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IN THE SUPREME COURT OF OHIO
°^ ^w^^ ^^ ^;, -^ ,CASE NO. ^„ ^^ ^ k~^'^
COREY D. LUCASPlaintiff-Appellant,
-vs-
P& L PARIS CORP., et al.Defendant-Appellees.
ON APPEAL FROM THE OHIO SEVENTH APPEI,LATE DISTRICT,MAHONING COUNTY, CASE NO. 2oii MA ooio4
MEMORANDUM IN SUPPORT OF JURISDICTION OFPLAINTIFF-APPELLANr, COREY D. LUCAS
PAUL LV. FLOWERS, CO., L.P.A.
^0 Public Sq., Ste 3500
^leveland, Ohio 44113
;216) 344-9393
Fax: (216) 344-9395
Andrew S. Goldwasser, Esq. (#0068397)CrANO & GoLnwASSER, L.L.P.i61o Midland Buildingioi Prospect Avenue, WestCleveland, Ohio aaii^(216) 658-990o vFAX: (2i6) 6589920
Paul W. Flowers, Esq. (#0046625)[COUNSEL OF RECORD]PAUL W. FLOwERS Co., L.P.A.Terminal Tower, 35th Floor5o Public SquareCleveland, Ohio 44113(216) 344-9393FAX: (2i6) 344-9395
Attorneys for Plaintc;ff-Appellant,Corey D. Lucas
Eric N. Anderson, Esq.MEYER, DARRAGH, BUCKLER,BEBENEK & ECK, P.L.L.C.
U.S. Steel Tower, Suite 4850hnn CTran± C±r°et
Pittsburgh, PA 15219-6194
Attorney for Defendant Appellees,Thackray Crane Rental, Inc. andWilliam Poyner, Sr.
^r`..^..7 ^v'-'S^C. ^^ E ^
,a_^.^' r!'S^t :)&` ^.+io^v^!
'^C^^^ Ci^^^^_ ^^ ^^'{^^
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TABLE OF CONTENTS
TABLE OF CONTENTS ........ ............................................................................................ii
STATEMENT OF ISSUES OF PUBLIC AND GREAT GENERAL IMPORTANCE..........1
STATEMENT OF THE CASE ............................................................................................2
STATEMENT OF THE FACTS ..........................................................................................3
ARGUMENT ..................................................................................................................... g
PROPOSITION OF LAW I: A PLAINTIFF IS ONLY REQUIRED TOESTABLISH A PIZIMA FACIE CASE FOR PERSONAL JURISDICTIONOVER A NON-RESIDENT DEFENDANT UNLESS AN EVIDENTIARYHEARING IS HELD DURING WHICH THE TRIAL JUDGE IS ABLE TOASSESS THE DEMEANOR OF THE WITNESSES ....................................................g
PROPOSITION OF LAW II: LONG-ARM JURISDICTION CAN BEESTABLISHED, AND PROCEDURAL DUE PROCESS CAN BESATISFIED, WHEN A FOREIGN CORPORATION TRANSACTSBUSINESS WITH AN OHIO COMPANY EVEN WHILE REMAININGOUTSIDE THIS STATE'S BOUNDARIES . ...............................................................12
CONCLUSION ................................................................................................................15
CERTIFICATE OF SERVICE ..........................................................................................16
APPENDIX
r'.nnrt nf Anripal^ Tµd`rm°1it dated ^.C7epte1111,^JCr 21, 2012 0001......__ _ t,t,.,.x. s .......................................
Court of Appeals Opinion dated September 2i, 2oi2 .......................................... 0003Common Pleas Judgment Entry dated June 20, 2012 ...................................... oooi2
JL W. rLOWERS, CO., L.P.A.
'ublic Sq., Ste 3500
veland, Ohio 44113
i)344-9393
: (216) 344-9395
77
(;
STATEMENT OF ISSUES PUBLIC AND GREAT GENERAL IMPORTANCE
This appeal presents this Court with an opportnnity to address significant issues
of procedure that arise when a non-resident defendant challenges personal jurisdiction
in an Ohio court through Civ. R. 12(B)(2). It should go without saying that a fair and
reasoned resolution of the motion requires the trial court to identify and apply the
appropriate standard of review. This preliminary determination governs not only how
the parties are to proceed with their arguments and evidentiary submissions, but also
the legal standards that will govern the court's ultimate ruling.
As will be developed in this Memorandum, the Seventh District adopted a
heightened burden of proof and a deferential standard of review that was inappropriate
under the circumstances. Apx. ooo^, 11i5. Because a true evidentiary hearing was never
held during which witnesses and exhibits were to be presented, Plaintiff-Appellant,
Corey D. Lucas ("Lucas"), should only have been required to present a prima facie case
for extending personal jurisdiction over Defendant-Appellee, Thackray Crane Rental,
Inc. ("Thackray"). In the event that such a demonstration was successful, and
Defendant was dissatisfied with the result, the issue could always be revisited once
discovery was complete through a motion for summary judgment. But because an
evidentiary hearing was never scheduled or held, Lucas submitted only that which was
necessary to meet the de minimis standard. In addition to legal argument, the trial
judge was supplied only with one deposition transcript and supporting exhibits.
In the Judgment Entry granting Defendants' Motion, the trial judge explicitly
noted that:
^'^'^ In lieu of an evidentiary hearing, this Court heard oralarguments on the motion to dismiss and response on May 9,2®ii.
wL W. FLOwERS, Co., L.P.A.
Public Sq., Ste 3500
eveland, Ohio 44113
^6) 344-9393
x: (216) 344-9395
Apx. oooi,3. While the judge briefly noted that only a prima facie demonstration was
required, the analysis that followed clearly indicates that a more stringent evidentiary
^
^a
standard was being imposed. Apx. oooz,3-2o.
The Seventh District compounded the error by proceeding to hold that:
In this case, the trial court held a hearing on the motion.Therefore, appellant was required to offer proof by apreponderance of the evidence.
Apx.ooo7, 1/ zg. There is a substantial difference between an "oral" and "evidentiary"
hearing that the panel did not appear to appreciate. Since an evidentiarv hearing had
never been scheduled or held, Lucas was entitled to expect that only a cursory
demonstration of personal jurisdiction would be necessary at that early stage of the
lawsuit. Because the heightened standard was imposed only after the Motion had been
briefed and argued, Plaintiff suffered substantial prejudice.
If the Lucas precedent is allowed to stand, the same manifestly unfair episode
will undoubtedly be repeated again and again. The Seventh District's opinion will be
routinely cited for the proposition that the preponderance of the evidence standard
applies whenever any kind of "hearing" is held, regardless of whether the trial court is
actually afforded the opportunity to evaluate live witnesses. In order to rectify the
substantial confusion that is sure to follow, this Court should take this opportunity to
examine these issues of public and great general importance.
STATEMENT OF THE CASE
This personal injury action arises from a construction site accident that occurred
^uL W. FLOwExs, Co., L.P.A.
I Public Sq., Ste 3500
feveland, Ohio 44113
16)344-9393
ix: (216) 344-9395
in Pottstown, Pennsylvania. Plaintiff-Appellant, Corey D. Lucas ("Lucas'), an Ohio
resident and worker at the construction site, has asserted claims against Defendant-
Appellees, Irwin & Leighton, Inc., P&L Paris Corp. ("P&L") and Thackray Crane Rental,
Inc. ("Thackray"). 1Z. 42, Plainizff's 1^'irstAmended Complaint. Irwin & Leighton, Inc., a
Pennsylvania corporation, was the general contractor of the construction project. Id. at
1^1/ 3, 7 P&L, an Ohio corporation, was Lucas' employer. Id. at 1/1J 3, 7 Thackray, a
Pennsylvania corporation, provided a crane and crane operator to the construction site,
`^
^^
pursuant to a contract it had with P&L. Id. at 1J1/,3, 7.
