United States District Court, N.D. Iowa, Western Division
For JTV Mfg Inc, Plaintiff: Bruce Allen Moothart, LEAD ATTORNEY, Seyferth, Blumenthal & Harris, LLC, Kansas City, MO; William K Klinker, LEAD ATTORNEY, Smith, Grigg, Shea, Klinker & Queck, Primghar, IA.
For Braketown USA Inc, Ermak USA, Defendants: Jeff W Wright, LEAD ATTORNEY, Heidman Law Firm, LLC, Sioux City, IA; Oscar R Trejo, Atom Law Group, LLC, Chicago, IL.
MEMORANDUM OPINION AND ORDER ON THIRD-PARTY DEFENDANT'S MOTION TO DISMISS
LEONARD T. STRAND, UNITED STATES MAGISTRATE JUDGE.
This case is before me on a motion (Doc. No. 34) by third-party defendant Antil S.p.A. (Antil) pursuant to Federal Rule of Civil Procedure 12(b)(2) to dismiss the third-party complaint for lack of personal jurisdiction. The third-party plaintiffs, Braketown USA, Inc. (Braketown), and Ermak USA, Inc. (Ermak), filed a resistance (Doc. No. 38) and Antil filed a reply (Doc. No. 40). I heard oral arguments by telephone on March 17, 2015. Dana Oxley appeared for Antil, Jeff Wright appeared for Braketown and Ermak and William Klinker appeared for plaintiff JTV Manufacturing,
Inc. (JTV). The motion is fully submitted and ready for decision.
II. PROCEDURAL HISTORY
JTV commenced this action against Braketown and Ermak on November 27, 2013, by filing a petition (Doc. No. 4) in the Iowa District Court for O'Brien County. On January 13, 2014, Ermak filed a notice (Doc. No. 1) of removal to this court on the basis of diversity jurisdiction. Braketown consented to the removal. Doc. No. 1-2. JTV then filed an amended complaint (Doc. No. 14) on February 10, 2014.
JTV alleges that it is an Iowa corporation with its principal place of business in Sutherland, O'Brien County, Iowa. Doc. No. 14 at ¶ 1. It contends that Braketown and Ermak are Illinois corporations, with Braketown being headquartered in Wisconsin and Ermak being headquartered in Illinois. Id. at ¶ ¶ 2-3. JTV alleges that Braketown does business in Iowa as a sales agent for Ermak and that it has solicited business from JTV in O'Brien County, Iowa, since 1999. Id. at ¶ 4.
JTV's claims against Braketown and Ermak arise from JTV's purchase of a fiber laser cutting machine (the Machine) which consisted of both (a) an Ermaksan Laser Cutter (the Cutter) and (b) an automated load and unload system (the Load System) manufactured by Antil. JTV alleges that it entered into a contract to purchase the Machine from Braketown and Ermak in July 2011 and that the Machine was installed at JTV's facility in Sutherland, Iowa, on or about March 1, 2012. Id. at ¶ ¶ 8-12. According to JTV, the Machine has never operated properly, despite repeated repair efforts by Ermak employees. Id. at ¶ 16. JTV asserts claims against Braketown and Ermak for breach of contract, breach of express warranty, breach of the implied warranty of merchantability and breach of the implied warranty of fitness for a particular purpose. Id. at pp. 4-7.
Braketown and Ermak have filed answers (Doc. Nos. 26-27) in which they deny liability to JTV and raise various defenses. On October 7, 2014, Braketown and Ermak filed a third-party complaint (Doc. No. 28) against Antil. They allege that Antil is a limited liability company organized under the laws of Italy that manufactures robotics and automation equipment. Doc. No. 28 at ¶ 4. They further allege that Ermak entered into a contract with Antil under which Antil agreed to supply the Load System that Ermak would then sell to JTV as part of the Machine. Id. at 23. Braketown and Ermak contend that the Load System, as supplied by Antil, is the faulty component that has prevented the Machine from operating properly at JTV's facility. Id. at ¶ ¶ 19-21. Braketown and Ermak assert claims against Antil for breach of contract, breach of the implied warranty of merchantability and breach of the implied warranty of fitness for a particular purpose. Id. at pp. 4-7. They seek entry of judgment against Antil " in contribution for all sums that will be assessed against Third Party Plaintiffs, in favor of the Plaintiff, JTV Manufacturing, Inc., if any, in such amount that would be commensurate with the degree of misconduct attributable to the Third Party Defendant, Antil S.p.A., in causing the aforementioned Plaintiff's damages, and any such other and further relief as this Court determines appropriate and just." Id. at pp. 6-7.
