the fiduciary relationship 'which results from the manifes-

tation of consent by one person to another that the other shall act on

his behalf and subject to this control, and consent by the other so to act.'");

Restatement (Second) of Agency §§ 1, 3 & 7 (1958). Finally, as in

Harriman, defendant exercised control over plaintiff's performance.

This was demonstrated by defendant's authorization of plaintiff's letter

to Bolduc regarding rates and insurance, as well as defendant's phone

call when the Ames account slowed.

The third prong of the test is whether subjecting defendant to the

jurisdiction of Maine courts comports with "traditional notions of fair

play and substantial justice." In deciding this question in Harriman, we

again relied on Burger King: .

[W]here a defendant who purposefully has directed his activities

at forum residents seeks to defeat jurisdiction, he must present

a compelling case that the presence of some other considerations

would render jurisidction unreasonable.

Harriman, 518 A.2d at 1039, quoting Burger King, 471 U.S. at 477, 105

S.Ct. at 2184. Defendant's affidavit reveals no attempt to demonstrate

that litigation in Maine would be " 'so gravely difficult and inconven-

ient'” that he would be at a "'severe disadvantage in comparison to

[plaintiff]. " Burger King, 471 U.S. at 477, 105 S.Ct. at 2184 (citations

omitted). Moreover, as demonstrated above, the nature and purpose of

defendant's contacts were not so " ‘random, fortuitous, or attenuated’ "that

jurisdiction over defendant is unreasonable. Harriman, 518 A.2d at

1038. Finally, while the extent of defendant's contacts with Maine is

small, "[l]ess extensive activity is required where the cause of action

arises out of or in connection with the defendant's forum-related activity."

Id. Because plaintiff's suit is on the contract, such is the case here.

The entry is:

Order dismissing plaintiff's complaint vacated. Remanded for fur-

ther proceedings consistent with the opinion herein.

All concurring.

15

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, ss: Civil Action

Docket No. CV-88-212

DEIDRE CALURI

Plaintiff

v. ORDER

NEIL RYPKEMA d/b/a LAUREL

HILL TRUCKING COMPANY

Defendant

This breach of contract action is before the Superior Court on

defendant's motion to dismiss plaintiff's complaint pursuant to Rule 12(b)

(2) for lack of personal jurisdiction over the defendant.

FACTUAL BACKGROUND

By way of complaint and swom affidavit plaintiff asserts the

following facts: Plaintiff is a resident of Stetson, Maine; defendant is

operating under the name of Laurel Hill Trucking Co., whose principal

place of business is in Secaucus, New Jersey. In April, 1985, plaintiff

allegedly entered into a contract with the defendant under which plaintiff

became the Maine representative of Laurel Hill Trucking Co. Plaintiff

asserts that this cause of action is brought against defendant in his

individual capacity.

Pursuant to the parties’ contract, plaintiff asserts she secured for

the defendant an account with Ames Department Stores, Inc., having its

regional headquarters in Rocky Hill, Connecticut. From April, 1985 to

December, 1986, plaintiff claims to have received periodic commissions

from defendant on the Ames account as compensation to her for obtaining

the account for defendant. Under the parties’ contract, defendant alleg-

edly agreed to pick up merchandise at various warehouses and bring such

merchandise by truck to Ames Department warehouses throughout the

United States.

With respect to the disputed contract, plaintiff does not claim to

have engaged in negotiations with the defendant in person within the

State of Maine. Plaintiff asserts that negotiations beginning in February,

1985 were conducted by telephone or letter with the defendant who was

16

y

then in New Jersey. Plaintiff further alleges that on April 23, 1985 she

traveled to Rocky Hill, Connecticut where she met with the defendant and

Ames' Assistant Traffic Manager. On May 28, 1985, following the

parties’ meeting, defendant allegedly began hauling for Ames Depart-

ment Stores. Despite efforts by the plaintiff to secure contracts for the

defendant in the State of Maine, plaintiff does not allege that defendant

ever provided trucking services for any Maine residents.

