Joss v. Ford Motor Company et al

Filing 45

FINDINGS AND RECOMMENDATIONS re 33 MOTION to Strike 31 Response to Motion, Portions of Declaration of Yuichi Hashiguchi; 27 MOTION to Dismiss for Lack of Jurisdiction filed by Bridgestone Corporation. IT IS ORDERED that Joss's motion to strike 33 is DENIED. IT IS RECOMMENDED that Bridgestone's motion to dismiss 27 be DENIED. Objections to F&R due by 1/28/2009. Signed by Magistrate Carolyn S. Ostby on 1/14/2009. (JDH)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF MONTANA B IL L IN G S DIVISION L A U R A ANN JOSS, individually and a s Personal Representative of the E S T A T E OF JOHN W. JOSS, J.R., d e c e as e d , and as natural guardian and n e x t friend of JACKSON C. JOSS, a m in o r, Plaintiffs, S T A C Y PERINE BARBER and A N G IE PERINE, individually and as P e rs o n a l Representatives of the Estate o f HUBERT DON PERINE, deceased, Intervening Plaintiffs, C V -0 8 -6 8 -B L G -R F C -C S O F I N D I N G S AND R E C O M M E N D A T I O N S OF U N I T E D STATES M A G I S T R A T E JUDGE AND ORDER vs. B R ID G E S T O N E CORPORATION, a J a p a n e se corporation; B R ID G E S T O N E /F IR E S T O N E N O R T H AMERICAN TIRE, LLC, as s u cc es s o r to B R ID G E S T O N E /F IR E S T O N E , INC., a foreign corporation; and FORD M O T O R COMPANY, a foreign c o rp o ra tio n , Defendants. -1- Plaintiff Laura Ann Joss ("Joss") brought this wrongful death and survival a c tio n against the Defendants, alleging strict product liability and breach of w a rran ty . Pending before the Court is Defendant Bridgestone Corporation's (" B rid g e s to n e 's " ) Motion to Dismiss for Lack of Personal Jurisdiction (Court's D o c . No. 27). Joss and intervening plaintiffs Stacy Perine Barber and Angie P e rin e ("Barber") (collectively "plaintiffs") resist the motion. Joss also moves to s trik e portions of the affidavit of Bridgestone employee Yuichi Hashiguchi (" H a sh ig u c h i" ) (Court's Doc. No. 33). For reasons stated below, the Court will d e n y Joss's motion to strike, and recommend denying Bridgestone's motion to d is m is s .1 I. BACKGROUND A. T h e Accident F o r purposes of the motion to dismiss, the Court accepts the following fac tu a l allegations of the Complaint and the Complaint In Intervention as true. On July 7, 2007, Joss's husband, John W. Joss, Jr., was driving a 2002 Ford F3 5 0 crew cab diesel pick-up truck ("Ford truck") eastbound on U.S. 212 in P o w d e r River County, Montana. Complaint (Court's Doc. No. 1), 14, 18. 1 Chief Judge Cebull has referred this case to the undersigned for all pretrial purposes p u r s u a n t to 28 U.S.C. 636(b), including submission of proposed findings and recommendations. Court's Doc. No. 44. -2- Joss was a passenger in the middle front seat, and the couple's minor son, Jackson J o s s , was a passenger in the middle rear seat. Id., 15. Barber's father, Hubert D o n Perine, was a front seat passenger in the Ford truck. Complaint in In te r v e n tio n (Court's Doc. No. 19), 12. The Ford truck was equipped with B rid g e s to n e Dueler M/T steel-belted radial tires ("Bridgestone tires") designed, d e v e lo p ed , tested, manufactured and/or distributed by Bridgestone and Firestone. Complaint, 17. The right front Bridgestone tire catastrophically failed and John W . Joss Jr. lost control of the Ford truck. Id, 18. The Ford truck left the road a n d rolled. Id., 21. The Ford truck's roof crushed inward, killing John W. R o s s , Jr., and Hubert Don Perine. Id.; Complaint in Intervention, 18. None of the plaintiffs or injured parties are citizens or residents of M o n ta n a . B. Jurisdictional Facts It is undisputed that Bridgestone is a Japanese corporation, and is the p a re n t corporation of defendant Bridgestone/Firestone North American Tire, LLC (" F ire s to n e " ), an Ohio Corporation with its principal offices in Nashville, T e n n e ss e e . Complaint, 6-7. Additionally, Joss alleges that Bridgestone s u p p lie s tires to retail outlets in Montana directly and/or indirectly through its a g e n t, Firestone. Id., 7. Joss alleges this Court has personal jurisdiction -3- because: Defendants transact business in this state, have c o m m itte d acts that resulted in the accrual of a tort within th is state, insure risks