Antil filed its motion (Doc. No. 34) to dismiss the third-party complaint on February 2, 2015. All parties, including Antil, have consented to have a United States Magistrate Judge conduct all proceedings in this case, including trial, the entry of final judgment and all post-trial proceedings,
pursuant to 28 U.S.C. § 636(c). Doc. Nos. 30, 41. As such, this case has been referred to me by the Honorable Donald E. O'Brien, Senior United States District Judge. Id.
III. RELEVANT JURISDICTIONAL FACTS
The following facts, which for the most part are set forth in an affidavit (Doc. No. 34-2) supplied by an Antil representative, appear to be undisputed:
Antil is an Italian company that has nearly 50 employees, all of whom live and work in or near Milan, Italy. As is the situation in this case, Antil typically sells its products and services to machine constructors, who then sell the end products to their own customers. Antil's sale market is divided into two regions -- Italy and the rest of the world. It does about half of its business in Italy with most of the rest of its business occurring in other European countries.
Antil has no offices or facilities in the United States. It does not own or lease property in the United States. It does not maintain a telephone listing, mailing address, employees, bank accounts or sales agents in the United States. Antil is not licensed to do business in any state of the United States. It pays no taxes to any governmental entity in the United States and had never previously entered into a contract with any customer or entity in the United States. Nor does it advertise or otherwise market itself in the United States. While Antil's employees sometimes attend trade shows in various locations around the world, they have never attended such an event in Iowa. Antil has never attempted to do business with any entity or individual in Iowa. Before 2011, Antil had sold one other product for installation in the United States.
Ermak is the United States sales representative of Ermaksan, a manufacturing company based in Turkey. One of Ermaksan's products is the Cutter that was sold to JTV as part of the Machine. Antil developed a business relationship with Ermaksan and, prior to 2011, made proposals to supply its equipment to Ermaksan for projects in Europe. Antil became aware of Ermak because of Antil's relationship with Ermaksan.
In 2011, Ermak asked Antil to provide a quotation for a Load System that Ermak would then combine with an Ermaksan Cutter and sell to JTV. Antil submitted its offer to Ermak on June 30, 2011, along with a document entitled " General Sales Conditions." When Antil decided to submit an offer, it knew that Ermak's customer was located in Iowa and that the Antil Load System would thus be installed in Iowa. Ermak issued a written purchase order to Antil, based on Antil's offer, on August 8, 2011. Antil provided a confirmation of the order in September 2011.
Before Antil submitted its offer, two JTV employees came to Italy and viewed an Antil Load System that had been installed at another facility. No Antil employee visited the United States with regard to the transaction until after sale of the Load System to Ermak was complete. When the Load System was ready for delivery, Antil loaded it into a shipping container provided by Ermak at Antil's facility in Milan. The Load System was then shipped from Antil's facility on or about February 6, 2012.
Antil's contract with Ermak provided that Antil would mount and connect the Load System to the Cutter at JTV's facility in Iowa and that Antil would provide a one-day training course at JTV's facility. And, in fact, Antil employees traveled to JTV's facility in March 2012 to install the Load System and provide training. Antil employees made a second trip to JTV's facility in Iowa in April 2012 because the
Machine was not working properly. An Antil technician made three additional visits to JTV's facility between June 2012 and October 2013 to provide service. Thus, Antil employees were present in Iowa on ...