Roth Grading v. Martin Bros. Constr. , 25 Neb. Ct. App. 928 ( 2018 )

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www.nebraska.gov/apps-courts-epub/
06/05/2018 09:08 AM CDT
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ROTH GRADING v. MARTIN BROS. CONSTR.
Cite as 25 Neb. App. 928Roth Grading, Inc., doing business as Impact
Roller Technology, a Nebraska corporation,
appellant, v. M artin Brothers Construction,
a California corporation, appellee.
___ N.W.2d ___
Filed May 29, 2018. No. A-17-097.
1. Motions to Dismiss: Jurisdiction: Pleadings. When a trial court relies
solely on pleadings and supporting affidavits in ruling on a motion to
dismiss for want of personal jurisdiction, the plaintiff need only make a
prima facie showing of jurisdiction to survive the motion.
2. Jurisdiction: Rules of the Supreme Court: Pleadings: Appeal and
Error. When reviewing an order dismissing a party from a case for
lack of personal jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(2), an
appellate court examines the question of whether the nonmoving party
has established a prima facie case of personal jurisdiction de novo.
3. Motions to Dismiss: Appeal and Error. In reviewing the grant of a
motion to dismiss, an appellate court must look at the facts in the light
most favorable to the nonmoving party and resolve all factual conflicts
in favor of that party.
4. Jurisdiction: Words and Phrases. Personal jurisdiction is the power
of a tribunal to subject and bind a particular person or entity to its
decisions.
5. Constitutional Law: Jurisdiction: Due Process: Service of Process:
States. The Due Process Clause of the 14th Amendment to the U.S.
Constitution bars a court from exercising personal jurisdiction over an
out-of-state defendant, served with process outside the state, unless that
defendant has sufficient ties to the forum state.
6. Constitutional Law: Jurisdiction: Statutes: Due Process: States. A
two-step analysis is used to determine whether a Nebraska court may
validly exercise personal jurisdiction over an out-of-state defendant.
First, a court must consider whether Nebraska’s long-arm statute, Neb.
Rev. Stat. § 25-536 (Reissue 2016), authorizes the exercise of personal
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Cite as 25 Neb. App. 928jurisdiction over the defendant. Second, a court must consider whether
the exercise of personal jurisdiction over the defendant comports with
due process.
7. Constitutional Law: Jurisdiction: Statutes: Due Process. If a
Nebraska court’s exercise of personal jurisdiction would comport with
the Due Process Clause of the 14th Amendment, it is authorized by the
long-arm statute, Neb. Rev. Stat. § 25-536 (Reissue 2016).
8. Constitutional Law: Jurisdiction: Due Process: States: Words and
Phrases. To satisfy the Due Process Clause, a court may only exercise
personal jurisdiction over a defendant that is not present in the forum
state if that defendant has minimum contacts with the forum such that
the exercise of jurisdiction does not offend traditional notions of fair
play and substantial justice. To constitute sufficient minimum contacts
with the forum, the defendant’s conduct and connection with the forum
state must be such that he or she should reasonably anticipate being
haled into court there.
9. Jurisdiction: States. Whether a defendant’s contacts with the forum
state are sufficient to support the exercise of personal jurisdiction will
vary with the quality and nature of the defendant’s activity, but it is
essential in each case that there be some act by which the defendant
purposefully avails itself of the privilege of conducting activities
within the forum state, thus invoking the benefits and protections of
its laws.
10. ____: ____. Personal jurisdiction is proper where the defendant’s con-
tacts proximately result from actions by the defendant himself or herself
that create a substantial connection with the forum state.
11. Jurisdiction: States: Words and Phrases. General, or all-purpose,
jurisdiction arises where a defendant’s affiliations with the forum state
are continuous and systematic.
12. Jurisdiction: Words and Phrases. Specific, or case-linked, jurisdiction
requires that a claim arise out of or relate to the defendant’s contacts
with the forum.
