[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, )
)
PLAINTIFF-APPELLANT, )
)
V. ) CASE NO. 11-MA-104
)
P&L PARIS CORP., ET AL., ) OPINION
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 09CV4426
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellant Atty. Andrew S. Goldwasser
Atty. Michael Schmeltzer
1610 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115
For Defendant-Appellee Atty. Eric N. Anderson
Thackray Crane Rental, Inc. U.S. Steel Tower, Suite 4850
600 Grant Street
Pittsburgh, PA 15219
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: September 21, 2012
[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 filed a Civ.R. 12(B)(2) motion to dismiss for lack of personal
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
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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,
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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
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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
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(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 I. Black & Co., 1st 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.
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{¶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. (Wagner dep. 17, 31, 38-39). And the
billing invoices were simply mailed from 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
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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.
00AP-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
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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 fundamentally
fair 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 hereby
affirmed.
Waite, P.J., concurs.
DeGenaro, J., concurs.