May Department Stores Co. v. Wilansky

900 F. Supp. 1154, 1163-1165 (E.D. Mo. 1995)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

May (P) filed a two-count Complaint alleging that Wilansky (D) breached an employment agreement with P and that Bon-Ton (D1) tortiously interfered with the Wilansky-May employment agreement. Jurisdiction of this action is based on diversity of citizenship under 28 U.S.C. § 1332, and venue is based on 28 U.S.C. § 1391(a) and (c). D motioned to dismiss the complaint for lack of personal jurisdiction, improper venue, insufficiency of service of process, and for other relief, and D1 motioned to dismiss for lack of personal jurisdiction and lack of venue or, alternatively, to transfer to the Middle District of Pennsylvania. P is a New York corporation with its principal place of business in St. Louis, Missouri. D is an individual who was a citizen and resident of the State of Texas until late August or early September 1995 and is now a citizen and resident of the State of Pennsylvania. D had been in P's employ in various executive-level positions since 1977. D1 is a Pennsylvania corporation with its principal place of business in York, Pennsylvania. P and D entered into an Employment Agreement under which D would become the President and Chief Executive Officer of May's Filene's store division in Boston, Massachusetts. D signed an Amendment of Employment Agreement in St. Louis, Missouri. D would become President and Chief Executive Officer of P's Foley's store division in Houston, Texas; the contract term was extended to April 30, 1997; and Wilansky's compensation was changed. On Friday, August 18, 1995, D accepted the position of President and Chief Executive Officer of D1 in Pennsylvania, and on the same day announced his resignation from P effective immediately. D and D1 filed a declaratory judgment action against P in the United States District Court for the District of Pennsylvania. P submitted affidavits that D traveled to St. Louis in connection with P business matters at least nine times since the beginning of 1994. D personally attended a P Presidents' Council meeting in St. Louis on June 22-23, 1995, and participated by video conference in a Presidents' Teleconference held in St. Louis on July 28, 1995. D1 submitted a declaration that it is in the business of owning and operating retail stores and has forty-one stores in Pennsylvania, nineteen in New York, three in Maryland, two in West Virginia, and one each in New Jersey and Georgia. D1 is not authorized to do business in Missouri and has no statutory agent in Missouri. D1 does not maintain an office, mailing address, telephone listing, business records, bank accounts, business facility, personnel or agents in Missouri, nor does it conduct any manufacturing, selling or distribution of goods, products or services in Missouri. D1 has no affiliates or subsidiaries which engage in business in Missouri. D1 has no estates, leases or interests in real property located in Missouri. These assertions are not contradicted by May. Both Ds contend that the Missouri long-arm statute does not confer personal jurisdiction over them and that the exercise of personal jurisdiction would violate constitutional due process. Defendants also move to dismiss on the basis of improper venue. Defendants ask in the alternative that this action be transferred to the United States District Court for the Middle District of Pennsylvania. P's Complaint does not assert that D1 had any contacts with Missouri other than the extraterritorial act of interfering with the May-Wilansky contract, which allegedly will have consequences in Missouri. This Court has determined that the 'commission of a tortious act' provision of the statute permitted jurisdiction over a defendant corporation where the sole basis for jurisdiction was an extraterritorial act, tortious interference with a contract, which produced an effect in the State of Missouri. The long-arm statute confers jurisdiction over defendant Bon-Ton. D1 does not transact business in Missouri and has no offices, bank accounts, agents or assets in Missouri. Nothing in the record indicates that D1 utilized any form of communication with any person in Missouri in connection with its negotiations with D which allegedly led to his breach of contract with P. It is apparent D1 did not purposefully avail itself of the privileges of conducting activities within the State of Missouri, nor did it invoke the privileges and protections of Missouri law. The Court concludes that the limited contact which D1 has with Missouri, i.e., the impact of its allegedly tortious activity, is 'so attenuated that the maintenance of a suit would offend traditional notions of fair play and substantial justice.' This court lacks in personam jurisdiction over D1. The Complaint states that jurisdiction is proper over D under of the 'transaction of business' provision of the Missouri long-arm statute. P also argues that jurisdiction is proper over D under the 'making of a contract' provision of the statute because he executed a key contract document. D contends that his 'sporadic visits to the forum state' following the execution of the Foley's Amendment are unrelated to this litigation and insufficient to establish personal jurisdiction. D also asserts that the document he signed in St. Louis was merely an amendment to the parties' original Employment Agreement, a Massachusetts contract, and that execution of the amendment in St. Louis does not transform the situs of the original agreement. D further contends that most of the disputed contract terms are in the original Employment Agreement, which has no connection with Missouri and cannot serve as a predicate for long-arm jurisdiction under the statute. P counters that D has had significant contacts with the State of Missouri. D was employed for approximately eighteen years by P, which has its principal place of business in St. Louis. D executed one of the key contract documents relevant to this action, the Foley's Amendment, in St. Louis in 1992. D traveled to St. Louis a number of times in connection with his employment, including nine visits since January 1994. D met with P executives and other personnel, and in so doing discharged some of his duties under the various agreements he signed with P in Missouri. D also acquired sensitive and confidential P information in Missouri which would harm P if disclosed to D1. Missouri courts have held that personal jurisdiction is appropriate under the long-arm statute in a contract dispute if the nonresident defendant entered the state for even one meeting which related to the contract at issue. The Court concludes that D's visits to and contacts with Missouri in connection with his employment constitute the transaction of business within the meaning of the Missouri long-arm statute. But the Court concludes D's actions are such that the exercise of personal jurisdiction over him would not violate constitutional due process requirements.

D moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(5), or to quash service of process, on the basis that he was improperly served by means of fraud and trickery. D notified P he intended to resign from its employ by telephone call to Richard Battram on August 18, 1995. Battram called D back and asked him to come to St. Louis to discuss the issues. On Saturday morning, August 19, 1995, P sent a company airplane to Texas to pick up D and bring him to St. Louis. Also on Saturday morning, counsel for P persuaded the Clerk of the Court to open the Clerk's office and file the Complaint. D met with Battram in Battram's office. The men discussed whether D's decision was final, and when it became clear to Battram that it was, Battram asked May's Secretary and General Counsel and one of May's attorneys from the Bryan Cave LLP firm, to come into the office. One of the attorneys handed D a summons and a copy of the Complaint, which had already been filed.