13. ____: ____. With regard to specific personal jurisdiction, there must be
a substantial connection between the defendant’s contacts and the opera-
tive facts of the litigation.
14. Constitutional Law: Jurisdiction: States. Nebraska’s long-arm statute,
Neb. Rev. Stat. § 25-536 (Reissue 2016), extends Nebraska’s jurisdic-
tion over nonresidents having any contact with or maintaining any rela-
tion to this state as far as the U.S. Constitution permits.
15. Due Process: Jurisdiction: States. The benchmark for determin-
ing if the exercise of personal jurisdiction satisfies due process is
whether the defendant’s minimum contacts with the forum state are
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Cite as 25 Neb. App. 928such that the defendant should reasonably anticipate being haled into
court there.
16. Jurisdiction: States. Whether a defendant’s contacts with the forum
state are sufficient to support the exercise of personal jurisdiction will
vary with the quality and nature of the defendant’s activity, but it is
essential in each case that there be some act by which the defendant
purposefully avails itself of the privilege of conducting activities
within the forum State, thus invoking the benefits and protections of
its laws.
17. ____: ____. Personal jurisdiction is proper where the defendant’s con-
tacts proximately result from actions by the defendant himself or herself
that create a substantial connection with the forum state.
18. Jurisdiction: States: Contracts: Parties. To determine whether a
defendant’s contract supplies the contacts necessary for personal juris-
diction in a forum state, a court is to consider the parties’ prior negotia-
tions and future contemplated consequences, along with the terms of the
contract and the parties’ actual course of dealing.
19. Jurisdiction: Contracts: States. The existence of a contract with a
party in a forum state or the mere use of interstate facilities, such as
telephones and mail, does not, in and of itself, provide the necessary
contacts for personal jurisdiction.
20. ____: ____: ____. The existence of a contract and the use of interstate
communications may be considered in an overall personal jurisdic-
tion analysis.
21. Jurisdiction: Parties. When considering the issue of personal jurisdic-
tion, a court will consider the prior negotiations between the parties and
contemplated consequences, and if a substantial connection is created,
even a single contact can support jurisdiction.
22. Jurisdiction. An ongoing relationship, by itself, is not sufficient to
establish personal jurisdiction.
23. Jurisdiction: States. In analyzing personal jurisdiction, a court must
first establish whether there are necessary minimum contacts with
Nebraska, and then, if such minimum contacts have been established,
the contacts may be considered in light of other factors to determine
whether the assertion of personal jurisdiction would comport with fair
play and substantial justice.
Appeal from the District Court for Cass County: Paul W.
Korslund, Judge, Retired. Affirmed.
Aaron F. Smeall, of Smith, Slusky, Pohren & Rogers, L.L.P.,
for appellant.
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ROTH GRADING v. MARTIN BROS. CONSTR.
Cite as 25 Neb. App. 928Patrick T. Vint and Todd W. Weidemann, of Woods &
Aitken, L.L.P., for appellee.
Pirtle, Bishop, and A rterburn, Judges.
Bishop, Judge.
INTRODUCTION
Roth Grading, Inc., a Nebraska corporation doing business
as Impact Roller Technology (IRT), agreed to sell equipment to
Martin Brothers Construction (Martin Brothers), a California
corporation. After Martin Brothers refused to take delivery of
the equipment, IRT brought a breach of contract action against
Martin Brothers in the district court for Cass County. IRT
appeals from the district court’s dismissal of the action for lack
of personal jurisdiction. We affirm.
BACKGROUND
Martin Brothers’ motion to dismiss for lack of personal
jurisdiction was considered on the pleadings filed and the
affidavits submitted to the district court; they provide the fol-
lowing facts: IRT is a Nebraska corporation, with a principal
place of business in Plattsmouth, Nebraska. Martin Brothers
is a California corporation, with a principal place of busi-
ness in Sacramento, California. IRT’s principal product is the
“Impactor,” a heavy piece of equipment which employs a large
rotating drum to “break concrete, perform soil compaction, and
perform similar tasks for contractors in the construction and
mining industries.” On July 29, 2016, IRT received an infor-
mation request on its website from Felipe Martin, the president
of Martin Brothers.
