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Kaplan School Supply Corp. v. Henry Wurst Inc.

Filed: April 6, 1982.

KAPLAN SCHOOL SUPPLY CORPORATION, PLAINTIFF
v.
HENRY WURST, INC., HENRY WURST, INC. -- RALEIGH AND H. R. WURST, DEFENDANTS AND THIRD-PARTY PLAINTIFFS V. PRECISION SERVICE AND SUPPLY, INC., AND PRECISION GAMES, INC., THIRD-PARTY DEFENDANTS



Appeal by third-party defendants from Wood, Judge. Order entered 23 April 1981 in Superior Court, Forsyth County. Heard in the Court of Appeals 3 March 1982.

Hedrick, Judge. Chief Judge Morris and Judge Vaughn concur.

Hedrick

The sole question presented by this appeal is whether the trial court erred in denying third-party defendants' motion to dismiss the third-party complaint for lack of personal jurisdiction.

The resolution of the question of in personam jurisdiction involves a two-fold determination: (1) do the statutes of North Carolina permit the courts of this jurisdiction to entertain this action against third-party defendants, and (2) does the exercise of this power by the North Carolina courts comport with due process of law. Dillon v. Numismatice Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977). Both questions must be answered in the affirmative before in personam jurisdiction may be asserted over a nonresident defendant.

"The first of these considerations is easily met." Mabry v. Fuller-Shuwayer Co., 50 N.C. App. 245, 248, 273 S.E.2d 509, 511, disc. rev. denied, 302 N.C. 398, 279 S.E.2d 352 (1981). G.S. ยง 1-75.4, commonly referred to as the "long-arm" statute, is a legislative attempt to allow the courts of this State to assert in personam jurisdiction to the full extent permitted by the Due Process Clause of the United States Constitution, and is accorded a liberal construction in favor of finding personal jurisdiction, subject only to due process limitations. Phoenix America Corp. v. Brissey, 46 N.C. App. 527, 265 S.E.2d 476 (1980); Dillon v. Numismatic Funding Corp., supra. Since the requisite statutory authorization for personal jurisdiction is coextensive with federal due process, the critical inquiry in determining whether North Carolina may assert in personam jurisdiction over a defendant is whether the assertion thereof comports with due process. Mabry v. Fuller-Shuwayer Co., supra; Phoenix America Corp. v. Brissey, Page 571} supra,; Parris v. Garner Commercial Disposal, Inc., 40 N.C. App. 282, 253 S.E.2d 29, disc. rev,. denied and appeal dismissed, 297 N.C. 455, 256 S.E.2d 808 (1979).

The due process clause makes the exercise of personal jurisdiction over a defendant contingent on there being some act by which defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws. United Buying Group, Inc. v. Coleman, 296 N.C. 510, 251 S.E.2d 610 (1979). "Due process requires that a nonresident defendant have certain minimum contacts with the forum state such that the maintenance of the suit [in the forum state] does not offend 'traditional notions of fair play and substantial justice.'" Phoenix America Corp. v. Brissey, supra at 530, 265 S.E.2d at 479.

In the present case, third-party defendants carry on no activity whatsoever in North Carolina. They have never contracted with any company located in North Carolina to do any kind of printing, binding, or mailing work. Their contract to prepare plaintiff's sales catalogs was solely with the Missouri third-party plaintiff, and the payment for their work was to be from the Missouri third-party plaintiff. The binding, printing, and addressing of the catalogs was done by third-party defendants solely in Iowa for the Missouri third-party plaintiff. The plaintiff, Kaplan, insofar as this record discloses, had no contact whatsoever with the third-party defendants. Indeed, there is nothing in this record to indicate that Kaplan knew or had reason to know that the Missouri third-party plaintiff had subcontracted any part of the work to anyone. There is no reason on this record for the North Carolina courts to exercise personal jurisdiction over the third-party defendants and become involved in a controversy which is solely between residents of two foreign states. Hence, as in Modern Globe, Inc. v. Spellman, 45 N.C. App. 618, 625, 263 S.E.2d 859, 864, disc. rev. denied, 300 N.C. 373, 267 S.E.2d 677 (1980), the third-party defendants' "connection with the State of North Carolina is far too attenuated, under the standards implicit in the Due Process Clause of the Constitution, to justify imposing upon [them] the 'burden and inconvenience' of defense in North Carolina."

We hold that the trial court erred in denying third-party defendants' motion to dismiss the third-party complaint for lack of in personam jurisdiction.

Reversed and remanded.

Disposition

Reversed and remanded.

19820406 ...


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