Opinion
No. 97-3707
Submitted April 16, 1998.
Filed May 11, 1998.
Appeal from the United States District Court for the Eastern District of Missouri.
Mark G. Arnold, Kathyrn Mary Koch, Husch Eppenberger, St. Louis, MO, for Appellant.
Mark Jonathan Bremer, Robert Allen Useted, Lori J. Baskins, David A. Castleman, Kohn Shands, St. Louis, MO, for Appellee.
Edward L. Dowd, Jr., U.S. Attorney, St. Louis, MO, Frank W. Hunger, U.S. Department of Justice, Appellate Section, Washington, DC, William Kanter, Mark w. Pennak, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for United States, Amicus Curiae on Behalf of Appellant.
Before WOLLMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
Federal Fountain, Inc. (represented by its trustee in bankruptcy, David A. Warfield) and KR Entertainment, Inc., entered into a contract under which Federal Fountain agreed to design and install certain equipment necessary for the operation of KR's water entertainment show in the Riviera Hotel in Las Vegas, Nevada. While involved in Chapter 7 proceedings, Federal Fountain filed suit to collect the balance due on the contract. KR filed a motion to dismiss for lack of personal jurisdiction and the district court granted the motion. Federal Fountain timely filed this appeal. We affirm.
The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri.
Rule 7004(d) of the Federal Rules of Bankruptcy Procedure provides that "[t]he summons and complaint and all other process except a subpoena may be served anywhere in the United States." Fed.R.Bankr.P. 7004(d). Several circuit courts have held that this provision, and similar ones that provide for national service of process, will not offend the Constitution in a particular case if there are certain minimum contacts between the defendant and the United States of America. See, e.g., Diamond Mortgage Corp. v. Sugar, 913 F.2d 1233 (7th Cir. 1990); Mariash v. Morrill, 496 F.2d 1138 (2nd Cir. 1974); Busch v. Buchman, Buchman O'Brien, 11 F.3d 1255 (5th Cir. 1994).
We have, however, adopted a different view. We have held instead that International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) requires "in every case" that there be minimum contacts between the defendant and the state in which he is expected to answer. See South Dakota v. Kansas City Southern Industries, 880 F.2d 40, 44 n. 10 (1989). After stating this principle in Kansas City Southern, we proceeded to consider the defendant's contacts with the state of South Dakota to determine whether personal jurisdiction over the defendant had been properly acquired. Kansas City Southern thus squarely holds that service of process outside the forum state under a national service of process statute confers personal jurisdiction over a defendant only if that defendant has the requisite minimum contacts with the forum state.
Federal Fountain asks us to interpret Kansas City Southern differently. It contends first that in that case we were simply interpreting the Clayton Act and that the phrase "in every case" refers to every case that arises under that act. The appellant also seems to argue that our analysis of the defendant's contacts with the forum state in Kansas City Southern had to do with the issue of venue, that is, with the question of whether the defendant there was "transacting business" in the forum state, and not with the issue of personal jurisdiction. See 15 U.S.C. § 22. We reject both of these contentions.
The principle applied in Kansas City Southern, as the court plainly stated, was that personal jurisdiction may not be established over a defendant unless that defendant has certain minimum contacts with the state in which the federal court is sitting. It is true that in Kansas City Southern, in determining that jurisdiction was proper, we relied on facts that the district court found in deciding that there was proper venue. But there is no indication there that we were inquiring into the venue issue for its own sake. Indeed, it is clear that we were not.
Nor have we ever approved the approach taken by the Fourth and Eleventh Circuits, under which a court that applies a statute permitting national service of process first inquires whether the proposed forum puts the defendant at a "severe disadvantage" in defending the action. If so, the court then performs a "balancing test," weighing the inconvenience to the defendant against something called the "federal interest" in litigating the matter in the particular forum. See, e.g., Republic of Panama v. BCCI Holdings, 119 F.3d 935, 948 (11th Cir. 1997). Kansas City Southern, in any case, forecloses our resort to this way of deciding the matter, even if we were inclined to do so.
Because the appellant "adduced no evidence indicating what contacts, if any, defendant has with the State of Missouri," In re Federal Fountain, 212 B.R. 960, 962 (E.D. Mo. 1997), the district court properly dismissed the case for lack of personal jurisdiction. Affirmed.
I concur in the opinion of the court because South Dakota v. Kansas City Southern Industries requires the result we reach. However, in my view, Kansas City Southern was wrongly decided for reasons advanced by the Second, Fifth and Seventh Circuits and, to a lesser extent, the Fourth and Eleventh Circuits as well.