Scott Roth, the president of IRT, spoke with Martin via
telephone on August 1, 2016. Martin informed Roth he was
interested in purchasing one of IRT’s Impactors, but wanted
to make sure it could be on site for a project by August 17.
Roth assured Martin an Impactor was available and could be
delivered. Roth and Martin discussed having a “price quote”
emailed to Martin Brothers, and Roth emailed a quote for
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Cite as 25 Neb. App. 928$143,400 that same day. This was a discounted purchase price
of $138,600, plus $4,800 for shipping from Plattsmouth to
Sacramento.
Subsequent conversations took place, but specific dates are
not provided. In one conversation, Martin informed Roth he
wanted to get a freight price from his own trucking company
to see if he could save on the $4,800 shipping price quoted.
Greg Aguilera, equipment manager for Martin Brothers, called
Roth and asked for the shipping specifications. In a subsequent
call, Aguilera informed Roth that Martin Brothers could save
$1,000 on shipping with their own trucking company. The par-
ties eventually agreed that IRT would ship the Impactor, but
would discount the shipping cost by $1,000. Aguilera and Roth
also discussed Martin Brothers’ obtaining a tractor to pull the
Impactor. In a subsequent call, Aguilera informed Roth that he
had found a tractor that could be rented for $2,500 per month
and that “he was happy with that price.” Aguilera also advised
that Martin Brothers had an equipment leasing company that
might be able to rent out the Impactor to other parties in
the future.
On August 5, 2016, Roth emailed to Martin Brothers a
“Contract Purchase Order,” which reflected the $1,000 ship-
ping discount, and was signed by Roth on that date. A project
engineer at Martin Brothers subsequently called Roth and
advised him that Martin Brothers was signing the purchase
contract and that he wanted to know if it could be emailed
back to the same email address that was used to send it. Roth
advised the project engineer that emailing the signed purchase
contract back to the same email address would be fine, and he
thanked him for the business.
On August 9, 2016, the project engineer emailed back the
purchase contract, signed by Martin as president of Martin
Brothers and hand dated August 9. The email stated, “‘[Roth],
See attached signed purchase order for the Impactor 3000h. Let
me know if you need anything else.’” The “.pdf file” attached
to the August 9 email contained the “IRT Contract Purchase
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Cite as 25 Neb. App. 928Order” signed by both parties. It also included, after the signed
purchase contract, an unsigned and untitled document. The
email did not reference the document that appeared after the
signed purchase contract.
While IRT was making preparations to ship the Impactor,
Roth received a call from Martin on August 16, 2016, in
which Martin stated that “Martin Brothers no longer wanted an
Impactor, citing some difficulties with their current project.”
Roth advised Martin that they already had a signed contract.
On August 22, Roth sent an email to Martin “expressing con-
cern that Martin Brothers was refusing to take delivery, and
advising that IRT would consider that a breach of the parties’
contract.” Martin responded by email the next day, claiming
that “they had never received a copy of the purchase order
executed by Roth” and that “pursuant to their prior conversa-
tion, they had ‘cancelled the order.’” A few hours later, Martin
sent another email stating that “although he did now see that
Roth had signed the purchase order, that there was a provi-
sion in the (unsigned) Martin Brothers document appended
to the .pdf file with the signed contract that allowed Martin
Brothers to ‘terminate’ the purchase because the Impactor had
never been shipped.” Roth emailed Martin Brothers stating
that IRT had never agreed to any cancellation of the order and
“would consider that a breach of contract.” In-house counsel
for Martin Brothers subsequently sent Roth a letter informing
him that Martin Brothers was refusing to take delivery and
that it was permitted to do so pursuant to the terms of the par-
ties’ agreement.
