Opinion
Civil Action No. 3:99CV-251-S
November 1, 1999.
MEMORANDUM OPINION AND ORDER
This matter is before the court on motion of the defendant, Dudick, Inc. ("Dudick"), to dismiss for lack of personal jurisdiction over it. Dudick, an Ohio Corporation, contends that it does not have sufficient contacts with Kentucky to subject it to long arm jurisdiction under KRS 454.210.
In the fall of 1997, the plaintiff, Irvin H. Whitehouse Sons Company ("Whitehouse"), entered into a contract with Trinity Industrial Corporation of America which included the provision of materials by Dudick for installation of an E-Coat System at Toyota's Princeton, Indiana plant. In accordance with the terms of the contract, Whitehouse sent a purchase order for the materials to Dudick for fulfillment of its terms. Dudick allegedly performed negligently and breached the contract. These claims form the basis of Whitehouse's suit.
Whitehouse bears the burden of establishing jurisdiction. Michigan National Bank v. Quality Dinette, Inc., 888 F.2d 462 (6th Cir. 1989). The court must apply Kentucky law in this diversity action. Tobin v. Astra Pharmaceutical Products, Inc., 36 F.2d 528 (6th Cir. 1993); H. Elliott Co. v. Caribbean Utilities Co., Ltd., 513 F.2d 1176 (6th Cir. 1975).
Kentucky's long arm statute, KRS 454.210, establishes jurisdictional limits which are coextensive with the limits imposed by due process. Aristech Chemical International, Ltd. v. Acrylic Fabricators, Ltd., 138 F.3d 624 (6th Cir. 1998); First National Bank of Louisville v. J.W. Brewer Tire Company, 680 F.2d 1123 (6th Cir. 1982). KRS 454.210(2)(a)(1) provides that "a court may exercise personal jurisdiction over a person who acts directly or by an agent as to a claim arising from the person's . . . transacting any business in this Commonwealth . . ." KRS 454.210(2)(a)(4) states that jurisdiction may be had over a person "If he regularly does or solicits business, or engages in any other persistent course of conduct . . . in this Commonwealth, provided that the tortious injury occurring in this Commonwealth arises out of the doing or soliciting of business or a persistent course of conduct within the Commonwealth."
Dudick contends that it is not subject to personal jurisdiction under either of these provisions. In support of its contention, it has submitted the affidavit of Thomas M. Dudick, the president of Dudick, in which he states, in pertinent part,
. . . 5. I am personally familiar with the general extent of the contacts between Dudick, Inc. and Irvin H. Whitehouse Sons Company, the Plaintiff in the above referenced action, in connection with the events referenced in the Complaint of Irvin H. Whitehouse Sons Company in this action. To the best of my knowledge, other than the written communications to Whitehouse in Kentucky in February, 1998, and other than an on-site visit which took place in Princeton, Indiana, Dudick had no contacts with the Plaintiff. Dudick, Inc. did not perform any work in Kentucky relating to the subject matter of Whitehouse's Complaint, nor did it have any meetings in Kentucky with Whitehouse (or anyone else) in connection with the matters described in Whitehouse's Complaint.
6. Further, Dudick, Inc. did not have a written contract with Whitehouse whereby it was agreed that either Dudick, Inc. or Whitehouse would perform any work in, or transport any goods to, the Commonwealth of Kentucky.
7. To the best of my knowledge, Dudick, Inc. conducted no activities or business in Kentucky relating to the matters described in Whitehouse's Complaint.
In response to the motion and Dudick affidavit, Whitehouse has submitted the affidavit of Larry Luther, an estimator and senior project manager employed by Whitehouse. Luther was the project manager on this Toyota Truck Plant project. Luther's affidavit states, in pertinent part,
. . . 8. In October of 1997, Dudick, Inc. solicited Whitehouse seeking to supply the materials to be used for the E-Coat System in the Toyota Truck Plant. On several occasions, Dudick, Inc. representatives met with me and other Whitehouse representatives including Whitehouse's Production Superintendent, Johnny Johnson, in Louisville, Kentucky, for the specific purpose of selling the Toyota Plant Project.
. . . 10. On or about February 25, 1998, Whitehouse entered into a contract with Dudick, Inc.
11. The Whitehouse/Dudick Contract was entered into in Kentucky.
12. The Whitehouse/Dudick Contract specifically provides that the rights and duties of Whitehouse and Dudick Inc. will be determined by the laws of the state of Kentucky.
13. The Whitehouse/Dudick Contract specifically provides that the contract will be construed and considered as a contract made in the state of Kentucky.
. . . 16. Dudick Inc. has a Louisville, Kentucky phone number listing (502) 417-8170.
17. Dudick Inc. has an "Account Executive" who regularly solicits work and makes sales calls for Dudick Inc. throughout the Commonwealth of Kentucky.
18. Ms. Kelly A. Hartfield has solicited work for Dudick Inc. from Whitehouse by visiting and calling Whitehouse representatives in Whitehouse's corporate offices located in Louisville, Jefferson County, Kentucky.
Dudick has not filed a supplemental affidavit in reply to the specifics alleged by Whitehouse. The Dudick affidavit avers only that Dudick is "familiar with the general extent of the contacts" between Dudick and Whitehouse. He states that, to the best of his knowledge, Dudick did not have contacts with Whitehouse in Kentucky, other than written communications in February of 1998, did not perform work in Kentucky relating to this matter, nor have meetings in Kentucky in connection with this matter. Dudick's general understanding, apparently second-hand, regarding what occurred in relation to this Toyota Plant job does not refute the specific assertions regarding specific contacts, meetings, and the provisions of the contract for purchase between the parties.
Whitehouse has come forward with evidence that Dudick transacted business with Whitehouse in Kentucky culminating in the contract currently in issue. The contract itself specifically provides that it is to be construed as having been formed in Kentucky. Additionally, Dudick's averments do not contradict the assertions regarding Kelly Hartfield's solicitation of business on behalf of Dudick in Kentucky. Dudick's affidavit states only that Dudick "does not employ an agent in Kentucky to solicit business." Apparently, it employs Hartfield in New Albany, Indiana to solicit Kentucky business.
We conclude that Whitehouse has come forward with ample evidence to sustain its assertion of personal jurisdiction over Dudick under either KRS 454.210(2)(a)(1) or (4). Although Dudick's products were shipped to the Indiana job site, it purportedly breached the Kentucky contract for the performance of such work which it solicited and entered into here, in a continuing course of business conducted in the Commonwealth. The assertion of jurisdiction over Dudick in this instance would not violate due process notions of fair play and substantial justice. National Can Corporation v. K Beverage Company, 674 F.2d 1134 (6th Cir. 1982); Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir. 1968). See also, Info-Med, Inc. v. National Healthcare, Inc., 669 F. Supp. 793 (W.D.Ky. 1987).
For the reasons set forth herein and the court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the motion of the defendant, Dudick, Inc., to dismiss for lack of personal jurisdiction is DENIED. Dudick's request for a hearing on the motion is DENIED AS MOOT.