Defendant has responded to plaintiff's assertions with an affida-

vit of its President, Cornelius S. Rypkema. Mr. Rypkema claims, among

other things, that defendant has never contracted to supply services

within the State of Maine, has never personally entered into a contract

with plaintiff and has never personally done business in Maine.

DISCUSSION

Our analysis begins with Maine's "Long Arm" statute, 14 M.R.S.A.

§ 704-A' As stated in its declaration of purpose, the statute was drafted

"to insure maximum protection to citizens of this state." 14 M.R.S.A. §

704-A. Accordingly, the Maine Law Court has interpreted the statute so

as to extend jurisdiction "over nonresident defendants to the fullest extent

permitted by the Due Process clause of the Fourteenth Amendment."

Tyson vy. Whitaker & Son, Inc,, 407 A.2d 1, 3 (Me. 1979). In this case,

plaintiff bears the burden of showing that based upon specific facts set

forth in the record, personal jurisdiction over the defendant is proper.

Aerial Survey & Photo, Inc, v. E, Coyote Enterprises. Inc., No. CV-89-

27 (Me. Super. Ct., Som. Cty., May 30, 1989).

In Tyson v, Whitaker & Son, Inc., supra, 407 A.2d at 3, the Law

Court recognized that the jurisdictional limits of Maine's long arm statute

are coextensive with the jurisdictional requirements provided by the due

process clause of the federal Constitution. The Tyson Court outlined a

three-pronged test for determining whether due process permits the

exercise of personal jurisdiction over a nonresident defendant. Personal

jruisdiction is properly conferred if: (1) the forum state has a legitimate

interest in the subject matter of the action; (2) the defendant exhibited

1. Under Maine's long arm statute, personal jurisdiction over a nonresident defendant is

proper where such person:

Maintain{s] any other relation to the State or to persons or property which affords a basis

for the exercise of jurisdiction by the courts of this State consistent with the Constitution

of the United States.

17

conduct such that he should reasonably have anticipated being hailed into

court in Maine; and (3) the exercise of jurisdiction does not violate

“traditional notions of fair play and substantial justice." Foreside Common

Develop. Corp. v. Bleisch, 463 A.2d 767, 769 (Me. 1983) (quoting,

World-Wide Volkswagen Com, v, Woodson, 444 U.S. 286, 297

(1980). [sic]

The issue before this court is whether, (1) defendant's 's accep-

tance of plaintiff's services performed in Maine; (2) defendant's perform-

ance of trucking services for Ames outside of Maine; and (3) plaintiff's

periodic receipt of commissions from defendant on the Ames account

sufficiently exhibit conduct out of which defendant should reasonably

have expected being hailed into court in Maine. Only if we find both a

legitimate governmental interest and such reasonable expectation need

we reach the third prong of the Tyson test.

Maine has a legitimate interest in providing a forum in which its

citizens, engaged in business activities within this state, may effectively

seek redress against nonresident citizens for a breach of contract. There-

fore, plaintiff has met the first prong requirement of the Tyson test.

The second stage determination, however, is fatal to plaintiff's

case. The Supreme Court has made it clear that the nonresident defendant

who has "purposefully avail[ed] itself of the privilege of conducting

activities within the forum state, thus invoking the benefits and protec-

tions of its laws," may properly be sued there. Hanson vy, Deuckla, 357

U.S. 235,253 (1958).[sic] In Tyson, the Law Court announced that "(t]he

rationale underlying the ‘purposefully availing’ requirement ... appears to

be that the defendant have at least fair notice or a reasonable expectation

that he may be subject to suit in the foreign forum." Tyson, 407 A.2d at

3

In Cives Corp, v, American Electric Power Co., Inc,, 550 F. Supp.

1155, 1156 (D. Me. 1982), plaintiff Cives Corp. brought a breach of

contract action against defendant power company. Plaintiff Cives, from

its Auburn, Maine office, had solicited electrical work to be performed

by plaintiff for defendant, outside of Maine. Jd. Throughout the parties’

negotiations and during the course of their performance no representative

of defendant ever visited plaintiff in Maine. Id. All of the parties’ contract

negotiations were either written or telephone communications between

plaintiff in Maine and defendant in New York. Jd. During the course of

their negotiations, however, plaintiff's personnel in Maine spent approxi-

mately 7CO man hours preparing a final bid for the project. Id.

