Floyd B. Burchett, Complainant-Appellee v. Bardahl Oil Company and Nance & Associates, Ltd.

HOLLOWAY, Circuit Judge

(concurring in the result):

The majority opinion and' the Memorandum Opinion of the trial court hold that jurisdiction of the person was established sufficiently under the Oklahoma long-arm statutes, 12 O.S.A. §§ 187 and 1701. However, these statutes require that the cause of action asserted arise from the acts relied on for personal jurisdiction. See Crescent Corp. v. Martin, 443 P.2d 111, 116 (Okl.); Anderson v. Shiflett, 435 F.2d 1036, 1037 (10th Cir.); Russell v. City State Bank of Wellington, 264 F.Supp. 572 (W.D.Okl.). For this purpose the acts relied on must be those of Nance as the alleged agent of Bardahl, since the cause of action asserted arose therefrom. However, as the majority opinion recognizes, jurisdiction cannot be sustained on this basis because the affidavit of Bardahl’s Vice President is uncontroverted in its denial that Nance had any authority to act for Bardahl. Therefore, I do not feel that jurisdiction of the person can be sustained under the long-arm statutes.

*798Nevertheless, I feel that under other statutes there was sufficient activity by Bardahl shown in order to sustain jurisdiction due to Bardahl’s presence by engaging in or transacting business in Oklahoma. The facts concerning the distributorship arrangement with Moyer, visits by Bardahl’s sales representative, and two direct sales in Oklahoma to one of Moyer’s customers have been enumerated. While the question is not free from doubt, I believe that under recent Oklahoma decisions these circumstances are sufficient for jurisdiction on the basis that the foreign corporation was engaging in or transacting business in the state. See 18 O.S.A. §§ 1.17 and 1.204a; Sweeney Co. v. Colorado Interstate Gas Co., 429 P.2d 759 (Okl.); Fawcett Publications, Inc. v. Morris, 377 P.2d 42 (Okl.), cert. denied, 376 U.S. 513, 84 S.Ct. 964, 11 L.Ed.2d 968; and see 12 O.S.A. § 153.1 (regarding method of service).