IRT filed a complaint against Martin Brothers on October
6, 2016, alleging breach of contract. On November 10, Martin
Brothers filed a motion to dismiss for lack of personal juris-
diction pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(2). Martin
Brothers alleged the following: It was a California corpora-
tion “with no continued or systemic presence in Nebraska”;
it had no continuing relationships or obligations with citi-
zens of Nebraska which would make it subject to regulation
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Cite as 25 Neb. App. 928and sanction by Nebraska; the transaction, to its knowledge,
was the only transaction Martin Brothers conducted with a
Nebraska resident; its sole contact with Nebraska was contact-
ing IRT to purchase a piece of equipment that was already
built; and therefore, its brief and cursory contact is “insuf-
ficient to meet the standard of minimum contacts necessary
so as not to offend traditional notions of fair play and sub-
stantial justice necessary to preserve the constitutional right to
due process.”
Counsel appeared in court on November 28, 2016. Martin
Brothers offered, and the court received, exhibit 1, the affida-
vit of the general counsel for the corporation. He averred that
Martin Brothers does not hold, nor ever sought, a license to
conduct business in Nebraska; owns no real estate, operates
no office, and maintains no physical presence in Nebraska;
and is engaged in no sustained or ongoing business trans-
actions in Nebraska. IRT offered, and the court received,
exhibit 2, the affidavit of Roth. Roth’s affidavit contained
the allegations set forth in its complaint, with the facts as
noted above.
The district court sustained Martin Brothers’ motion to
dismiss in an order entered on December 30, 2016. The
court concluded that “[m]erely contracting with a resident
of Nebraska is insufficient to provide the requisite contact
to confer personal jurisdiction.” The court further stated that
“there is no underlying business relationship, only a series of
communications resulting in a single transaction.” The court
found that it was “significant that Martin Brothers contacted
IRT based on IRT’s internet advertising, and therefore IRT
was the ‘aggressor’ in the transaction.” The court found that
“[t]here is no relationship between the parties other than the
single contract involved in this case” and that the “only basis
for jurisdiction is the series of communications from outside
Nebraska based on IRT’s internet posting.” Accordingly, the
court found there was “an insufficient basis for exercise of the
long-arm statute in this case.” IRT appeals.
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ROTH GRADING v. MARTIN BROS. CONSTR.
Cite as 25 Neb. App. 928ASSIGNMENT OF ERROR
IRT assigns that the district court erred by granting Martin
Brothers’ motion to dismiss.
STANDARD OF REVIEW
[1] When a trial court relies solely on pleadings and
supporting affidavits in ruling on a motion to dismiss for
want of personal jurisdiction, the plaintiff need only make
a prima facie showing of jurisdiction to survive the motion.
RFD-TV v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d
107 (2014).
[2,3] When reviewing an order dismissing a party from a
case for lack of personal jurisdiction under § 6-1112(b)(2), an
appellate court examines the question of whether the nonmov-
ing party has established a prima facie case of personal juris-
diction de novo. Nimmer v. Giga Entertainment Media, 298
Neb. 630, 905 N.W.2d 523 (2018). In reviewing the grant of a
motion to dismiss, an appellate court must look at the facts in
the light most favorable to the nonmoving party and resolve all
factual conflicts in favor of that party. Id.ANALYSIS
[4-10] IRT argues the district court erred by granting Martin
Brothers’ motion to dismiss for lack of personal jurisdiction.
We begin our analysis with the analytical framework for per-
sonal jurisdiction set forth in Hand Cut Steaks Acquisitions v.
Lone Star Steakhouse, 298 Neb. 705, 905 N.W.2d 644 (2018).
The Nebraska Supreme Court stated:
Personal jurisdiction is the power of a tribunal to
subject and bind a particular person or entity to its
decisions. Courts’ ability to validly exercise personal
jurisdiction is not without limit. The Due Process Clause
of the 14th Amendment to the U.S. Constitution bars
a court from exercising personal jurisdiction over an
out-of-state defendant, served with process outside the
state, unless that defendant has sufficient ties to the
forum state.