P&L and Irwin & Leighton, Inc. have accepted the jurisdiction of the trial court
and answered Lucas' First Amended Complaint. R. ,38, Answer and Affirmative
Defenses of Defendant Irwin & Leighton, Inc. to Plaintifj's First Amended Complaint;
R. ,39, Answer of Defendant P&L Paris Corp. to Plainti,ff's First Amended Complaint.
Thackray, however, entered a limited appearance and filed a Motion to Dismiss for lack
of personal jurisdiction, relying upon inadmissible evidence contained in the Affidavit of
Benjamin Wagner, Thackray's "Risk Manager." R. 5i, Motion of Defendant Thackray
Crane Rental Inc. to Dismiss Pursuant to Civ.R. z2(B)(2); Id. at pp. 6-^, Affidavit of
Benjamin Wagner.
Following limited discovery on the issue of jurisdiction, Lucas filed a Brief in
Opposition to Thackray's Motion to Dismiss, which was supported by separate
appendices of evidentiary materials. R. 94, Plaintif,^'s Motion to Strike Affcdavit of
Benjamin Wagner; R. 95, Plaintffj's Evidentiary Submission in Support of
Jurisdiction; R. zo4, Plaintc;ff's Supplemental Evidentiary Submission in Support of
Jurisdiction; R. 95, Plaintt; ff's Evidentiary Submission in Support of Jurisdiction, at
App. 2, Wagner Dep., 3/i6/lz, pp. 3-4. Thackray did not file a reply brief. An oral
hearing was conducted, whereupon the trial court granted Thackray's Motion for lack of
personal jurisdiction. This appeal then followed.
STATEMENT OF THE FACTS
I. LUCAS' INJURIES AROSE OUT OF THACKRAY'S OHIO BUSINESSTRANSACTIONS.
On November 20, 2008, Lucas was working as a construction worker for his Ohio
av[. W. FLOwExs, Co., L.P.A.
I Public Sq., Ste 3500
leveland, Ohio 44113
16)344-9393
ix: (216) 34¢9395
employer, P&L, at the Upland Square Shopping Center in Pottstown, Pennsylvania. R.
42, Plainttff's First Amended Complaint, at 1i 6. The general contractor of the
construction project, Defendant Irwin & Leighton, engaged P&L as its subcontractor to
perform certain construction services at the site. Id. at p. 2, ^/^ 3, ^; R. zz2, Amended
3
. +e
Judgment Entry granting Motion of Defendant Thackray Crane Rental Inc. to Dismiss
Pursuant to Civ.R. z2(B)(2), at oooz96. P&L, in turn, contracted with Thackray to
provide construction support services, including equipment and personnel.
On the day of his injury, Lucas was positioned more than twenty feet above
ground level on unsecured steel girders, without fall protection. R. 42, Plaintlff's First
Amended Complaint, at ^/^/ 8, 9. At the direction of P&L, a crane operator provided by
Thackray released a bundle of steel decking, causing the area upon which Lucas was
standing to give way. Id. at 1/^ io, 28, 3z; Plaintif, f's Evidentiary Submission in Support
of Jurisdiction, at App. 5, THACKRAYoooo8g
ground below and was seriously injured. Id. at ^/zl.
Lucas fell more than 2i feet to the
The incident arose out of the contractual relationship between Thackray and
P&L. Indeed, the contracts between Thackray and the Ohio corporation specifically
contemplated that personal injury might result from Thackray's performance under
them.
The contracts read, in relevant part:
[P&L] agrees to defend, hold harmless, and indemnify THACKRAY ...against all loss, damages, costs, exuense, and le^al feec THArKR AV ,,,,.,-v-- ----- ----^^.^^.^^i iiiuyincur or become liable for by reason of personal injury or propertydamage, including personal injury or property damage caused or alleged tohave been caused by the negligence of THACKRAY . .. sustained byany person, including [P&L's] employees . . . .
<<n. W. FLOwaxs, Co., L.P.A.
Public Sq., Ste 3500
eveland, Ohio 44113
'.6) 344-9393
K: (216) 344_9395
R• 95, Plaintlffs Evidentiary Submission in Support of Jurisdiction, at App. 5,
TPiACKRAYoooo8g, THACKRAYooozo2, THACKRAYoooi73; Id. at App. 2, Wagner
Dep., 3/16/il, p. 39-40• As the above language indicates, incidents such as the one
involved here, were contemplated as part of the contractual relationship between
Thackray and an Ohio company.
II. THACKRAY HAS REGULARLY AND CONTINUOUSLY TRANSACTEDBUSINESS IN OHIO OVER MANY YEARS WITH MULTIPLE OHIOCUSTOMERS.
The overwhelming evidence reveals that Thackray has regularly and continuously
`i'
il
transacted business with at least nine different Ohio entities over the course of many
years. R. 95, Plainttffs Evidentiary Submission in Support of Jurisdiction; R. io4,
Plaintiffs Supplemental Evidentiary Submission in Support of Jurisdiction. In fact,
there is evidence that Thackray was working with one of these entities (Cleveland
Marble Mosaic Co.) as far back as 1999• R• 95^ Plaintiff's Evidentiary Submission in
Support of Jurisdiction, at App. 21, CMMooo8. And, it has regularly transacted
business with another one of these entities (Precast Services, Inc.) since 2ooi. R. 104,
Plaintc;ffs Supplemental Evidentiary Submission in Support of Jurisdiction, at
PRECASTooo2-0003; R. 95, Plaintif,^'s Evidentiary Submission in Support of
Jurisdiction, atApp. 20, ROTHooz8-oo22.
Thackray's business transactions with its Ohio customers have resulted in well
w^. W. Ftowans, Co., L.P.A.
1 Public Sq., Ste 3500
leveland, Ohio 44113
16)344-9393
ix: (216) 344-9395
over a hundred contracts (all enforceable here in Ohio), resulted in more than
eighty invoices and billing statements being sent to Ohio, and obligated these
Ohio entities to pay Thackray at least $349^572•5g• R• 95^ Plaintzffs Evidentiary
Submission in Support of Jurisdiction, at Apps. 5, 11-18; R. io4, Plaintiff's
Supplemental Evidentiary Submission in Support of Jurisdiction, at
THACKRAYooo4li, THACKRAYooo432-000433, THACKRAYooo440-000449,
THACKRAYooo45i-ooo453, T^4CKRAYooo466-000495, THACKRAYooo5o4-
ooo5lg, THACKRAYooo559-000607; R. 95, Plaintif^'s Evidentiary Submission in
Support of Jurisdictton, at App. 2, Wagner Dep., 3/z6/lY, pp. 24; R. 95, Plaint<^'s
Evidentiary Submission in Support of Jurisdiction, at Apps. 6-^, 11-18; R. io4,
Plaintif, f's Supplemental Evidentiary Submission in Support of Jurisdiction, at
THACKRAYooo376-000410, THACKRAYooo4i6-ooo4gr, THACKRAYooo438-
000439, THACKRAYooo450, THACKRAYooo458-00046,5, THACKRAYoo0500-
000503, THACKRAYooo5Y9-ooo558, ARE o002, AMERICAN U o002-0020,
PRECASTooo4-00015. Thackray's contacts with Ohio cannot credibly be characterized
5
^ ^q
as "random," "fortuitous," and "resulting from the unilateral activities of third parties."
These Ohio contacts do not even take into account all of the mailings, telephone
calls, faxes, and other communications Thackray directed to Ohio as a regular part of its
Ohio business transactions. While Thackray may have provided equipment and services
to its Ohio customers in Pennsylvania and other locations outside of Ohio, Thackray
admits that each of its business transactions with Ohio customers would have included a
multitude of communications directed to Ohio. Indeed, Thackray established customer
identification numbers and maintained a physical and electronic file for each of its Ohio
customers, cataloging its customers' addresses, telephone numbers, fax numbers,
emails, and billing contact information. R. zo4, Plaintc;ff's Supplemental Evidentiary
Submission in Support of Jurisdiction, at THACKRAYooo368, THACKRAYooo4z2,
THACKR.AYooo434, TI^4CKRAYooo454^ T^CKRAYooo496, THACKRAYooo5z4; R.
95, Plaintc; ff's Euidentiary Submission in Support of Jurisdiction, at App. 2, Wagner
Dep., g/z6/zz, pp. 48-49. Thackray used this information to stay in regular contact with
its Ohio customers.