18

Pursuant to the parties’ contract, plaintiff installed electrical

equipment for defendant at a plant being built outside of Maine. Id. at

1157. Defendant made all monthly payments to plaintiff in Maine from

defendant's Roanoke, Virginia office. Id. Plaintiff began the project

sometime after the creation of the parties’ contract in March, 1979, and

finished in July, 1980.

The Cives court held that because the contacts between the

defendant and the State of Maine were so minimal it would be unreason-

able for the court to exercise personal jurisdiction over the defendant. Id.

at 1158. The court noted that none of the defendants had an office in

Maine; none of the defendants was licensed to do nor did business in

Maine; no employee of the defendant visited Maine in connection with

the parties’ contract; and the only communications between defendant

and plaintiff in Maine were by mail or telephone. Id. Additionally, the

court noted that although plaintiff had spent a substantial amount of time

in Maine preparing its contract bid for defendant (700 man hours),

“plaintiff's unilateral performance within the forum state [was] insuffi-

cient to support the exercise of personal jurisdiction over [a] nonresident

defendant[ }." Id.

Similarly, in Whittaker Corporation vy, United Aircraft Corpora-

tion, 482 F.2d 1079, 1085 (1973), the Massachusetts long arm statute did

not permit the exercise of personal jurisdiction over foreign corporations

where their primary contact with plaintiff in Massachusetts was plain-

tiffs performance of their contracts within the Commonwealth. The

Whittaker court noted that although the creation of a manufacturing

agreement with a forum state resident has been held to support long arm

jurisdiction, "this result has been severely criticized as rendering all

purchasers subject to long arm jurisdiction." Id.

Applying these principles to the case at bar, defendant's contacts

with the plaintiff cannot support the exercise of personal jurisdiction over

it within the State of Maine. According to the record, the only direct

contacts between the defendant and plaintiff were those made when

plaintiff and defendant met in Connecticut to negotiate the Ames con-

tract. Any other written or telephone communications which the plaintiff

and defendant may have had were from their respective offices in Maine

and New Jersey. Defendant does not have an office in Maine; defendant

is not licensed to do nor has it previously done business in Maine; and no

officer or employee of defendant visited Maine in connection with the

disputed contract.

19

As in the Whittaker case, this is not a case where defendant

actively supervised or closely monitored plaintiff's performance within

the forum state. Id. First, plaintiff was responsible for soliciting defen-

dant's performance under their alleged contract. Second, plaintiff asserts

that on only one occasion, when business was apparently slow as to the

Ames account, did defendant express concern about the status of this

account. Plaintiff's allegations that she received periodic commissions

from defendant on the Ames account from April, 1985, until December,

1986, would certainly evidence defendant's recognition of services ren-

dered by the plaintiff in Maine. However, the payment of such

commissions, without more, is an insufficient basis on which to predicate

minimum contacts between the defendant and the State of Maine.

Based on the minimal contacts which defendant has had with

plaintiff in the forum state, it does not appear that defendant had "at least

fair notice or a reasonable expectation" he might be amenable to suit in

Maine. Tyson v, Whitaker & Son, Inc., supra, 407 A.2d at 5. Further-

more, as in Cives, plaintiff's unilateral performance within the forum

State will not alone establish contacts on which personal jurisdiction may

properly be based. In sum, defendant's dealings in this state have been

such that it would be unfair and would violate traditional notions of fair

play and substantial justice to require defendant to defend the present

action in Maine.

Wherefore, the entry is:

Defendant's motion to dismiss plaintiff's complaint for

lack of personal jurisdiction is GRANTED.

DATED: August 14, 1989

Eugene W. Beaulieu

Justice, Superior Court

20

§ 704. Repealed. 1975, c. 770, § 79, eff. April 16, 1976

Historical Note

See, now, § 704-A of this title.