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Cite as 25 Neb. App. 928A two-step analysis is used to determine whether a
Nebraska court may validly exercise personal jurisdic-
tion over an out-of-state defendant. First, a court must
consider whether Nebraska’s long-arm statute [Neb.
Rev. Stat. § 25-536 (Reissue 2016)] authorizes the
exercise of personal jurisdiction over the defendant.
Second, a court must consider whether the exercise of
personal jurisdiction over the defendant comports with
due process.
Nebraska’s long-arm statute authorizes courts to exer-
cise personal jurisdiction over any person “[w]ho has
any . . . contact with or maintains any . . . relation to
this state to afford a basis for the exercise of personal
jurisdiction consistent with the Constitution of the United
States.” Thus, if a Nebraska court’s exercise of personal
jurisdiction would comport with the Due Process Clause
of the 14th Amendment, it is authorized by the long-arm
statute. . . .
To satisfy the Due Process Clause, a court may only
exercise personal jurisdiction over a defendant that is
not present in the forum state if that defendant has
“minimum contacts” with the forum such that the exer-
cise of jurisdiction “does not offend ‘traditional notions
of fair play and substantial justice.’” To constitute suf-
ficient minimum contacts, “the defendant’s conduct and
connection with the forum State [must be] such that
he [or she] should reasonably anticipate being haled
into court there.” Whether a defendant’s contacts with
the forum state are sufficient to support the exercise
of personal jurisdiction “will vary with the quality and
nature of the defendant’s activity, but it is essential in
each case that there be some act by which the defendant
purposefully avails itself of the privilege of conduct-
ing activities within the forum State, thus invoking the
benefits and protections of its laws.” Thus, “[j]urisdic-
tion is proper . . . where the [defendant’s] contacts
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Cite as 25 Neb. App. 928proximately result from actions by the defendant [him-
self or herself] that create a ‘substantial connection’
with the forum State.”
Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, 298
Neb. at 722-24, 905 N.W.2d at 660-61.
[11] Lone Star Steakhouse also addresses the two cat-
egories of personal jurisdiction: general jurisdiction and spe-
cific jurisdiction. General, or “all-purpose,” jurisdiction arises
where a defendant’s affiliations with the forum state are
continuous and systematic. Id. at 725, 905 N.W.2d at 662. In
the present case, there is no allegation that Martin Brothers’
contacts with Nebraska were so continuous and systematic
as to give rise to Nebraska having general jurisdiction over
this California corporation. The facts presented in this case
do not support a finding of general jurisdiction, and notably,
IRT does not make such an argument. Instead, IRT argues
that “[e]ven where, as here, a defendant’s general contacts
with the forum state may not be substantial, continuous, and
systematic, ‘specific jurisdiction’ over the defendant may be
present depending upon the quality and nature of individual
contact with the plaintiff.” Brief for appellant at 11 (emphasis
in original).
[12-14] Specific, or case-linked, jurisdiction requires that
a claim arise out of or relate to the defendant’s contacts
with the forum. Hand Cut Steaks Acquisitions v. Lone Star
Steakhouse, 298 Neb. 705, 905 N.W.2d 644 (2018). Thus,
there must be a substantial connection between the defend­
ant’s contacts and the operative facts of the litigation. Id.We agree that our analysis should focus on specific personal
jurisdiction, and we begin with Nebraska’s long-arm statute,
Neb. Rev. Stat. § 25-536 (Reissue 2016), which provides in
relevant part:
A court may exercise personal jurisdiction over a
person:
(1) Who acts directly or by an agent, as to a cause of
action arising from the person:
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....
(2) Who has any other contact with or maintains any
other relation to this state to afford a basis for the exercise
of personal jurisdiction consistent with the Constitution
of the United States.