As Risk Manager Benjamin Wagner ("Wagner") testified during his deposition,
U^ W. FtowExs, Co., L.P.A.
Public Sq., Ste 3500
^veland, Ohio 44113
6) 344-9393
;: (216) 344_9395
Thackray would customarily provide job quotes to its customers, confirm orders, and
otherwise communicate with them to consummate and complete business deals. R. 95,
Plainh;ff's Evidentiary Submission in Support of Jurisdiction, atApp. 2, Wagner Dep.,
,3/16/zz, pp. zz-z8, 35-40. Prior to performing a particular iob, a Thackray sales person
or estimator provides the customer with either a verbal quote or written proposal. Id. at
PP• z3, z5-i6, 37 These proposals are typically transmitted to the customer at the
customer's principal place of business. Id.; R. 95, Plaintif^'s Euidentiary Submission in
3'upport of Jurisdiction, at APP• 3^ Defendant Thackray Crane Rental's Answers and
Responses to Discouery Propounded by Plainttff, THACKRAYoooo7 00009. In this
case, the written proposal would have been sent to P&L's office in Youngstown, Ohio. R.
6
w ' ^)
95, Plainttffs Evidentiary Submission in Support of Jurisdiction, at App. 2., Wagner
Dep., ,3/z6/zz, pp. z6-z7.
After a proposal is accepted, a written agreement, in the form of a job or rental
ticket, is prepared. Id. at pp. 37 & 4g. Each agreement identifies the customer and
specifies the services that Thackray will provide. Id. atApp. 5. Moreover, after the job
is performed, Thackray generates and delivers to its customer's principal place of
business invoices and statements to be paid. Id. at App. 2, Wagner Dep., 3/16/zz, pp.
17 zH. Thackray regularly contacts its customers in Ohio to collect on these invoices and
statements. R. zo4, Plaintcffs Supplemental Evidentiary Submission in Support of
Jurisdiction, at THACKRAYooo37i-ooo375, THACKRAYooo4z5, THACKRAYooo437,
THACKRAYooo457, THACKRAYooo499^ THACKRAYooo5z5-ooo518.
III. THACKRAY'S BUSINESS TRANSACTIONS IN OHIO WITH P&LPARIS CORP., LUCAS' EMPLOYER, ARE SUBSTANTIAL ANDUNREMITTING.
Likewise, Thackray's business transactions with Lucas' Ohio employer, P&L, are
a^n. W. FLOwExs, Co., L.P.A.
1 Public Sq., Ste 3500
leveland, Ohio 44113
16)344-9393
ix: (216)344-9395
substantial and unremitting. Thackray has been transacting business with P&L
since 2005 or 2006, and it has entered into at least 95 contracts with P&L since
April of 200^. R. 95, Plainttffs Evidentiary Submission in Support of Jurisdiction, at
App. 2, Wagner Dep., 3/i6/iz, p. 20; Id. atApp. 5; Id. atApp. 2, Wagner Dep., 3/16/11,
PP• 39^ 43• ^ackray has also conducted operations with P&L relative to at least 35
separate jobs since May of 200^, and Thackray would sometimes initiate contact with
P&L to procure work. Id. at App. zo, THACKRAYooo59; Id. at App. 2., Wagner Dep.,
g/16/iz, Exhibit 2, pp. 44-47^ Id. at App. 2, Wagner Dep., ,3/i6/lz, pp. 33-34• While
only three P&L job quotes have been produced by Thackray, the deposition testimony of
Mr. Wagner suggests that many written quotations have been sent to PRzL in Chio
relating to these jobs. Id. at App. 3, THACKRAYoooo^00009; Id. at App. 2, Wagner
Dep., ,3/16/^z, pp. z3, z6, ,37 At a minimum, though, Thackray would have telephoned
7
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P&L in Ohio and obtained its acceptance of the quote before providing any services. Id.
at App. 2, Wagner Dep., g/z6/zz, p. z6. In other words, Thackray contacted P&L in
Ohio at least 35 times to consummate these business deals (prior to executing its
contracts with P&L).
Thackray also sent at least 23 inUOices to P&L in Ohio for services rendered
from April3o, 200^ through July 15, 2oio (assuming that each invoice was sent to P&L
only once), totaling $202,507.27. R. zo4, Plaintiffs Supplemental Evidentiary
Submission in Support of Jurisdiction, at THACKRAYooo378-000409; R. 95,
Plaintcffs Evidentiary Submission in Support of Jurisdiction, at App. 6,
THACKRAYoooo44-000045, THACKRAYoooo46-000047, THACKRAYooooSi-
00005,3, THACKRAYoooo54, THACKRAYoooo55. P&L sent payments relating to
these invoices from its Ohio office to Thackray in Pennsylvania. R. 95, Plaintiffs
Evidentiary Submission in Support of Jurisdiction, atApp. 2, Wagner Dep., ,3/z6/rz, p.
40. Thackray also sent to P&L, in Ohio, nine statements relating to past due
amounts under these invoices (these invoices were sent from August i6, 200^ through
April 25, 2oii). Id. at App. ^, THACKRAYoooo2^, THACKRAYoooo30,
THACKRAYoooo3,3, THACKRAYoooo35, THACKRAYoooo36, THACKRAYoooo37,
THACKRAYoooo38, and THACKRAYoooo43; R. zo4, Plainttff's Supplemental
Evidentiary Submission in Support of Jurisdiction, at THACKRAYooo,376-000,377 As
of April i, 2009, Thackray's statement to P&L reflected an amount due and owing of
$85,8i9.68. R. 95, Plaintiffs Evidentiary Submission in Support of Jurisdiction, at
App. ^, THACKRAYoooo33•
As part of its collection efforts to recover amounts due under these statements
avL W. FLOwExs, Co., L.P.A.
I Public Sq., Ste 3500
leveland, Ohio 44113
16)344-9393
ix: (216) 344-9395
and invoices, Thacl^ray dlrected more than aoo comrea.una.caiaons to P^ an
Ohio from April of 2008 through March of 2oii, including emails, facsimiles, and
telephone calls. R. zo4, Plaintiffs Supplemental Evidentiary Submission in Support of ^
8
Jurisdfction, at TFIACKRAYooo37Y-ooo375. On May i3, 2oio, P&L executed a
promissory note sent by T'hackray to Ohio and agreed to pay Thackray
$24^574•18 in installments of $50o per month. R. 95, Plaintzff's Evidentiary
Submission in Support of Jurisdiction, at App. 8; Id. at App. 2, Wagner Dep., 3/r 6/li,
p. 62. Mr. Wagner testified at deposition that the note was accepted by Thackray in lieu
of commencing a collection lawsuit against P&L. Id. at App. 2, Wagner Dep., g/i6/Yi,
pp. 61-62. The note was signed in Ohio by Patrick Paris on behalf of P&L and notarized
in Ohio. Id. at App. 8. Surely, the note is enforceable here in Ohio and, should a
dispute arise, Thackray could reasonably anticipate being hauled into an Ohio court, just
as it could under any of its 95+ contracts with the Youngstown business. On Apri127,
2oio, Thackray sent an email to P&L in Ohio referring to the note and demanding
payment. Id., atApp. 9. As of an Apri125, 2oii statement to P&L, P&L apparently still
owed Thackray $17,392.8i. R.104, Plainttffs Supplemental Evidentiary Submission in
Support of Jurisdiction, at THACKRAYooo376-THACKRAY377
ARGUMENT
Plaintiff's two Propositions of Law will be separately addressed in the remainder
of this Memorandum.
PROPOSITION OF LAW I: A PLAINTIFF IS ONLYREQUIRED TO ESTABLISH A PRIMA FAC/E CASE FORPERSONAL JURISDICTION OVER A NON-RESIDENTDEFENDANT UNLESS AN EVIDENTIARY HEARING ISHELD DURING WHICH THE TRIAL JUDGE IS ABLE TOASSESS THE DEMEANOR OF THE WITNESSES.
The trial court in this case did not hold an evidentiary hearing on Thackray's
au[. W. FLOwsRS, Co., L.P.A.
