Hall's Specialties, Inc. v. Fred Schupbach, Jr., D/B/A Schupbach Trucks

FLAUM, Circuit Judge,

dissenting.

The majority holds that a federal district court sitting in Indiana properly dismissed a suit by an Indiana plaintiff against an Illinois defendant after the suit had already culminated in a two-day jury trial and a verdict for the plaintiff, essentially on the basis that the defendant should never have been sued in Indiana in the first place. This result — while lamentable as a matter of judicial efficiency — would be compelled by the Due Process Clause if the evidence introduced at trial failed to show that the Illinois defendant had in some way purposefully availed himself of the privilege of doing business in Indiana, as the majority concludes. See ante at 217; Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). Because I believe that the advertisement and solicitation of business in Indiana that the defendant described in his own trial testimony do satisfy the purposeful availment requirement, however, I respectfully dissent.

The majority notes our recent decision in Madison Consulting Group v. The State of South Carolina, 752 F.2d 1193 (7th Cir. 1985), holding that a nonresident defendant who solicited a business transaction with a plaintiff from Wisconsin could be sued in Wisconsin on a cause of action arising out of that transaction. It nevertheless proceeds to hold that Fred Schupbach, Jr., d/b/a Schupbach Trucks (“Schupbach”), of Illinois cannot be sued in Indiana by Hall’s Specialties, Inc. (“Hall’s”) of Indiana on a cause of action related to Schupbaeh’s sale of a tanker transport to Hall’s, despite the fact that the sale resulted from Hall’s reading of Schupbach’s advertisement for the transport in the “Indiana Prairie Farmer” magazine. The majority rests its holding on the district court’s finding of fact that Schupbach did not know or intend that the specific advertisement that Hall’s read— which Schupbach placed in the “Illinois Prairie Farmer” — would later appear specifically in the “Indiana Prairie Farmer.”2 I agree that this finding itself is not clearly erroneous, and would join the majority if Schupbach’s solicitation of business in Indiana were limited to the fortuitous appearance of this one advertisement in the “Indiana Prairie Farmer.” Mr. Schupbach’s trial testimony, however, reveals otherwise.

Beginning with the general role of advertising in his business of selling tanker transports, the defendant testified on direct as follows:

Q: How would you then sell this product? What means did you use to market this?
A: Advertising in trade publications, the Prairie Farmer. I used a propane publication once and awhile called Butane-Propane News.
*218Q: And the circulation of these particular publications were they limited to the State of Illinois?
A: No, they weren’t.
Q: You sold vehicles in places other than Illinois; is that right?
A: Right.

This testimony indicates that Schupbach’s business was not exclusively local, but rather involved the advertisement and sale of transports outside of Illinois.

As to the specific advertisement for the tanker transport at issue in this case, which appeared and was read by Hall’s in the “Indiana Prairie Farmer,” Schupbach testified:

Q: How did you advertise this particular vehicle for sale?
A: I had it in the Prairie Farmer. ******
Q: Were you aware that the Prairie Farmer was distributed both in Illinois and Indiana?
A: I wasn’t at the time but I am now.
Q: As a matter of fact, the previous vehicle that you had advertised in the Prairie Farmer was sold in the State of Indiana; was it not?
A: That is true. Normally, I would get a call from a customer, say in New York, and he would tell me he saw it in the Prairie Farmer. I assumed he had subscribed to the Illinois issue of the Prairie Farmer. [Emphasis added].

Taken as a whole, this testimony establishes Schupbach’s knowledge that some edition of the Prairie Farmer containing his advertisements was being distributed outside of Illinois — and specifically in Indiana — and suggests his ignorance only of the fact that the advertisements he placed in the Illinois edition were being reprinted in the Indiana edition.

Any remaining ambiguity concerning Schupbach’s knowledge that his advertisements were appearing in publications circulated in Indiana was dispelled by his testimony about his previous sale of a tanker transport to a customer in Indiana, which he alluded to above. Schupbach testified that this sale, which took place in the spring of 1976, was made to none other than Ned Hall, of Hall’s Specialties. Moreover, he explained the events giving rise to this sale to Hall's as follows: “I had the transport advertised in the Prairie Farmer and he read the ad and he and his wife drove over to look at the trailer and they decided they would buy the trailer.”

Viewed in light of this testimony, the real fortuity in this case is not that Schupbach’s advertisement for the tanker transport appeared in a publication circulated in Indiana (and thereby led to a sale of the transport to an Indiana resident and ultimately to this lawsuit), but that Hall’s read the advertisement in the “Indiana Prairie Farmer” rather than the “Illinois Prairie Farmer” or some other publication. While Schupbach’s solicitation of business in Indiana may not be sufficient purposeful availment to make him amenable to suit in Indiana on a cause of action unrelated to that solicitation, see Helicopteros Nacionales de Colombia, S.A. v. Hall, — U.S. -, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), it should be sufficient to make him amenable to suit in Indiana on the present cause of action growing directly out of that solicitation.

The district court’s, and now the majority’s, holding to the contrary is based upon an overly narrow and technical construction of the “minimum contacts” test for personal jurisdiction, a test that ultimately derives from the requirement that the maintenance of a suit in the forum state “not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)). See also Madison Consulting Group, 752 F.2d at 1197-1200 (discussing recent Supreme Court decisions). I would hold that on the facts of this case, “defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there” on the present *219cause of action. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

. The district court supported its dismissal of the suit for lack of personal jurisdiction with additional analysis to the effect that: 1) Hall’s cause of action does not arise out of Schupbach’s activity in Indiana, because the transport was purchased in Illinois, any misrepresentations or breaches of warranty occurred there, and the transport was ultimately destroyed in Illinois, Hall’s Specialties, Inc. v. Schupbach, No. F 81-80, slip op. at 28-30 (N.D.Ind.1984), and 2) the exercise of jurisdiction over Schupbach would be fundamentally unfair because his sales and solicitation of business in Indiana constituted "isolated occurrences” and not "continuing conduct purposefully intend[ed] to preserve and enlarge an active market,” id. at 34-36.

Although I also reject much of this analysis, I decline to discuss it here except insofar as it relates to my discussion of Schupbach’s purposeful availment of the privilege of conducting business in Indiana, which the majority seems to agree is the crucial issue in this case.