Nebraska’s long-arm statute, § 25-536, extends Nebraska’s
jurisdiction over nonresidents having any contact with or
maintaining any relation to this state as far as the U.S.
Constitution permits. Nimmer v. Giga Entertainment Media,
298 Neb. 630, 905 N.W.2d 523 (2018). Section 25-536 “sug-
gests a broad application of the exercise of personal jurisdic-
tion by the courts of this state, an application which is sup-
ported by case law.” Quality Pork Internat. v. Rupari Food
Servs., 267 Neb. 474, 480, 675 N.W.2d 642, 648 (2004). “It
was the intention of the Legislature to provide for the broad-
est allowable jurisdiction over nonresidents.” Id. “Thus, if
a Nebraska court’s exercise of personal jurisdiction would
comport with the Due Process Clause of the 14th Amendment,
it is authorized by the long-arm statute.” Hand Cut Steaks
Acquisitions v. Lone Star Steakhouse, 298 Neb. at 723, 905
N.W.2d at 661.
Nebraska’s long-arm statute provides for personal jurisdic-
tion over business transactions in this State; therefore, we
consider whether the exercise of personal jurisdiction in the
present matter would comport with the Due Process Clause
of the 14th Amendment. To satisfy due process, we would
have to conclude that Martin Brothers had sufficient minimum
contacts with Nebraska and that the exercise of jurisdiction
over Martin Brothers in Nebraska does not offend traditional
notions of fair play and substantial justice. See Hand Cut
Steaks Acquisitions v. Lone Star Steakhouse, supra.[15-17] The benchmark for determining if the exercise
of personal jurisdiction satisfies due process is whether the
defend­ant’s minimum contacts with the forum state are such
that the defendant should reasonably anticipate being haled
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Cite as 25 Neb. App. 928into court there. Kugler Co. v. Growth Products Ltd., 265 Neb.
505, 658 N.W.2d 40 (2003). Whether a defendant’s contacts
with the forum state are sufficient to support the exercise of
personal jurisdiction will vary with the quality and nature of
the defendant’s activity, but it is essential in each case that
there be some act by which the defendant purposefully avails
itself of the privilege of conducting activities within the forum
state, thus invoking the benefits and protections of its laws.
Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, supra.Personal jurisdiction is proper where the defendant’s contacts
proximately result from actions by the defendant himself or
herself that create a substantial connection with the forum
state. Id.[18] IRT contends that Martin Brothers’ contacts with
Nebraska were greater than those of the Florida defendant
in Quality Pork Internat. v. Rupari Food Servs., supra, a
case in which the Nebraska Supreme Court concluded there
were sufficient minimum contacts with Nebraska to satisfy
the due process requirements for the exercise of specific
personal jurisdiction. In that case, a Nebraska company only
agreed to do business with a Texas distributor if the Florida
defendant agreed to pay for all the products ordered. When
the Florida defendant failed to pay after a third order, the
Nebraska company filed a lawsuit in Nebraska. The Florida
defendant claimed there was no personal jurisdiction because
it never made any sales directly to Nebraska, it did not apply
to do business in Nebraska, it did not have offices located in
Nebraska, it did not own property in Nebraska, and at no time
did any officer or employee visit Nebraska while employed
by the Florida company. The Nebraska Supreme Court con-
cluded that the Florida defendant induced a Nebraska company
to ship products to Texas and that it would not be unduly
burdensome for the Florida defendant to defend an action in
Nebraska. The court stated that the Nebraska company had
a valid interest in obtaining convenient and effective relief
which supported bringing the action in Nebraska. Further,
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Cite as 25 Neb. App. 928by purposefully conducting business with the Nebraska com-
pany, the Florida defendant “could reasonably anticipate that
it might be sued in Nebraska if it failed to pay for products
ordered from [the Nebraska company].” Quality Pork Internat.
v. Rupari Food Servs., 267 Neb. 474, 485, 675 N.W.2d 642,
652 (2004). Notably, the Nebraska Supreme Court stated that
“[t]o determine whether a defendant’s contract supplies the
contacts necessary for personal jurisdiction in a forum state,
a court is to consider the parties’ prior negotiations and future
contemplated consequences, along with the terms of the con-
tract and the parties’ actual course of dealing.” Id. at 484, 675
N.W.2d at 651.