§ 704-A. Persons subject to jurisdiction

1. Declaration of purpose. It is declared, as a matter of

legislative determination, that the public interest demands that the

State provide its citizens with an effective means of redress against

nonresident persons who, through certain significant minimal contacts

with this State, incur obligations to citizens entitled to the state's

protection. This legislative action is deemed necessary because of

technological progress which has substantially increased the flow of

commerce between the several states resulting in increased interaction

between persons of this State and persons of other states.

This section, to insure inaximum protection to citizens of tis

State, shall be applied so as to assert jurisdiction over nonresident de-

| fendants to the fullest extent permitted by the due process clause of

the United States Constitution, 14th amendment. [sic]

2. Causes of acticn. Any person, whether or not a citizen or

resident of this State, who in person or through an agent does any of

; the acts hereinafter enumerated in this section, thereby submits such

person, and, if an individual, his personal representative, to the

| jurisdiction of the courts of this State as to any cause of action arising

! from the doing of any of such acts:

A. — The transaction of any business withir this State;

B. Doing or causing a tortious act to be done, or causing the

consequences of a tortious act to occur within this State;

oe The ownership, use or possession of any real estate

situated in this State;

D. Contracting to insure any person, property or risk located

within this State at the time of contracting;

| E. Conception resulting in paternity within the meaning of

Title 19, chapter 5, subchapter III’;

F. Contracting to supply services or things within this State;

21

G. Maintaining a domicile in this State while subject to a

marital or family relationship out of which arises a claim

for divorce, alimony, separate maintenance, property set-

tlement, child support or child custody; or the commission

in this State of any act giving rise to such a claim; or

H. Acting as a director, manager, trustee or other officer of a

corporation incorporated under the laws of, or having its

principal place of business within, this State.

I. Maintain any other relation to the State or to persons or

property which affords a basis for the exercise of jurisdic-

tion by the courts of this State consistent with the

Constitution of the United States.

3. Personal service. Service of process upon any person who is

subject to the jurisdiction of the courts of this State, as provided in

this section, may be made by personally serving the summons upon

the defendant outside this State, with the same force and effect as

though summons had been personally served within this State.

4. Jurisdiction based upon this section. Only causes of action

arising from acts enumerated herein may be asserted against a defen-

dant in an action in which jurisdiction over him is based upon this

section.

5. Other service not affected. Nothing contained in this section

limits or affects the right to serve any process in any other manner

now or hereafter provided by law.

22

A ET Ea tle

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION, DOCKET NO.

ae he oe oe ae ae a ae ok a ak a aa kaa aa a a

DEIDRE CALURI, of Stetson,

County of Pencbscot, State of Maine

PLAINTIFF

COMPLAINT

VS.

NEIL RYPKEMA d/b/a Laurel Hill

Trucking Company, of Secaucus,

County of Hudson,

State of New Jersey

eee RHREREER HE © &

DEFENDANT «

ae he ate ake ate ae ae ae ake ake ae ak ae a oak aa ok a aa a aa a a a

NOW COMES the Plaintiff, Deidre Caluri, by and through her

undersigned attomey, and complains against the Defendant as follows:

COUNT I

(Breach of Contract)

1. Plaintiff , Deidre Calun, is of Stetson, County of Penobscot,

State of Maine.

2. Plaintiff is operating under the name of Laurel Hill Trucking

Company, whose principal place of business is in Secausus, County of

Hudson, State of New Jersey.

3. Onorabout April, 1985, Plaintiff and Defendant entered into

a contract whereby Plaintiff became the Maine representative of Laurel

Hill Trucking Company. As part of this contract, Plaintiff agreed to

attempt to obtain accounts throughout the United States for the Defendant

in which Defendant would provide trucking services to various compa-

nies.

4. Under the contract, Defendant agreed to pay the Plaintiff a

commission which would vary depending upon the size of the account

that plaintiff would secure for Defendant. The Commission rate ranged

a

from 3 to 5 percent of the gross value per load hauled by Laurel Hill

Trucking Company.