1 Public Sq., Ste 3500
teveland, Ohio 44113
16) 344-9393
ix: (216) 344-9395
Motion to Dismiss for lack of personal jurisdiction. Apx. oo® . In the absence of such a
proceeding, the nonmoving party need only make a prima facie case to demonstrate
jurisdiction in order to defeat a motion to dismiss. Interior Servs., Inc. v. Iverson, lst
Dist. No. C-o2o501, 2oo3-Ohio-i187, 2003 W.L. 1093982, ¶ 7(Mar. i4, 2003). "If
plaintiff produces evidence from which reasonable minds could find personal
9
jurisdiction, the court must refuse dismissal, absent an evidentiary hearing." Arrow
Machine Co., Ltd. v. Array Connector Corp., llth Dist. No. 2oo8-L-16i, 2oo9-Ohio-
1439^ 2oog WL 8o6gi^, ¶ 33, (Mar. 2^, 2009), quoting Diversa, Inc. v. Pennsylvania
Substance Abuse Info. Ctr., ii^ Dist. No. 95-P-oo28, i996 WL 200629, at p. ^13 (Mar.
29^ 1996). While the nonmoving party bears the ultimate burden of proving jurisdiction
by a preponderance of the evidence, he need not do so until trial or such time as the
court orders an evidentiary hearing.
It is evident that the Seventh District committed an error that skewed the entire
course of the proceedings. The more stringent "preponderance of the evidence"
standard was imposed upon Plaintiff only after the Motion to Dismiss had been briefed
and argued. Apx. ooo^, ^ i5. Only one deposition and supporting materials had been
submitted because Plaintiffs counsel had been under the logical impression that just a
II prima facie demonstration was necessary. The trial judge had taken care to explain in
his ruling that an evidentiary hearing had never been held as only oral argument had
been ordered. Apx. 000^3.
The decision rendered below cannot be reconciled with a number of sound
^uL W. FLOwERS, Co., L.P.A.
I Public Sq., Ste 3500
leveland, Ohio 44113
16) 344-9393
a: (216) 344-9395
rulings from other courts. In Sparks v. First Miami Ins. Co., 6th Dist. No. L-9i-222,
^992 W.L. io5o2^ (May 15, 1992), the plaintiff appealed a ruling of the trial court
dismissing her complaint for alleged lack of personal jurisdiction over the defendants.
The defendants asserted that they were Florida companies over which the Ohio court
lacked jurisdiction. Importantly, the trial court conducted an oral hearing prior to
granting dismissal, but an evidentiary hearing was never scheduled or held. Id. at p. ^2.
The appellate court observed, "[w]here a court determines personal jurisdiction without
an evidentiary hearing, `the plaintiff need only make a prima facie showing of
jurisdiction to withstand the motion to dismiss."' Id. (citation omitted). The only issue
in Sparks was whether the due process requirement for conferring personal jurisdiction
io
! was satisfied, since the parties agreed that the long-arm statute and civil rules applied.
Because the defendants issued an automobile insurance policy that contemplated
coverage when an insured drove in Ohio, the court concluded that defendants
purposefully availed themselves of the Ohio forum. Id. at p. ^ 3. Moreover, the
defendants had issued an automobile policy, contemplating that their insured could be
driving in other states, besides Florida. It was therefore reasonable that they would
have to defend themselves in Ohio. Id. at p. ^4. Thus, absent an evidentiary hearing,
the plaintiff had sufficiently pled facts to establish personal jurisdiction. Id. See also
Erie Shore Industs., Inc. v. Cumberland Steel, Inc., 8th Dist No. 57053, 199o W.L. 7522i,
p. *3 (June 7, ^990) ("Absent an evidentiary hearing, a review of the affidavits attached
to the motion to dismiss and the brief in opposition ... results in a prima facie showing
of in personam jurisdiction. ..."); Floyd P. Bucher & Sons, Inc. v. Spring Valley
Architects, Inc., 85 Ohio Misc.2d 5, 683 N.E.2d 875 (Lucas Cty. i996).
In contrast to oral arguments, scheduling an evidentiary hearing would have
served notice that all relevant evidence had to be submitted for final adjudication. Since
the trial judge would have been afforded an opportunity during that proceeding to
scrutinize and even question the witnesses, a deferential standard of review would have
been due upon appeal. This Court has e^plained that:
The underlying rationale of giving deference to the findingsof the trial court rests with the knowledge that the trial judgeis best able to view the witnesses and observe theirdemeanor, gestures, and voice inflections, and use theseobservations in weighing the credibility of the profferedtestimony.
arn. W. FLOwExs, Co., L.P.A.
^ Public Sq., Ste 3500
leveland, Ohio 44113
16) 344-9393
ix: (216) 344-9395
Seasons Coal Co., Inc. v. City of CleUeland, io Ohio St.3d 77, 80, 461 N.E.2d 1273, 1276
(1g84); see also Myers v. Garson, 66 Ohio St.3d 6io, 6i5^ 1993-Ohio-9, 6i4 N.E.2d 742,
745•
Here, the trial judge was furnished with legal briefing, a deposition transcript,
and documentary exhibits. His vantage over the proceedings was no better than that of
ii
the appellate court (or even this Court). The deferential standard that was imposed was
thus unwarranted.
Disputes over personal jurisdiction are commonplace in a commercially active
state such as Ohio, and these same issues will be arising regularly into the indefinite
future. Accordingly, this Court should accept this opportunity to definitively establish
the controlling standard of review that will apply when a dismissal is sought under
Civ.R. i2(B)(2).
PROPOSITION OF LAW II: LONG-ARM JURISDICTIONCAN BE ESTABLISHED, AND PROCEDURAL DUEPROCESS CAN BE SATISFIED, WHEN A FOREIGNCORPORATION TRANSACTS BUSINESS WITH AN OHIOCOMPANY EVEN WHILE REMAINING OUTSIDE THISSTATE'S BOUNDARIES.
A. STANDARDS FOR PERSONAL JURISDICTION
Had the Seventh District identified and applied the correct standard of review,
logic would dictate that the untenable dismissal order had to be reversed. This Court
has adopted a two-step process for determining when personal jurisdiction over a non-
resident has been established:
First, the court must determine whether the ^tate_'^ "lnn^-arm" statute and applicable civil rule confer personaljurisdiction, and, if so, whether granting jurisdiction underthe statute and the rule would deprive the defendant of theright to due process of law pursuant to the FourteenthAmendment to the United States Constitution. [footnotesand citations omitted].
U.S. Sprint Comm. Co., Ltd. Ptnrshp. v. Mr. K's Foods, Inc., 68 Ohio St.3d 18i,183-i84,
1994-Ohio-5o4, 624 N.E.2d 1048,1o5i.
Beginning with the first part of the controlling test, the General Assembly has
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extended the jurisdiction of Ohio courts to reach individuals or business entities who
have been, whether directly or through an agent:
(i) Transacting any business in this state;
(2) Contracting to supply services or goods in this state;
P2
^^^
R.C. 2,3o^.g82(A); see also Civ. R. 4.3(A)(i) &(2). These decidedly broad terms
encompass a wide range of business activities. Kentucky Oaks Mall Co. v. Mitchell's
Formal Wear, Inc., 53 Ohio St.3d 73^ 75, 559 N.E.2d 477, 480 (i99o).
With respect to the second step in the test, plaintiffs must also meet federal
constitutional standards. Under the Fourteenth Amendment to the United States
Constitution, due process requires that a court hold valid personal jurisdiction over a
defendant before a judgment may issue. World-Wide Volkswagen Corp, v. Woodson,
444 U.S. 286, 29^, 10o S. Ct. 559^ 564, 62 L. Ed.2d 490 (i98o). A"substantial
connection" to the forum state is necessary. Burger King Corp. v. Rudzewicz, 47i U.S.
462, 475, l05 S. Ct. 2174, 2184, 85 L. Ed.2d 528 (1g85); Sherry v. Geissler U. Pehr
GmbH, loo Ohio APP.3d 67, 76; 651 N.E.2d i383, i388 (8th Dist. 1995)• ^e primary
issue for consideration is whether the "contacts of the [defendant] with the state of the
forum *^^ make it reasonable, in the context of our federal system of government, to
require the [defendant] to defend the particular suit which is brought there."