IRT argues that “[t]he sum total of contacts in Quality
Pork [Internat.] consisted of an oral agreement to pay for
some food shipments to be sent to Texas, receiving invoices
in Florida, mailing two checks from Florida to Nebraska, and
two phone conversations after default.” Brief for appellant at
14. IRT points out that in the instant case, Martin Brothers
initiated the contact with IRT and “engaged in numerous
communications related to pricing, delivery, operation and
possible collateral uses of the product after purchase and,
ultimately, agreed to the purchase, confirmed by a signed
purchase agreement faxed to Nebraska.” Brief for appellant
at 12. “It is difficult to comprehend how [Martin Brothers]
can claim it could not have expected to be haled into court
in Nebraska, after unequivocally contracting to purchase a
six-figure piece of equipment and repeatedly contacting IRT
regarding [the] purchase.” Id.
[19] On the other hand, Martin Brothers argues that “[m]erely
contracting with a resident of a particular forum is insufficient
to provide the requisite contact to confer personal jurisdic-
tion.” Brief for appellee at 9. This assertion is supported in
Kugler Co. v. Growth Products Ltd., 265 Neb. 505, 512, 658
N.W.2d 40, 47-48 (2003), which states, “[T]he existence of a
contract with a party in a forum state or the mere use of inter-
state facilities, such as telephones and mail, does not, in and
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Cite as 25 Neb. App. 928of itself, provide the necessary contacts for personal jurisdic-
tion.” See, also, Nimmer v. Giga Entertainment Media, 298
Neb. 630, 905 N.W.2d 523 (2018) (while contract alone does
not establish minimum contacts, establishment of continuing
relationship with obligations to instate party could); RFD-TV
v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107(2014) (mail and telephone communication sent by defend­
ant into forum state may count toward minimum contacts, but
existence of contract or mere use of interstate facilities does
not, in and of itself, provide necessary contacts for personal
jurisdiction); Crete Carrier Corp. v. Red Food Stores, 254
Neb. 323, 576 N.W.2d 760 (1998) (jurisdiction not sought
on basis of single contract or few contacts; rather, companies
engaged in ongoing contractual and business relationship over
period of years).
[20,21] Kugler Co. goes on to state, “But this does not
mean that the existence of a contract and the use of interstate
communications may not be considered in the overall analysis.
265 Neb. at 512, 658 N.W.2d at 48. “We will also consider the
prior negotiations between the parties and contemplated con-
sequences.” Id. And, “[I]f a substantial connection is created,
even a single contact can support jurisdiction.” Id. at 512-13,
658 N.W.2d at 48. While the Nebraska Supreme Court con-
cluded there were sufficient minimum contacts for the exer-
cise of personal jurisdiction in Kugler Co., of significance is
that there was an ongoing relationship between the Nebraska
company and the New York defendant involved in that case,
and a substantial amount of product was sold to the Nebraska
company. (Between 1992 and 1999, 399 tons of nitrogen prod-
ucts were sold at an approximate cost of $179,472.) The prod-
ucts were then sold within Nebraska. The Nebraska Supreme
Court stated that “[p]arties who ‘“‘reach out beyond one state
and create continuing relationships and obligations with citi-
zens of another state’ are subject to regulation and sanctions in
the other State for the consequences of their activities.”’” Id.
at 513, 658 N.W.2d at 48.
