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Accura Zeisel Machinery Corp. v. Timco

December 1, 1997

ACCURA ZEISEL MACHINERY CORP., PLAINTIFF-APPELLANT,
v.
TIMCO, INC. AND KENNETH BURBAGE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication December 1, 1997.

Before Judges Shebell, A.a. Rodriguez and Coburn. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

On August 8, 1996, plaintiff, Accura Zeisel Machinery Corp. ("Accura"), filed a complaint in the Law Division against Timco, Inc. ("Timco") and Kenneth Burbage ("defendants"). On September 16, 1996, defendants filed a notice of removal to the United States District Court for the District of New Jersey. However, on October 23, 1996, the District Court Judge remanded the matter back to the State Court. On November 20, 1996, defendants moved to dismiss Accura's complaint for lack of personal jurisdiction or, in the alternative, on grounds of forum non conveniens. After oral argument, the Law Division Judge held that personal jurisdiction over the defendants was not established. An order of dismissal was entered on January 10, 1997. Accura appeals and we reverse and remand.

Accura's complaint alleges damages arising from the August 1995 sale of a 1983 Horizontal Machining Center by Timco to Accura. The Machining Center is a computerized machine weighing over 20 tons that "cuts," or makes, metal parts.

Accura is a New Jersey corporation with its principal place of business in Englewood. Accura is in the business of buying and selling industrial machinery. Henry Zeisel is Accura's Chief Executive Officer.

Timco, a Tennessee corporation with offices located in Columbia, Tennessee, engages in the business of buying and selling new and used metal working machinery. In the five years preceding the filing of the complaint, Timco made four sales of machinery to New Jersey commercial purchasers, including the sale to plaintiff. These machinery sales totalled $266,120.00, representing 2% of Timco's sales during the five year period.

Burbage was a Timco sales representative working out of Timco's Tennessee office. Burbage resides in Tennessee and has made only one visit to New Jersey, a one-day sales trip to Pennington.

The Machining Center, manufactured in 1983, was owned and used by Baldor, Inc. ("Baldor"), a Mississippi corporation, at its Mississippi plant from 1983 to 1993. In July 1993, Timco purchased the Machining Center from Baldor. In March 1994, Timco sold it to FMC Corporation, Inc. ("FMC") also located in Mississippi.

FMC placed the Machining Center on the floor at its Mississippi plant. The machine was under power and cycling or dry-running, but apparently was never used for making parts. In or about November 1994, FMC requested that Timco buy the machine back from them. Timco complied in December 1994.

In August 1995, Timco listed the Machining Center for sale in the "Used Equipment Directory," a nationally circulated trade publication produced in New Jersey. Zeisel responded to the advertisement by telephoning Timco's office in Tennessee. He spoke to Burbage about the Machining Center and requested a price quote. Zeisel alleges Burbage described the Machining Center as "in good operating condition," and that "FMC was disposing of the machine because FMC required a larger machine. Burbage alleges that Zeisel stated he was buying the Machining Center because he had a potential buyer for the machine.

On August 14, 1995, Burbage, in response to Zeisel's request, faxed a price quote on Timco's letterhead to Accura's office in New Jersey. The price quoted was $79,500, FOB Tupelo, Mississippi. The quotation letter listed the condition of the Machining Center as "very good," and its age as "New in 1983." It also noted that the Machining Center was "in plant under power," which Accura contends means that the machine was being used by FMC. The quote listed the Machining Center's specifications, stating ...


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