International Shoe Co. v. State of Washinqton, Office of Unemnlou. Comn_ ^ ^_ .. . .,.. ., - -i - :, - - - - - r - --
Placement, 326 U.S. 310, 317, 66 S. Ct. i54,158, 9o L. Ed. 95 (1945)•
B. DEFENDANT'S CONNECTIONS TO OHIO
In this case, the trial court erroneously concluded that Thackray has not
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transacted business in Ohio. First, the trial court improperly found: "[T]here is no
evidence that there was any contract created "in" Ohio between Thackray Crane and
P&L." Apx. 000^5. This finding is misguided because Ohio law does not require
contracts to be created "in" the forum state, or even a contract to be created at all, in
order to invoke Ohio jurisdiction. Nevertheless, Lucas produced well over a hundred of
Thackray's contracts with nine Ohio entities, all of which are all enforceable in Ohio.
Second, the trial court mistakenly concluded that there is no evidence that
13
Thackray Crane solicited business in Ohio. Yet the evidence, when properly construed,
indicates that it "occasionally" called its customers in Ohio to solicit business for more
than a decade and that it may have even called Lucas' employer, P&L, on this specific
occasion to obtain the sub-subcontract work that led to Lucas' injuries.
Third, the trial court erred when it disregarded and failed to analyze Thackray's
actual contacts with Ohio. It did so because Thackray "contracted with P&L and other
Ohio entities ... to supply services or equipment" outside of Ohio. Apx. ooor5. The
I law, however, does not require services to be rendered in Ohio for jurisdiction to exist,
nor does it permit a court to disregard a non-resident defendant's actual contacts with
Ohio because the defendant provided services extraterritorially. Yet, that is exactly what
the trial court did in this case. Moreover, the trial court erroneously concluded that the
"only communication between Thackray and the Ohio companies was by mail or
possibly a telephone conversation and primarily pertained to invoices and the payment
of the same." This conclusion fails to properly evaluate the significance of Thackray's
Ohio communications and is in conflict with the evidence, which, when properly
construed in Lucas' favor, reveals literally hundreds of written and oral communications
from Thackray to its customers here in Ohio over many years.
The trial court also stated that there is no legal support to invoke jurisdiction for
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transacting business in Ohio "where the complaint arises from an accident that occurred
outside of Ohio ...." Apx. 00016. The trial court is mistaken about this as well. As the
Ohio Supreme Court declared in Perkins v. Benguet Consol. Mining Co., i58 Ohio St.
145, 10^ N.E.2d 203 (^952), para. i of the syllabus: "Federal due process neither
prohibits nor compels the taking of jurisdiction by the courts of a state in an action
against a foreign eorporation where the cause of action did not arise in that state or
relate to the corporation's activities therein." The Court further held: "Where
jurisdiction is not limited by statute to cause[s] of action arising within the state, an
14
action on a transitory cause may be maintained in the courts of this state by a
nonresident against a foreign corporation doing business here, although the cause did
not arise here or relate to the corporation's business transacted here." Id. at paragraph
2 of the syllabus. The federal guarantee of due process thus did not prevent Thackray
from being required to defend itself in an Ohio courtroom.
After viewing the pleadings and documentary evidence in a light most favorable
to Lucas, Thackray has more than enough Ohio contacts to reasonably conclude that
T'hackray "transacted business" in Ohio under the broad language contained in Ohio's
long-arm statute and Civ.R 4.3. Each of the jurisdictional facts detailed below must be
construed in Lucas' favor and analyzed in their totality under the jurisdictional test -
not weighed in Thackray's favor, viewed in isolation, or otherwise ignored as the trial
court has inappropriately done. When a proper analysis is conducted, the totality of the
evidence leads to the inescapable - certainly reasonable - conclusion that jurisdiction is
proper over Thackray. Therefore, the law requires a finding of jurisdiction over
Thackray at this early stage of the litigation, at least until the evidence can be weighed
during a properly scheduled evidentiary hearing.
CONCLUSION
Given the issues of public and great general importance that are at stake in this
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proceeding, this Court should accept jurisdiction over the two Propositions of Law and
establish a uniform standard of review for motions to dismiss on the basis of personal
jurisdiction that can be applied on a statewide basis.
Respectfully Submitted,
And^rew GoCfwasser(per au^nor^^)Andrew S. Goldwasser, Esq. (#0068397)^;IANO & ^iOLDWASSER, L.L.P.
w^
Paul W. Flowers, Esq. (#ooq.6625)[COUNSEL OF IZECORD]
PAUL W. FLOwERS Co., L.P.A.Attorneys for Plaintiff-Appellant,Corey D. Lucas
i5
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Memorandum has been sent by regular
U.S. Mail, on the 5th day of Novernber, 2012 to:
Eric N. Anderson, Esq.MEYER, DARRAGFI, BUCKLER,
BEBENEK & ECK, P.L.L.C.
U.S. Steel Tower, Suite 485060o Grant StreetPittsburgh, PA i52^9-6^94
Attorney for Defendant Appellees,Thackray Crane Rental, Inc. andWilliam Poyner, Sr.
•• ^ ^
Paul W. Flowers, Esq., (#0046625)PAUi, W. FLOwExs Co., L.P.A.
Attorneyfor Plaintiff-Appellant,Corey D. Lucas
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leveland, Ohio 44113
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16
NOTICE OF JUDGMENT
September 24, 2012
DEAR SIR OR MADAM:
YOU ARE HEREBY NOTIFIED THAT JUDGMENT HAS BEEN
RENDERED IN COUIRT OF APPEALS CASE NUMBER 2011 MA 00104
COREY D LUCAS
PLTFF(S)/APPELLANT
ON SEPTEMBER 21, 2012
-vs- P& L PARtS CORP et al
DEFT(S)/APPELLEE
ANTHONY VIVO, CLERK OF COURTSBY ^A I nrant
DEPUTY CLERK
Apx. 0001
SEP 2 1 2012 :
F^^^^ l ^^
STATE OF OHIO
MAHONING COUNTY
IN THE COURT OF APPEALS OF OHIO))) SS:
COREY D. LUCAS,
PLAI NTI FF-APPELLANT,
V.
P&L PARfS CORP., ET AL.,
DEFENDANTS-APPELLEES
SEVENTH DISTRlCT
CASE NO. 11 MA 104
JUDGMENT ENTRY
For the reasons stated in the opinion rendered herein, appellant's sole
assignment of error is without merit and is overruled. It is the final judgment and order
of this Court that the judgment of the Comrnon Pleas Court, Mahoning County, Ohio, is
affirmed.
Costs taxed against appellant.
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII^IIIIIIIIIIIIII^III^IIUI^N ^ ^"""00080B47114
JUGENT
^^
JUDGES.
.--_.^ ^^ I
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Apx.
[Cite as Lucas v. P& L Paris Corp., 2012-Ohio-4357.]STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
COREY D. LUCAS,
PLAI NTI FF-APPELLANT,
V.
P&L PARIS CORP., ET AL.,
DEFENDANTS-APPELLEES.
CHARACTER OF PROCEEDINGS
CASE NO. 11-MA-104
OPINION
Civil Appeal from Court of CommonPleas of Mahoning County, OhioCase No. 09CV4426
JUDGMENT:
APPEARANCES:For Plaintiff-Appellant
For Defendant-AppeiieeThackray Crane Rental, Inc.
JUDGES:
Hon. Gene DonofrioHon. Cheryl L. WaiteHon. Mary DeGenaro
Affirmed
Atty. Andrew S. GoldwasserAtty. Michael Schmeltzer1610 Midland Building101 Prospect Avenue, WestCleveland, Ohio 44115
^I I^__J_^__.^iHtty. Eric i^. ^ ►naers^nU.S. Steel Tower, Suite 4850600 Grant StreetPittsburgh, PA 15219
Dated: September 21, 2012
Apx. 0003
[Cite as Lucas v. P& L Paris Corp., 2012-Ohio-4357.]DONOFRIO, J.