located in this state, and enter into c o n trac ts to be performed in this state. Exercise of p e rs o n a l jurisdiction pursuant to Montana's long arm s tatu te is consistent with due process because Defendants h a v e purposefully availed themselves of the privilege of d o in g business in the forum including by selling ... tires in Montana and engaging in direct advertising and m ark e tin g in Montana and through the internet." Id ., 10-11; see also Complaint in Intervention, 7-8. Bridgestone disputes Joss's personal jurisdiction allegations through the a ffid a v it of an employee, Yuichi Hashiguchi. Court's Doc. No. 28, Ex. A (" H a s h ig u c h i Aff."). According to Hashiguchi, "Bridgestone designs, m a n u fa c tu re s , and sells tires only in Japan through transactions that are governed b y Japanese law." Hashiguchi Aff., 4. Any tires manufactured by Bridgestone th a t are sold in Montana or the United States are purchased from Bridgestone in J a p a n . Id., 5. "Bridgestone manufactured tires are then sold by Firestone and o th e r third parties in the United States. Bridgestone exercises in principle no c o n tro l over where and to whom such tires are sold." Id. It is unclear what H a s h ig u c h i means by using the qualifier "in principle". But Hashiguchi, relying o n the Complaint's description of the tire, does admit that Bridgestone m a n u fa c tu re d and sold the subject tire in Japan. Id., 8. He also avers that -4- "Bridgestone had no involvement in the subsequent sale or redistribution of the tire in the United States." Id. H a s h ig u c h i specifically denies that Bridgestone has contacts with Montana. Bridgestone is not licensed to do business in Montana, does not have a registered a g e n t for service of process in Montana, and has not authorized anyone to act as its agent for service of process in Montana. Id., 9. Bridgestone does not do b u s in es s in Montana, nor has it ever done so. Id., 10. Bridgestone has not d e s ig n e d , manufactured, sold, delivered, or issued warranties on any good or p ro d u c t in Montana, nor has it participated in the decision to sell or deliver any g o o d or product to Montana. Id. Bridgestone has not conducted a recall or rep la c e m e n t program of any kind in Montana. Id. Finally, Bridgestone and F ire sto n e are separate corporations, and Bridgestone does not conduct business in M o n ta n a through Firestone. Id., 13. J o s s and Barber argue that Bridgestone knows, and intends, that its tires are w id e ly distributed and sold in the United States, including in Montana. Bridgestone's 1999 annual report states that it is "becoming an industry leader in th e Americas," and is North America's second largest tire supplier, with a 20 p e rc e n t market share. Court's Doc. No. 31, Ex. 12 at 4-5. The annual reports fu rth e r describe Bridgestone's "goal of being No. 1 or at least a strong No. 2 in -5- every large market." Court's Doc. No. 31, Ex. 12 at 5. It also notes, "Continuing g a in s in productivity have strengthened our competitive position greatly in the A m e rica s ." Id. The 1999 report describes Bridgestone's North American p a s s e n g er tire business: "In the replacement market, we promote our tires through d iv e rs e channels, including 1,550 company-owned stores, our Family Channel n e tw o rk of some 13,000 independent dealers, and supply arrangements with n a tio n al mass merchandisers. In original equipment tires, our North American b u s in es s includes close working relationships with the leading automakers[.]" Id. a t 4. The 1998 annual report states that "sales growth in North America o u tp a ce d even the strong growth in North American demand. It reflects the s u c c e s s of our multibrand strategy." Court's Doc. No. 31, Ex. 10 at 8. This rep o rt also cites sales of $7.5 billion in the Americas, amounting to 43.8 percent o f Bridgestone's consolidated net sales and 31.1 percent of its total operating p ro fit. Id. In fact the Americas were "our biggest source of consolidated sales." Id. Joss also provides photocopies of yellow pages advertisements from s e v e ra l of Montana's larger communities. These advertisements reflect that B rid g e s to n e tires are widely available, advertised and promoted in Montana. -6- Court's