5. Pursuant to the contract, Plaintiff secured for Defendant an

account with Ames Department Stores, Inc., under which Laurel Hill

Trucking Company would pick up merchandise at various warchouses

and bring those items by truck to Ames Department warehouses through-

out the United States.

6. From April, 1985, until December, 1986, Plaintiff received

periodic commissions from Defendant on the Ames account.

7. On December 51, 1986, Defendant stopped paying commis-

sions to Plaintiff.

8. The Plaintiff has duly performed all the conditions of her part

to be performed under the terms of said contract.

9. For such services Defendant agreed and promised to pay

Plaintiff an ongoing commission as determined by the contract.

10. The Plaintiff has made demands upon the Defendant for the

monthly commissions pursuant to the contract, but in breach of the

aforementioned contract the Defendant has wholly neglected to comply

with the terms of the contract and has refused and still refuses to pay said

commissions to the Plaintiff.

12. The Defendants [sic] refusal to pay the ongoing commission

constitutes a breach of the contract whereby the Plaintiff has been

damaged in an amount equal to the value of said commissions to which

amount Plaintiff has become entitled as a result of work performed.

WHEREFORE, Plaintiff prays this Court award judgment against

the Defendant in a sum equal to the value of said commissions according

to the contract entered into by the parties, costs, and grant Plaintiff such

other relief as the Court deems proper.

COUNT Ii

(Complaint for Accounting)

13. Plaintiff repeats and realleges all the allegations contained in

Paragraphs 1 through 12 of this Complaint as if set forth in full herein.

14. Plaintiff has insufficient information and belief to enable her

to allege the exact amount owed to Plaintiff in commissions.

24

i a

15. The amount of commissions paid Plaintiff by Defendant

from April, 1985, to December, 1986, totaled approximately $8,024.00.

Upon information and belief, Plaintiff's Commissions [sic] from January,

1987, to the present would have been $50,000.00.

16. An accounting from Defendant will be necessary in order to

determine the exact amount of commissions to which Plaintiff is entitled

under the contract, but Plaintiff is informed and believes and therefore

alleges that such accounting will disclose that Plaintiff is entitled to a

greater sum than that set forth under Paragraph 15.

WHEREFORE, Plaintiff prays this Court for an accounting by

Defendant to Plaintiff for the gross value of loads trucked by Laurel Hill

Trucking Company on the Ames Account and for judgment against the

Defendant for commissions due Plaintiff as a result of said accounting.

DATED: May 16, 1988

Vandermeulen, Goldman, Allen & O'Brian

61 Main Street, Room 62

Bangor, Maine 04401

Sr.

Perry O'Brian

Attomey for Defendant

25

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION , CV-88-212

DEIDRE CALURI )

Plaintiff AFFIDAVIT OF DEIDRE CALURI

IN OPPOSITION TO MOTION FOR

vs. SUMMARY JUDGMENT

NEIL RYPKEMA, d/b/a LAUREL,

HILL TRUCKING COMPANY )

Defendant )

1. My name is Deidre Caluri.

2. InFebruary, 1985, I contacted Neil Rypkema, in New Jersey,

by telephone and discussed with him the possibility of becoming the

Maine representative for Laurel Hill Trucking Company. At this time,

I told Mr. Rypkema that I wanted to contact various businesses in Maine

to see whether they needed trucking services. If I was successful in

obtaining contracts for Laurel Hill Trucking, my fee would be based on

a percentage of the total hauled under the contract.

3. On March 4, 1985, I called Ames Department Store in

Newport, Maine, to find out who I would talk to about shipping. They

referred me to Joe Nacky who worked at their regional headquarters in

Rocky Hill, Connecticut.

4. On March 8, 1985, I called Ames Department Store in Rocky

Hill, Connecticut, and spoke with Joe Nacky. He referred me to George

Bolduc, Assistant Traffic Manager. I asked Mr. Bolduc whether they

would be interested in having Laurel Hill Trucking do their hauling. He

asked me if we had trucks in Ohio, Pennsylvania and Massachusetts. I

told him yes. He then asked me to send him information on rates and

insurance.