{¶1} Plaintiff-appellant, Corey Lucas, appeals from a Mahoning County
Common Pleas Court judgment dismissing his complaint against defendant-appellee,
Thackray Crane Rental, Inc., for lack of personal jurisdiction.
{¶2} Appellant filed a complaint arising from a workplace injury. He was
working as a construction worker for P&L Paris Corporation (P&L), an Ohio
corporation with its principal place of business in Mahoning County, Ohio, at a job
site in Pottstown, Pennsylvania. The general contractor of the construction project
was Irwin & Leighton, Inc. (Irwin), a Pennsylvania corporation with its principal place
of business in Pennsylvania. Thackray was a subcontractor at the job site. Thackray
is a crane rental and construction support company with its principal place of
business in Pennsylvania.
{¶3} Appellant asserted that on November 20, 2008, while he was working at
the Pottstown job site, he was positioned more than 20 feet above the ground on
unsecured steel girders. One of Thackray's employees was operating a crane and
released a bundle of steel decking that caused the area on which appellant was
standing to give way. Appellant fell more than 21 feet to the ground and was
severely injured. Appellant named Thackray, P&L, Irwin, and the crane operator as
defendants.
{¶4} Thackray fiied a Civ.R. 12(S)(2) motion to dismiss for iack of personai
jurisdiction. Thackray stated that it provided a crane and an operator to P&L after
P&L contacted it requesting such services. Thackray alleged that it initiated no
contacts with the State of Ohio and conducted no activities related to appellant's
injury in Ohio. It further alleged that it does not do business in Ohio nor does it have
any contacts with Ohio other than on a random or fortuitous basis resulting from the
unilateral activity of third parties.
{^5} The trial court granted Thackray's motion, finding that it did not have
personal jurisdiction over Thackray. The court found that Thackray did not solicit the
Pottstown job from P&L and no contract was created in Ohio. It further found that
while Thackray contracted with P&L and other Ohio companies, every one of the jobs
Apx. 0004
-2-
was in Pennsylvania, New Jersey, or the Delmarva Peninsula. It noted that the only
communication between Thackray and the Ohio companies was by mail or telephone
and primarily related to invoices and payments. And it noted that Thackray has never
performed any work in Ohio. The court went on to find that Thackray did not
purposely avail itself of acting in Ohio and appellant's cause of action did not arise
from Thackray's activities in Ohio. Finally, the court found that jurisdiction over
Thackray would be unreasonable under the Due Process Clause.
{¶6} Appellant filed a timely notice of appeal on July 5, 2011. Upon this
court's request, the trial court filed a nunc pro tunc judgment entry including Civ.R.
54(B) language that there is no just reason for delay.
{^7} Appellant raises a single assignment of error, which states:
THE TRIAL COURT ERRED IN GRANTING DEFENDANT-
APPELLEE THACKRAY CRANE RENTAL INC.'S MOTION TO
DISMISS PURSUANT TO CIV.R. 12(B)(2) FOR LACK OF PERSONAL
JURISDICTION.
{¶8} Appellant first argues that the trial court erroneously concluded that
Thackray has not transacted business in Ohio. As to this point, appellant asserts that
the trial court (1) erred in finding the fact that the contract was not entered into in
Ohio was relevant, (2) mistakenly concluded that there was no evidence that
Thackray solicited business in Ohio, and (3) erred by disregarding Thackray's actual
contacts with Ohio, which consisted of hundreds of written and oral contacts from
Thackray to its Ohio customers.
{¶9} As to Thackray's business transactions in Ohio, appellant contends that
Thackray has entered into over 100 contracts with nine different Ohio companies. He
further contends that Thackray earned substantial income from its business
transactions with Ohio companies, producing more than $342,000 in receivables.
Appellant also asserts that Thackray's transactions with Ohio-based companies are
quite involved and are not simply ordering and remitting a payment for a standard,
Apx. 0005
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one-time service or product. In support, appellant cites to Benjamin Wagner's
deposition testimony regarding how contracts were negotiated and billing was
handled. Wagner is Thackray's risk management director. Additionally, appellant
notes that Thackray's business dealings with Ohio have been continuous since 2005
or 2006.
{¶10} Appellant goes on to argue that the fact that Thackray provided
services to its Ohio-based customers outside of Ohio is not determinative of
jurisdiction. Instead, appellant points to the hundreds of written and oral
communications Thackray has had with Ohio companies over the years including
pre-contract negotiations, job confirmations, sales calls, sending job quotes, sending
invoices and billing statements, and making collections calls.
{¶11} Appellant next argues that Ohio has personal jurisdiction over Thackray
because this action arises from its Ohio business transactions. He asserts that
Thackray contracted with P&L from November 3, 2008, through February 17, 2009,
to provide P&L with equipment and personnel. He claims that the contract originated
following Thackray's various communications directed to P&L at its office in
Youngstown, Ohio. And as a result of the contract, appellant claims that Thackray
directed numerous written and oral communications to P&L in Ohio.
{¶12} Finally, appellant asserts that based on the above facts, Thackray has
purposely availed itself of the privilege of conducting business in Ohio and should
reasonably anticipate litigation here.
{¶13} Whether a trial court has personal jurisdiction over a defendant is a
matter of law which appellate courts review de novo. Info. Leasing Corp. v. Jaskot,
151 Ohio App.3d 546, 2003-Ohio-566, 784 N.E.2d 1192, ¶9 (1st Dist.).
{¶14} When the defense of lack of personal jurisdiction is asserted in a motion
to dismiss, the plaintiff bears the burden to establish that the court has jurisdiction.
Sessoms v. Goliver, 6th Dist. No. L-04-1159, 2004-Ohio-7077, ¶22. When a trial
court decides a Civ.R. 12(B)(2) motion without a hearing, the plaintiff need only make
a prima facie showing of personal jurisdiction, while a decision made following an
Apx. 0006
-4-
evidentiary hearing requires that the plaintiff offer proof by a preponderance of
evidence. American Office Services, Inc. v. Sircal Contracting, Inc., 8th Dist. No.
82977, 2003-Ohio-6042, ¶7.
{¶15} In this case, the trial court held a hearing on the motion. Therefore,
appellant was required to offer proof by a preponderance of the evidence.
{¶16} The determination of whether a state court has personal jurisdiction
over a foreign corporation is a two-step process. First, the court must determine
whether the state's long-arm statute and applicable civil rule confer personal
jurisdiction. U.S. Sprint Communications Co. Ltd. Partnership v. Mr. K's Foods, Inc.,
68 Ohio St.3d 181, 183-184, 624 N.E.2d 1048 (1994). Second, the court must
consider whether granting jurisdiction under the statute and the rule would deprive
the defendant of the right to due process of law pursuant to the Fourteenth
Amendment to the United States Constitution. Id. at 184, 624 N.E.2d 1048. Under the
second part of the analysis, the court must determine whether the nonresident
possesses certain minimum contacts with the state so that the suit does not offend
traditional notions of fair play and substantial justice. Clark, 82 Ohio St.3d at 313-
314, citing Internatl. Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed.
95 (1945).
{¶17} Under the first step, we must look to R.C. 2307.382(A)(1) and Civ.R.
4.3(A)(1). R.C. 2307.382(A)(1) provides, "[a] court may exercise personal jurisdiction
over a person who acts directly or by an agent, as to a cause of action arising from
the person's: (1) Transacting any business in this state." This section also applies to
foreign corporations. U.S. Sprint, 68 Ohio St.3d at 185. Likewise, Civ.R. 4.3(A)(1)
authorizes a court to exercise personal jurisdiction over a nonresident defendant and
provides for service of process to effectuate that jurisdiction if the claim arose from
the nonresident defendant's "[t]ransacting any business in this state."
{¶18} The Ohio Supreme Court has broadly defined "transacting business" to
include "to prosecute negotiations; to carry on business; to have dealings." Kentucky
Oaks Mall v. Mitchell's Formal Wear, Inc., 53 Ohio St.3d 73, 75, 559 N.E.2d 477
Apx. 0007
-5-
(1990), quoting Black's Law Dictionary (5 Ed. 1979) 1341. Because the definition is
so broad, cases involving questions of what constitutes "transacting business" have
been resolved on highly particularized facts that do not lend themselves to
generalization. Goldstein v. Christiansen, 70 Ohio St.3d 232, 236, 638 N.E.2d 541
(1994), quoting U.S. Sprint, 68 Ohio St.3d at 185.
