WEBSTER, Circuit Judge.
In these consolidated appeals, appellant Aaron Ferer & Sons Company seeks reversal of four orders of the District Court
In 1974, appellant filed a petition for arrangement under Chapter XI of the Bankruptcy Act. Two years later, it filed separate complaints against appellees in the United States District Court for the District of Nebraska alleging it had made voidable preferential transfers.
Each appellee then filed a motion to dismiss, challenging the court's in personam jurisdiction, which appellant had asserted under Nebraska law.
The District Court consolidated the cases and heard oral argument. It granted the motions to dismiss, finding that the purchase contracts in dispute were executed outside of Nebraska and were not performed in whole or in part in Nebraska.
Ferer appeals, contending that maintenance of these suits in a Nebraska forum would not violate due process. We disagree.
The Supreme Court of Nebraska has stated that the language of that state's long-arm statute "indicates clearly the legislative intention to apply the minimum contacts rule where it does not offend traditional concepts of fair play and substantial justice." Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656, 659 (1971). That court has also said that "[n]o one has constructed a table of `minimum contacts' that will always satisfy requirements of due process. The test is fundamental fairness." Von Seggern v. Saikin, 187 Neb. 315, 189 N.W.2d 512, 514 (1971). Based upon these decisions, the United States District Court for the District of Nebraska has concluded that the reach of the Nebraska long-arm statute is limited only by the constitutional constraints imposed by the minimum contacts rule. See Vergara v. Aeroflot "Soviet Airlines," 390 F.Supp. 1266, 1270 (D.Neb.1975). See also Ag-Tronic, Inc. v. Frank Paviour Ltd., 70 F.R.D. 393, 398 (D.Neb.1976); Morton Buildings of Nebraska, Inc. v. Morton Buildings, Inc., 333 F.Supp. 187, 192 (D.Neb.1971); General Leisure Products Corp. v. Gleason Corp., 331 F.Supp. 278, 279 (D.Neb.1971); Blum v. Kawaguchi, Ltd., 331 F.Supp. 216, 219-20 (D.Neb.1971).
In determining whether application of Nebraska's long-arm statute to the facts of the cases before us offends due process, it is necessary to ask whether the nonresident defendants have sufficient minimum contacts with the forum state so as to comply with traditional notions of fair play and substantial justice, see International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); whether appellees have invoked the benefits and protections of Nebraska law by their activities there, see Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); and, because these cases involve contract disputes, whether the contracts have a substantial connection with the forum state. See McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).
This Court has enunciated certain general factors to be considered in determining whether personal jurisdiction under long-arm statutes meets due process requirements:
Caesar's World, Inc. v. Spencer Foods, Inc., 498 F.2d 1176, 1180 (8th Cir. 1974). See Block Industries v. DHJ Industries, Inc.,
Applying these principles to the facts of each of the appeals involved herein viewed in the light most favorable to appellant, we find that appellees' contacts with the State of Nebraska are insufficient to satisfy due process.
(1) Appellee Atlas Scrap Iron & Metal Company. Atlas is a Texas corporation with its principal place of business in Dallas, Texas. Appellant's affidavit states that Ferer and Atlas had engaged in a continuous course of business for approximately two years prior to April 24, 1974, the day appellant filed its petition for Chapter XI arrangement, involving transactions totaling in excess of $500,000. The purchase contracts involved in the present action were executed by Atlas in Texas and concerned metal sold by appellant in Texas for delivery outside of Nebraska.
(2) Appellee Becker Metals Corporation. All of the purchase contracts at issue between Ferer and Becker, a Missouri corporation with its principal place of business in St. Louis, Missouri, were executed in Missouri and concerned metal sold by Becker in Missouri for delivery to destinations outside of Nebraska. Appellant and Becker had engaged in a continuous course of business for five years, with transactions totaling approximately $500,000.
(3) Appellee Wimco Metals, Inc. Prior to the filing of its Chapter XI petition, appellant and Wimco, a Pennsylvania corporation with its principal place of business in Pittsburgh, Pennsylvania, had engaged in a continuous course of business dealings for a period of over one year totaling in excess of $500,000. The purchase contracts at issue were executed in Pennsylvania and concerned metal sold by Wimco in Pennsylvania for delivery outside of Nebraska.
(4) Appellee Sitkin Smelting & Refining Company. Sitkin, a Pennsylvania corporation with its principal place of business in Lewiston, Pennsylvania, had engaged in a continuous course of business dealings with appellant for at least two years prior to the day appellant filed its Chapter XI petition, with transactions exceeding a value of $700,000. All of the purchase contracts that are the subject of appellant's complaint against Sitkin were executed in Pennsylvania and concerned metal sold by Sitkin in Pennsylvania for delivery to destinations outside of Nebraska. In July, 1974, Sitkin brought a lawsuit in the United States District Court for the District of Nebraska against the United States National Bank of Omaha to resolve a dispute between Sitkin and the bank concerning the bank's refusal to honor negotiable instruments drawn by appellant and payable to Sitkin.
Certain facts are common to all of the actions involved herein. None of the appellee corporations has an office, agent or employee in the State of Nebraska, nor has any representative of an appellee corporation ever entered Nebraska for a purpose related to the contracts at issue here. The metal goods involved in these purchase contracts neither originated in nor were destined for Nebraska. There were, however, numerous telephone calls and mailings between appellant in Nebraska and appellees in other states.
While presence by the defendant in the forum state is not a jurisdictional prerequisite, see McGee v. International Life Ins. Co., supra, 355 U.S. at 222-23, 78 S.Ct. 199; Electro-Craft Corp. v. Maxwell Electronics Corp., supra, 417 F.2d at 369, it is necessary that the defendant have sufficient minimum contacts with the forum state so that requiring it to defend itself there will not offend traditional notions of fair play and substantial justice. See International Shoe Co. v. Washington, supra, 326 U.S. at 316, 66 S.Ct. 154. Appellees have no
While no one of these factors is alone determinative, there is lacking in these cases any contact between an appellee corporation and the State of Nebraska sufficient to satisfy due process.
The orders of dismissal are affirmed.