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Cite as 25 Neb. App. 928[22] Applied here, both Quality Pork Internat. and Kugler
Co. would support personal jurisdiction when a single con-
tract is involved; however, the existence of a contract or the
mere use of interstate communications does not, in and of
itself, provide the necessary contacts for personal jurisdic-
tion. Rather, whether a defendant’s contract supplies the
contacts necessary for personal jurisdiction in a forum state,
a substantial connection must be created, which calls for
consideration of the parties’ prior negotiations and future con-
templated consequences, along with the terms of the contract
and the parties’ actual course of dealing. See Quality Pork
Internat. v. Rupari Food Servs., 267 Neb. 474, 675 N.W.2d
642 (2004), and Hand Cut Steaks Acquisitions v. Lone Star
Steakhouse, 298 Neb. 705, 905 N.W.2d 644 (2018). Quality
Pork Internat. v. Rupari Food Servs., supra, involved ongoing
product shipments to a Texas distributor and ongoing pay-
ments by the Florida defendant, and Kugler Co. v. Growth
Products Ltd., 265 Neb. 505, 658 N.W.2d 40 (2003), involved
ongoing product sales over many years. The quality and
nature of these ongoing business transactions was found to
satisfy the requirement of a substantial connection between
the nonresident defendant and the forum state, thus establish-
ing the necessary minimum contacts. However, we also note
that an ongoing relationship, by itself, is not sufficient to
establish personal jurisdiction. See RFD-TV v. WildOpenWest
Finance, 288 Neb. 318, 849 N.W.2d 107 (2014) (television
programming service claimed breach of affiliation agreement;
although monthly payments were made over course of at least
2 years, actual business dealings were extremely limited, and
court found insufficient minimum contacts for personal juris-
diction). Clearly, the quality and nature of the ongoing busi-
ness relationship is important, not just the fact that a business
relationship exists.
We conclude a substantial connection was not established
between Martin Brothers and Nebraska as a result of the
execution of a single purchase order contract, along with the
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ROTH GRADING v. MARTIN BROS. CONSTR.
Cite as 25 Neb. App. 928emails and telephone calls which took place between July
29 and August 16, 2016. Unlike Quality Pork Internat. and
Kugler Co., the facts alleged here do not establish that Martin
Brothers and IRT negotiated or contracted for any kind of
ongoing, substantive business relationship; rather, the contract
was for the purchase of a single piece of equipment, albeit
of significant value. Although Martin Brothers did mention
it had an equipment leasing company that might be able to
rent out the Impactor to other parties in the future, there is no
allegation that any other discussions were had or agreements
reached in that regard. Therefore, even when considering the
facts in the light most favorable to IRT, we conclude IRT failed
to make a prima facie showing that Martin Brothers had suf-
ficient minimum contacts with Nebraska to subject them to the
jurisdiction of our courts.
[23] Having determined that Martin Brothers did not have
the necessary minimum contacts to support the exercise of
personal jurisdiction in Nebraska, we need not weigh the
facts of the case to determine whether the exercise of per-
sonal jurisdiction would comport with fair play and sub-
stantial justice, which involves other considerations (such
as the burden on the defendant, or as argued by IRT, the
forum state’s interest in adjudicating the dispute) for estab-
lishing jurisdiction upon a lesser showing of minimum con-
tacts. See Crete Carrier Corp. v. Red Food Stores, 254 Neb.
323, 576 N.W.2d 760 (1998) (determination of whether dis-
trict court has jurisdiction is two-step process; first, court
must establish necessary minimum contacts with Nebraska,
and then, if such minimum contacts have been established,
contacts may be considered in light of other factors to
determine whether assertion of personal jurisdiction would
comport with fair play and substantial justice). Since these
other factors or considerations only come into play once
minimum contacts are established, we need not consider
them in the present appeal given our conclusion that the
facts do not set forth the necessary minimum contacts for
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ROTH GRADING v. MARTIN BROS. CONSTR.
Cite as 25 Neb. App. 928a Nebraska court to exercise personal jurisdiction over
Martin Brothers.
CONCLUSION
For the reasons set forth above, we affirm the district
court’s order dismissing IRT’s complaint for lack of personal
jurisdiction.
A ffirmed