{¶19} The First District recently set out several useful factors to be considered
when determining whether a foreign corporation has transacted business in Ohio
including whether the foreign corporation "(1) initiated the business dealings, (2)
participated in business negotiations, (3) ordered work to be perFormed in Ohio, and
(4) remitted payments to or owed other obligations in Ohio." (Footnotes omitted.) N.
Am. Software, Inc. v. James 1. Black & Co., 1 st Dist. No. C-100696, 2011-Ohio-3376,
¶15.
{¶20} In considering the first factor, Wagner stated that Thackray typically
does not solicit its customers. (Wagner dep. 9). Instead, customers contact
Thackray directly. (Wagner dep. 9). Wagner stated that most of the time P&L
contacts Thackray for work. (Wagner dep. 33). But Wagner did not have specific
knowledge of whether that was the case in this instance. (Wagner dep. 33-34).
Wagner further stated that P&L has been one of Thackray's customers since 2005 or
2006. (Wagner dep. 19-20).
{¶21} In considering the second factor, Wagner was unsure whether
Thackray gave a written quote to P&L. (Wagner dep. 37). Typically, he stated,
Thackray would provide either a written or a verbal quote to P&L before it delivered
the crane. (Wagner dep. 37). Wagner was unaware of any paperwork that may have
been sent to P&L between the time the quote was provided and the time the crane
was delivered to the job site. (Wagner dep. 38). Wagner stated that once the crane
was delivered to the job site (in Pennsylvania) a"job ticket," or contract, was
completed. (Wagner dep. 39).
{¶22} In considering the third factor, it was undisputed that the work was
performed in Pennsylvania and Thackray did not perform any work in Ohio.
Apx. 0008
-6-
{¶23} And as to the final factor, Wagner stated that Thackray ultimately billed
P&L for the crane by way of a written invoice that it mailed to P&L in Ohio. (Wagner
dep. 39-40). P&L then sent Thackray a check from its office in Ohio. (Wagner dep.
40).
{¶24} In addition to P&L, Wagner stated that Thackray has eight other Ohio
customers. (Wagner dep. 20-29). For each of these Ohio customers, Thackray has
provided services or products, has been paid for those services or products, and
maintains a customer file. (Wagner dep. 20-29). However, Thackray has never
performed any work in Ohio. (Wagner dep. 66). Nor has it entered into any contracts
in Ohio. (Wagner dep. 39).
{¶25} Wagner also stated, however, that other than sending invoices, quotes,
or a promissory note to Ohio, Thackray does not have any other contact with Ohio.
(Wagner dep. 65-66). He stated that Thackray does not provide cranes, operators,
oilers, trucks, or support equipment in Ohio. (Wagner dep. 66). In fact, the farthest
west that Thackray has provided services is around the Harrisburg, Pennsylvania
area. (Wagner dep. 60, 66).
{¶26} In response to the assertion that Thackray does not conduct business
in Ohio, appellant submitted over 100 job tickets/contracts between Thackray and its
Ohio customers and over 80 billing invoices from Thackray that it mailed to its Ohio
customers. (Plaintiff's Evidentiary Submission in Support of Jurisdiction; Plaintiff's
Supplemental Evidentiary Submission in Support of Jurisdiction).
{^27} The job tickets/contracts were not entered into in Ohio, however, but
instead were entered into at the various job sites, which are located in Pennsylvania,
New Jersey, and the Delmarva Peninsula.
billing invoices were simply mailed from
(Wagner dep. 17, 31, 38-39). And the
Thackray in Pennsylvania to its Ohio
customers to collect balances due. (Wagner dep. 17-18).
{¶28} Based on this evidence, appellant did not meet his burden of proving
that Thackray transacts business in Ohio. Thackray does have eight or nine Ohio
customers that it has telephone and mail contact with. But it has never performed
^pXs ®®®^
-7-
work in Ohio or entered into a contract in Ohio, and it typically does not solicit
customers in Ohio. Thackray's principal place of business is located in Pennsylvania
and it performs all of its work in Pennsylvania, New Jersey, and the Delmarva
Peninsula. It enters into its contracts at these job sites. Moreover, in the case at
bar, the alleged negligence occurred at a job site in Pennsylvania.
{¶29} For these reasons, Ohio's long-arm statute and civil rule do not confer
personal jurisdiction in this case.
{^30} Considering the second step of the personal jurisdiction analysis, we
must examine due process. A court may exercise jurisdiction over a nonresident
defendant only if the defendant has sufficient "minimum contacts" with Ohio so that
summoning the defendant would not offend "traditional notions of fair play and
substantial justice." Internatl. Shoe Co., 326 U.S. at 316, quoting Milliken v. Meyer,
311 U.S. 457, 463, 61 S.Ct. 339 (1940).
{¶31} In order to establish jurisdiction in keeping with due process, the plaintiff
must demonstrate that (1) the non-resident defendant purposefully availed himself of
the privilege of acting in the forum state or caused a consequence in that state, (2)
the cause of action arose from the defendant's activities in the forum state, and (3)
the defendant's acts or consequences caused by the defendant had a substantial
enough connection with the forum state to make the exercise of jurisdiction over the
defendant reasonable. Fritz-Rumer-Cooke Co., Inc, v. Todd & Sargent, 10th Dist. No.
OOAP-817, 2001 WL 102267, *4 (Feb. 8, 2001), citing Calphalon Corp, v. Rowlette,
228 F.3d 718, 721, (C.A.6, 2000).
{¶32} Firstly, Thackray did not purposely avail itself of the privilege of acting in
Ohio nor did it cause a consequence in Ohio. As discussed in detail above, Thackray
did not enter into contracts in Ohio or supply goods or services in Ohio. Furthermore,
even if we assume for purposes of this analysis that Thackray's negligence caused
appellant's injury, the negligence and injury occurred in Pennsylvania.
{¶33} Secondly, the cause of action here did not arise from Thackray's
activities in Ohio. Thackray's only "activities" involving Ohio in this case were that: it
Apxe 00010
-8-
came in contact with P&L to provide a crane and support services for a job P&L was
working on in Pennsylvania; it provided P&L a quote for the job; and after the job was
complete, Thackray sent billing invoices to P&L in Ohio.
{¶34} Thirdly, Thackray's acts or consequences caused by Thackray did not
have a substantial enough connection with Ohio to make the exercise of jurisdiction
over the defendant reasonable. Assuming again that Thackray was in fact negligent,
this negligence occurred in Pennsylvania. Assuming Thackray's actions were a
cause of appellant's injury, the injury occurred in Pennsylvania. And these
consequences arose out of the business that it transacted in Pennsylvania.
{^35} Based on the above, Thackray does not have sufficient minimum
contacts with Ohio so that the exercise of jurisdiction over it would be fundamentallyfair and reasonable.
{¶36} Accordingly, appellant's sole assignment of error is without merit.
{¶37} For the reasons stated above, the trial court's judgment is herebyaffirmed.
Waite, P.J., concurs.
DeGenaro, J., concurs.
Apx. 00011
response in opposition to the motion to dimiss. In lieu of an evidentiary hearing, this Court heard oral
arguments on the rr►otion to dismiss and response on May 9, 201 L
Having reviewed all of the evidenoe submitted, the deposition of Mr. Wagner, the motions, and
briefs and based on Ohio case Iaw, this Court fmds it lacks personal jurisdiction over defendant Thackray
Crane and grants Defendant's motion to dismiss for the reasons stated herein.
LEGALSTANDARD
In this matter, the plaintiff bears the burden to establish personal jurisdiction. Greene v.
