Odom Indus., Inc. v. Diversified Metal Prods., Inc., Case No. 1:12-cv-309

ODOM INDUSTRIES, INC., Plaintiff,

v.DIVERSIFIED METAL PRODUCTS, INC. et al., Defendants.

Case No. 1:12-cv-309

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Dated: September 24, 2012

Judge Timothy S. Black

ORDER THAT: (1) DEFENDANT DMP'S MOTION TO DISMISS OR IN THE

ALTERNATIVE TO TRANSFER VENUE (Doc. 6) IS DENIED; and(2) DEFENDANT DMP'S MOTIONS TO STRIKE (Docs. 30, 31) ARE DENIED

This civil action is before the Court on Defendant Diversified Metal Products'¹ motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) or in the alternative to transfer venue (Doc. 6), and the parties'² responsive memoranda (Docs. 24, 25, 28). Also before the Court are Defendant DMP's motions to strike (Docs. 30, 31) and the parties' responsive memoranda (Docs. 32, 33).

I. BACKGROUND FACTS AS ALLEGED BY PLAINTIFF

A. Odom's Business And Location

Odom is a custom steel fabrication company, and its sole shop and office arelocated in Milford, Ohio. (Doc. 25, Ex. 2 at ¶ 2). Odom does not maintain an office in any other state. (Id., Ex. 3 at ¶ 52). Therefore, all communications and documents transmitted by DMP to Odom, referenced below, were done through contact by DMP with Odom's office in Ohio, and all fabrication completed by Odom at DMP's request, also referenced below, was at Odom's shop in Ohio. (Id., Ex. 2 at ¶ 2; Ex. 3 at ¶ 2).

One line of Odom's business is the fabrication of ASME ("American Society of Mechanical Engineers") heads. (Doc. 25, Ex. 3 at ¶ 3). Projects subject to the ASME Code must adhere to very strict quality assurance and quality control requirements. This action arises from a dispute between Odom and DMP regarding Odom's fabrication of two ASME Semi-Ellipsoidal Heads for DMP (the "Heads" or the "Project"), and DMP's alleged conversion of Odom's property and misrepresentations concerning the same.

B. DMP Has Continuously Reached Out To Odom In Ohio To Conduct Business With It

Since 2007, DMP has repeatedly reached out to Odom in Ohio to solicit quotes and revised quotes from Odom. (Doc. 25, Ex. 2 at ¶ 3). It was DMP that initially reached into Ohio and initiated contact with Odom to solicit a quote from Odom, and it was DMP that continued to reach into Ohio to solicit quotes for additional projects from Odom. (Id.) Since 2007, DMP has contacted Odom in Ohio and requested that Odom provide quotes and revised quotes for at least 8 projects. Three of these projects resulted in DMP issuing Purchase Orders to Odom in Ohio (one of which is at issue in this litigation). There have been countless communications (including, but not limited to, via telephonecalls, conference calls, emails, and facsimiles) between DMP and Odom since 2007 regarding these projects and proposed projects. (Doc. 25, Ex. 2 at ¶¶ 4-5; Ex. 3 at ¶¶ 4-5).

A. DMP's Initial Solicitation Of Odom And Issuance Of Purchase Order # 36631

In late 2007, DMP first initiated contact with Odom in Ohio. At that time, DMP reached out to Odom and requested that it submit a proposal for the fabrication of one Semi-Head with a 76" outside diameter. (Doc. 25, Ex. 2 at ¶ 6). Odom's sales representative had several discussions with DMP representatives regarding the project, including negotiations over the terms upon which it would complete the work. (Id. at ¶ 7).

On December 19, 2007, Odom submitted a proposal for the 76" Semi-Head to DMP in accordance with DMP's request. Odom's proposal provided that it would fabricate the Semi-Head, but excluded shipping and instead placed responsibility for shipping the 76" Semi-Head from Milford, Ohio, upon DMP. (Doc. 25, Ex. 2 at ¶ 8). On December 20, 2007, DMP issued Purchase Order No. 36631 via facsimile to Odom's office in Ohio, which contained DMP's proposed terms of its contractual arrangement with Odom for the project. The amount of the Purchase Order was $26,407. (Id. at ¶ 9). Odom thereafter accepted DMP's Purchase Order. (Id. at ¶ 10).

DMP Purchase Order No. 36631 created continuing obligations between the parties. It required Odom to custom fabricate the 76" Semi-Head in its shop located in Milford, Ohio over the following two months so that it was complete and ready to ship by February 22, 2008. In exchange, DMP was obligated to pay Odom the Purchase Orderprice in two separate payments. (Doc. 25, Ex. 2 at ¶ 11). DMP or an agent or vendor of DMP was responsible for traveling to Odom's shop in Ohio to pick-up the completed 76" Semi-Head and ship it from Ohio to its final destination. (Id., Ex. 2 at ¶ 12; Ex. 3 at ¶ 6).

On February 6, 2008, DMP issued "Reissue #1" of Purchase Order No. 36631 to Odom via facsimile sent to Odom's office in Ohio. (Doc. 25, Ex. 2 at ¶ 14). "Reissue #1" of Purchase Order No. 36631 changed the delivery date for the 76" Semi-Head to April 26, 2008, and clarified that Odom was not shipping the product. (Id. at ¶ 15). Odom successfully completed the fabrication of the 76" Semi-Head at its shop, and DMP, or a shipping company of DMP, took possession of the 76" Semi-Head at Odom's shop in Ohio for shipping. (Id., Ex. 2 at ¶ 16; Ex. 4). DMP issued two checks to Odom for this project and sent them to Odom's office in Ohio. (Id., Ex. 2 at ¶ 17).