Doc. No. 31, Ex. 1-6. II. P A R T I E S ' ARGUMENTS A. M o tio n to Dismiss B rid g e s to n e argues, first, that Montana's long-arm statute does not confer p e rs o n a l jurisdiction over it. General personal jurisdiction does not exist because B rid g e s to n e is not "found" in Montana and conducts no business in Montana. Defendant Bridgestone Corporation's MTD (Court's Doc. No. 28) at 5-6. Bridgestone also argues that the provisions of Montana's long-arm statute p ro v id in g specific personal jurisdiction are not applicable because: (a) B rid g e s to n e does not engage in the transaction of business in Montana; (b) B rid g e s to n e 's allegedly tortious acts would have occurred in Japan; and, (c) B rid g e s to n e has not contracted to insure a risk in Montana or entered into a c o n tra c t for services to be rendered or materials to be furnished in Montana. Id. a t 6-8. S e co n d , Bridgestone argues that the exercise of personal jurisdiction over it in Montana would violate due process. Specific jurisdiction does not exist b e c a u s e Bridgestone's acts of manufacturing and selling the tire in Japan do not c o n s titu te purposeful availment of the laws and protections of Montana, nor could B rid g e s to n e reasonably anticipate being haled into Montana court. Id. at 9-11. -7- Finally, Bridgestone has not forum related activities, thus the plaintiffs' claims d id not arise from such activities. Id. at 13. B rid g e s to n e concludes that general personal jurisdiction does not exist, and th a t Firestone's contacts with Montana may not be imputed to Bridgestone. Id. at 1 4 -1 7 . J o s s responds that Bridgestone has sufficient contacts with Montana to p e rm it exercise of personal jurisdiction. First, specific jurisdiction exists under th e long-arm statute because Bridgestone manufactured the defective tire, and the to rt accrued in Montana where the injury occurred. Pl's Response to Defendant B r id g e s to n e Corporation's MTD (Court's Doc. No. 31) at 9-10. Federal due p ro c es s is satisfied because Bridgestone places its tires in the stream of commerce a n d directs its activities toward obtaining the benefit of sales in the United States, in c lu d in g Montana. Id. at 10-12, S e co n d , Joss argues that Bridgestone exercises such control over its s u b s id ia ry , Firestone, that Firestone's contacts should be imputed to Bridgestone u n d e r the single business enterprise theory. Joss argues that Bridgestone oversees F ire sto n e 's operations, monitors its productivity, provides Firestone with officers, p ro v id e s Firestone with tires and technology and takes responsibility for problems w ith those tires. Id. at 12-13. -8- Third, Joss argues that Bridgestone should be collaterally estopped from litig a tin g the issue of personal jurisdiction in the United States because many c o u rts have previously determined that personal jurisdiction over Bridgestone e x is ts . Joss cites numerous findings by courts that Bridgestone and Firestone are n o t operated as separate business entities. Id. at 14-18. F in a lly , Joss argues that dismissal on jurisdictional grounds would be im p ro p e r until the plaintiffs have had an opportunity to conduct discovery on that is s u e. Id. at 18-20. Barber responds, similar to Joss, that Bridgestone's own contacts with M o n ta n a are sufficiently extensive to confer personal jurisdiction, that Firestone's c o n ta c ts with Montana should be imputed to Bridgestone, and that, alternatively a s ta y of the motion to allow plaintiffs discovery on jurisdiction should be granted. Intervenors' Opposition to Defendant Bridgestone Corporation's MTD (Court's D o c . No. 30). Additionally Barber argues that transfer of title to the tires from B rid g e s to n e to Firestone in Japan does not insulate Bridgestone from personal ju ris d ic tio n . Id. at 5-6. Also, Bridgestone has extensive facilities in the United S ta te s , and delivered thousands of tires to Montana in connection with a recall. Id. at 6-8. -9- Bridgestone replies separately to Joss and Barber. To Joss, Bridgestone rep lie s that, under Montana's long-arm statute, both the injury-causing event and th e injury itself must occur in Montana. Defendant Bridgestone Corporation's R e p ly (Court's Doc. No. 