Whiteside 181 Ohio App.3d 253, 2009 -Ohio- 741, 908 N.E.2d 975, at ¶ I1. Before the court will
construe the facts in plavnhffls favor, plauitiff "must first plead or otherwise make a prima facie showing
of jurisdici^on." Sherry v Geissler U Pehr GmbH 651 N.E.2d 1383 (Ohio Ct. App. 1995). When the
court determines the issue of jurisdiction without an evidentiary hearing, the court rnust view the
allegations in the pleadings and documentary evidence submitted by the parties in the light most favorable
to the nonmoving party, ,K.B Circuits Inc. v. BECS Technolo Inc,, No. OOAP-621, 2001 WL 40584
(Ohio Ct. App. Jan. 18, 2001). Significant to the court's deternunation this case is that the plaintiffs
amended complaint states simply that Thackray Crane has a principal place of business Iocated in
Philadelphia, Pennsylvania. There is no allegation concerning the residence of William Poyner, Jr., the
aIleged agent and employee of Thackrav Crane.
Crane or Mr, Poyner conducted any business whatsoever in the State of Ohio.
RESIDENT DEFBNDANT
The determination as to whether a_n Jhio C©u,^t ha,s pers®nal jurisciiction over a nonresident
defendant involves a two-step process. Keniuckv Oaks Mall v Mitchell's, SS9 N.E.2d 477 (Ohio I990 .)
The court must first consider the plain language of Ohio's long-arm statute and applicable Civi1 Rule. See
R.C. 2307.382 and Civ.R. 4.3; Kentuckv Oaks Mall v Mit^hell's supra. "If jurisdiction does lie, the court
must then decide whether granting jurisdiction comports with due process under the Fourteenth
Amendment to the United States Constitution." Sherry v Geissler U Pehr GmbH, 65I N.E.2d 1383
1386 (Ohio Ct. App. 1995). ^
ii0003^2 ^
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ThPrp , ,.tt___.e_-_^-^ =s ilo aii^gdnon by the piaintiff that Thacla^ay
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acting witiun Ohio. In Weiskopf Industries, the court held that the nonresident defendants "did not
purposely avail themselves of the privilege of acting within this state," because they were recruited in
Illinois to work in IIlinois. Id. In the present case, Plaintiff's own evidence establishes that Thackray
Crane was solicited by P&L on most occassions, and always for work to be performed in Pennsylvania.
(See, Wagner depo., 3/16/11, pp. 30-34 attached as Appendix Ex. 5 to Plaintiff s Evidentiary Submission
in Support of Jurisdiction). As further proof, Thackray Crane's contracts with P&L are to be governed by
Pennsylvania law, thus Thackray Crane never anticipated litigating in Ohio? (See, Thackray Crane/P&L
contracts attached as Appendix Ex. 5 to Plaintiff's Evidentiary Submission in Support of Jurisdiction, at
THACKR.AY000089-000191}. Simply because Thackray Crane sent a single Ietter or quote does not
mean it has a substantial connection with Ohio, where the core of its business - here, the supplying of
cranes and construction support - occurred outside of Ohio, specifically in Pennsylvania, where this
accident occurred. (See, Wagner depo., 3/I6/11, pp. 65-66 attached as Appendix Ex. 2 to Plaintiff s
Evidentiary Submission in Support of 7urisdiction.) Thackray Crane sending an invoice to Ohio for work
it performed in Pennsylvania, New Jersey or the Delmarva Penzuisula does not mean that Thackray Crane
purposely availed itself of doing business in Ohio, where the business at issue always took place outside
of Ohio. As explained, the sending of an invoice or calls into the forum state does not give tlus Court
personal jurisdiction over a nonresident defendant. See, Epic Communications v. ANS Connect, No.
90364, 2008 WL 2766285, 2008 -Ohio- 3548 (Ohio Ct. App. July 17, 2008); Sherrv v. Geissler U. Pelu^,
651 N.E.2d 1383 (Ohio Ct. App. 1995); McIntvre v. Rice, No. 81339, 2003 WI., 217I0726 (Ohio. Ct.
App. July 24, 2003).
Secondly, plaintiffs causes of action concerning the November 20, 2008 accident in Pottstown,
Pennsylvania do not arise from Thackray Crane's activities in Oluo. As previously stated, this Court finds
there were only attenuated contacts between Thackray Crane and Ohio, not rising to the "minimum
contacts" standard under the Fourteenth Amendment. Because there is no proof as to where the contract
2 The promissory note between P&L and Thacla^ay Crane is not evidence that Thackray Crane purposelyavailed itself of conducting business in Ohio. This is not the subj ect of plaintiff s complaint and there is no evidencethat the note subjects Thackray Crane to jurisdiction in Ohio. The issue of whether this promissory note is to belitigated in Ohio, or under Ohio law is not before this Court.
®®®38^ Apx.0001^
: ^
for the Upland Square Shopping Center between P&L and Thackray Crane was entered into, and the
evidence that it was to be governed by Pennslyvania law, this Court cannot find that the accident arose
out of any Ohio activity.
In support of its argument under this prong plaintiff cites to Theunissen v. Matthews, 935 F.2d
I454 (6`h Cir. 1991). The present case is distinguishable from Theunissen, and does not support
plaintiff's argument under the second prong of the due process analysis. In Theunissen, the court
determined that but for "Matthews' alleged business contacts with his employer, Theunissen would have
sustained no injury." Td. at 1460-61. However, prior to making this determination, the court found that
the defendant had purposely availed itself under the first prong of this analysis based on the fact that
Matthews maintained a residence in Michigan and contracted with common carriers and other firms. Id.
In the present case, there is no evidence that Thackray Crane purposely availed itself of acting in Ohio. It
does not maintain a place of business in Ohio or an Ohio registration. (See, Wagner Depo, 3/16/11, pp.
65-66 attached as Appendix Ex. 5 to Plaintiff's Evidentiary Submission in Support of Jurisdiction.)
Furthermore, there were not continuous contacts between Thackray Crane and Ohio firms, rather
plaintiff's evidence shows "attenuated contacts," at best. Id. at pp.65-66. Mr. Wagner testified that
Thackray Crane has never provided any cranes in Ohio, never provided any crane opexators in Ohio,
.,_ , „nevG-r- prov^aea an oi^er in uiuo, nor any trucics in Uhio, nor support equipment in Ohio. Id. at pp.65-66.
Based on this undisputed evidence, this Court fmds that Thackray Crane has not availed itself of doing
business in Ohio, nor has plaintiff established that his complaint arises from any event by Thackray Crane
in Ohio. There is no evide,nce in the record about where the agreement for Thacla^ay Crane to supply it's
equipment and operator for the Pottstown job was made, nor whether P&L solicited Thackray Crane, or
vice versa. Thacla^ay Crane's dealing with P&L resulted in an accident in Pennsylvania, not Ohio.
Finally, this Court fmds that jurisdiction over Thackray Crane is unreasonable under the Due
Process Clause. To determine whether the exercise of jurisdiction over a nonresident defendant is
reasonable, the court must balance "the burden on the defendant, the interests of the forum state, and the
plaintiffs interest in obtaining relief, giving due regard to the interstate judicial system's interest in
obtaining the most ef^icient resolution of controversies; and the shared interest of the several States in
000388Apx. 00019
furthering fundamental substantive social policies." Theunissen, 935 F.2d at 1461 (quoting, Asahi Metal
Indus Co v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92, 105
(1987)(internal citations omitted)). In the present case, while there is evidence of some communication
between Thackray Crane and companies in Ohio, Thackray Crane's business is supplying cranes and
providing construction services in Pennsylvania, New Jersey and the Delmarva Peninsula. It does not
have a substantial connection with Ohio, and plaintiff has failed to demonstrate otherwise, showing
attenuated contacts at best that do not meet the "minimum contacts" standard under the Fourteenth
Amendment.
Because plaintiff has failed to show that Thacla^ay Crane transacted business within the meaning
of Ohio's long-arm statute or that the causes of action in the complaint arose out of any of Thackray
Crane's activities in Ohio, as well as failed to show that any exercise of personal jurisdiction over
Thackray Crane in Ohio comports with Due Process, this Court hereby grants defendants motion to
dismiss without prejudice.
J-UN ^^DATE
.^^
^ (!^ JUI3GE
'tHE CLERK SHALL SERVH NOTICEOF THIS ORQER UPON ALL PARTIESWtTHIN THREE(3^ DAYS PER CtV.R.5
Q003g9 Apx. 00020