5. I next drafted a letter to George Bolduc and sent it to Neil

Rypkema for his approval.

6. On March 14, 1985, I made two different phone calls to Neil

Rypkema at Laurel Hill Trucking to see if my letter met with his approval.

26

7. On April 3, 1985, my letter was sent to Mr. Bolduc in Rocky

Hill, Connecticut. A copy of that letter is attached hereto as Exhibit A.

8. After this letter was sent, I made several follow-up calls to

both Laurel Hill Trucking in New Jersey and Ames Department Stores in

Connecticut.

9. On April 16, 1985, I received a telephone call from George

Bolduc requesting a meeting at his office in Connecticut.

10. I made several telephone calls to confirm this meeting.

11. On April 23, 1985, I traveled to Rocky Hill, Connecticut and

met with George Bolduc. Neil Rypkema traveled to Connecticut from his

office in New Jersey.

12. On April 25, 1985, Neil Rypkema sent a letter to George

Bolduc setting forth additional information on trucking services.

13. In May, 1985, I made several calls to George Bolduc in

Connecticut to see whether he had reached any decision.

14. Laurel Hill Trucking subsequently began hauling for Ames

Department Stores. The first load was pulled for Ames on May 28, 1985.

15. On August 20, 1985, I received a telephone call from Laurel

Hill Trucking regarding the status of the Ames account. Apparently

business was slow and Laurel Hill wanted me to find out why.

16. I made several telephone calls to George Bolduc in Connecti-

cut and Laurel Hill Trucking in New Jersey to determine the status of the

Ames account. Soon after these calls business increased dramatically.

17. I made other calls periodically to Laurel Hill Trucking to

check on the status of the Ames account.

18. In addition to the Ames account, I contacted numerous

companies in Maine to see whether they needed trucking services which

Laurel Hill Trucking could provide. Neil Rypkema was made aware of

these contacts. These attempts did not result in any contracts.

19. On April 29, 1985, I met with Tom Golden of Georgia Pacific

in Woodland, Maine, regarding trucking services. A letter was sent by

me to Neil Rypkema of Laurel Hill Trucking for his approval before being

sent to Georgia Pacific. No contract for Laurel Hill Trucking resulted in

these contacts.

DATED: September 1, 1988

Deidre Caluri, Plaintiff

27

STATE OF MAINE

Penobscot, ss.

Personally appeared Deidre Caluri, and made oath that the above

statements are true to the best of her knowledge and belief.

Before me,

Notary Public

28

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, ss: CIVIL ACTION DOCKET NO. CV-88-212

DEIJDRE CALURI,

Plaintiff

AFFIDAVIT OF CORNELIUS S. RYPKEMA

VS.

NEIL RYPKEMA, d/b/

a LAUREL HILL

TRUCKING COM-

PANY.

Se ee a a a a a

Defendant

Comelius Rypkema, Defendant, being first duly sworn, deposes

and says as follows:

1. My name is Cornelius S. Rypkema.

2. I am the President of Laurel Hill Trucking Company of

Secaucas, New Jersey.

3. I have never personally entered into a contract with Deidre

Caluri.

4. Ihavenever personally done business in the State of Maine.

5. I have never personally committed a tortious act or caused

a tortious act to be done in the State of Maine.

6. I do not personally own, use or possess any real estate

situated in the State of Maine.

_ 7. IT have never personally contracted to ensure any person,

property or risk located within the State of Maine.

8. I have never personally contracted to supply services for

things within the State of Maine.

9. My domicile and residence is the State of New Jersey.

29

10. I am not acting as a director, manager, trustee or other

officer for the corporation incorporated under the laws of the State of

Maine or having its principal place of business within the State of Maine.

DATED: July 13, 1988

CORNELIUS S. RYPKEMA

STATE OF NEW JERSEY July 13, 1988

Hudson, ss

Personally appeared the above-named Cornelius S. Rypkema

and made oath that the foregoing Affidavit is true to the best of his

knowledge and belief.

Before me,

Notary Public/Attorney at Law

30