B. DMP's Continued Solicitation Of Odom And Issuance Of Purchase Order # 36921

Shortly after DMP initiated contact with Odom with respect to the project which resulted in DMP issuing Purchase Order #36631, DMP again reached out to solicit a quote from Odom for another project. DMP requested that Odom submit a quote for the fabrication of one Semi-Head with a 78" internal diameter. (Doc. 25, Ex. 2 at ¶ 18). Odom's sales representative again had several discussions with DMP representatives regarding the 78" Semi-Head project, including negotiations over the terms upon which Odom would complete the work. (Id. at ¶ 19).

On February 6, 2008, Odom submitted a proposal for the 78" Semi-Head inaccordance with DMP's request. Odom's proposal provided that it would fabricate the Semi-Head, but excluded shipping and instead placed responsibility for shipping the 78" Semi-Head from Milford, Ohio, upon DMP. (Doc. 25, Ex. 2 at ¶ 20). On February 8, 2008, DMP issued Purchase Order No. 36921 via facsimile to Odom's office in Ohio, which contained DMP's proposed terms of its contractual arrangement with Odom for the project. The amount of the Purchase Order was $16,950. (Id. at ¶ 21). Odom thereafter accepted DMP's Purchase Order. (Id. at ¶ 22).

Purchase Order No. 36921 also created continuing obligations between the parties with provisions affecting Ohio. It required Odom to custom fabricate the 78" Semi-Head in its shop located in Milford, Ohio over the following three months so that it was complete and ready to ship by May 2, 2008. In exchange, DMP was obligated to pay Odom the Purchase Order price in two separate payments. (Doc. 25, Ex. 2 at ¶ 23).

Odom was not responsible for shipping per the terms of Purchase Order which instead provided that DMP (or an agent or vendor of DMP) was responsible for traveling to Odom's shop in Ohio to pick-up the completed 78" Semi-Head and ship it from Ohio to its final destination. (Doc. 25, Ex. 2 at ¶ 24). Odom successfully completed the fabrication of the 78" Semi-Head at its shop, and DMP, or a shipping company of DMP, took possession of the 78" Semi- Head at Odom's shop in Ohio for shipping. (Id. at ¶ 25). DMP issued checks to Odom for this project and sent them to Odom's office in Ohio. (Id. at ¶ 26).

C. DMP's Continued Solicitation Of Odom For Quotes And Revised Quotes, And Issuance Of A Letter Of Intent And Then Purchase Order # 42958 To Odom (The Project At Issue In This Litigation)

In approximately November 2008, DMP again reached out to Odom to solicit a quote for yet another project. DMP requested that Odom submit a quote for the fabrication of a 2:1 ellipsoidal vessel head, and inquired whether Odom could roll an additional thick steel cylinder. (Doc. 25, Ex. 2 at ¶ 27).

For a two year period, from November 2008 to November 2010, DMP reached out to Odom multiple times and requested additional information, and multiple revised quotes from Odom with different variations, terms, and requirements for this project. (Doc. 25, Ex. 2 at ¶¶ 28, 29). Odom submitted at least four quotes/revised quotes to DMP pursuant to DMP's requests over the two-year period. (Id., Ex. 2 at ¶ 30; Ex. 3 at ¶ 8). Over this period, there were countless communications between DMP and Odom concerning the proposed project. (Id., Ex. 2 at ¶ 31).

On November 10, 2010, DMP issued a letter of intent to Odom for the fabrication of 2 semi-ellipsoidal heads (the "Heads" or "the Project"). (Doc. 25, Ex. 2 at ¶ 32; Ex. 3 at ¶ 9). Thereafter, on November 19, 2010, DMP issued Purchase Order No. 42958 via facsimile to Odom's office in Ohio, which contained DMP's proposed terms of its contractual arrangement with Odom for the fabrication of the Semi-Ellipsoidal Heads. The amount of the Purchase Order was $208,376. (Id., Ex. 2 at ¶ 33; Ex. 3 at ¶ 10). Odom thereafter accepted DMP's Purchase Order. (Id. at ¶ 34; Id. at ¶ 11).

The Purchase Order created continuing obligations between the parties withprovisions affecting Ohio. It required Odom to custom fabricate the Semi-Ellipsoidal Heads in its shop located in Milford, Ohio over the following two months so that it was complete and ready to ship by January 21, 2011. In exchange, DMP was obligated to pay Odom the Purchase Order price in three separate payments. (Doc. 25, Ex. 2 at ¶ 35; Ex. 3 at ¶ 12).

Odom fabricated the Semi-Ellipsoidal Heads at its shop in Ohio. (Doc. 25, Ex. 2 at ¶ 36; Ex. 3 at ¶ 13). The Heads were subject to the ASME Engineering Code for pressure vessels. (Id., Ex. 3 at ¶ 14). Odom hired a third-party company, Defendant TISI, whose office with whom Odom communicated is located in Cincinnati, Ohio, to conduct Radiographic ("RT") Non-Destructive Examination ("NDE") and Testing of the Heads required by the applicable ASME Code at Odom's shop in Milford,...