37) at 2-3. Bridgestone also argues that personal ju ris d ic tio n under an agency or alter ego theory cannot be based on informal la n g u ag e used by a corporation in its annual report and other public statements. Id. at 5. Bridgestone states that the "single business enterprise" theory, under w h ic h Joss would impute Firestone's contacts to Bridgestone, has not been a d o p ted in Montana, and the case Joss relies on was recently vacated. Id. at 7. Finally, Bridgestone argues that collateral estoppel is inapplicable because the q u e s tio n has not been litigated in Montana. Id. at 8-10. In its separate reply to the Intervenors, Bridgestone adds that plaintiffs' c a s e s are outdated or inapposite. Defendant Bridgestone Corporation's Reply to In te r v e n o r s (Court's Doc. No. 39). Bridgestone attaches to both replies copies of m u ltip le court rulings finding no personal jurisdiction over Bridgestone. B. M o tio n to Strike J o s s moves to strike portions of Yuichi Hashiguchi's affidavit submitted by B rid g e s to n e . Joss argues that paragraph 10 of Hashiguchi's affidavit is im p ro p e rly authenticated because it is based on "best knowledge" rather than -10- personal knowledge. Plaintiffs' Objection and Motion to Strike Portions of D e c la r a tio n of Yuichi Hashiguchi (Court's Doc. No. 33) at 2. Also, paragraph 1 1 c o n ta in s improper legal conclusions. Id. Finally, many factual statements in th e affidavit are disputed, specifically those in paragraphs 4, 5, and 13-16, and the d is p u te s must be resolved in Plaintiffs' favor. Id. at 3-4. Joss also notes that H a s h ig u c h i's affidavit omits the claim that Bridgestone does not market tires in th e United States, a statement present in earlier Bridgestone affidavits. Id. at 4. Bridgestone responds that, in the second paragraph, Hashiguchi states that th e affidavit is based on personal knowledge. Defendant Bridgestone C o r p o r a tio n 's Response to Plaintiffs' Objection and Motion to Strike (Court's D o c . No. 38) at 2. Bridgestone also argues that paragraph 11 is a factual a s s e rtio n , not a legal conclusion. Id. at 3-4. Finally, Bridgestone argues that the P la in tiffs have not countered Hashiguchi's affidavit with evidence, and present o n ly conclusory allegations in support of personal jurisdiction. Id. at 5. J o s s replies that Hashiguchi's affidavit is impermissible hearsay, and that F ire sto n e 's use of Bridgestone's trademark, and marketing, amount to B rid g e s to n e doing business in Montana. Plaintiffs' Reply (Court's Doc. No. 41) a t 1-5. Additionally, Bridgestone did not challenge Joss's motion to strike with res p e c t to paragraphs 5, 14, and 15, thus, the Court should strike these -11- paragraphs. Id. at 5-6. III. D IS C U S SIO N A. M o tio n to Strike T h e Court will deny Joss's motion to strike portions of the Hashiguchi a ffid a v it. Though paragraph 10 of the affidavit states it is based on "best k n o w led g e ," in paragraph 2 the affidavit recites that Hashiguchi has "personal k n o w led g e of the facts stated in this affidavit and they are true and correct." Thus, although the Court is uncertain why the affidavit added the "best k n o w led g e " statement in paragraph 10, it is clear that Hashiguchi has sworn that h e has personal knowledge of all the facts in the affidavit, including paragraph 10 th e r e o f .2 T h e case cited by Joss, Quaranta v. Management Support, 255 F.Supp.2d 1 0 4 0 , 1050 (D. Ariz. 2003) dealt with testimony admittedly not based on personal k n o w led g e and does not provide support for striking a paragraph with a separate " b es t knowledge" statement within an affidavit sworn in its entirety on personal k n o w led g e . In any event, where assertions in the affidavit are controverted by P la in tiffs ' factual showing, the Court is required to resolve factual disputes in It this was not Hachiguchi's intent, Bridgestone must immediately file a c o rrec te d affidavit. -12- 2 Plaintiffs' favor. See Menken v. Emm, 503 F.3d 1050, 1056 (9 th Cir. 2007). B. M o tio n to Dismiss P e rs o n a l jurisdiction analysis involves two parts. First, the exercise of p e rs o n a l jurisdiction over a non-resident defendant must comport with the forum s ta te 's long-arm statute. See Omeluk v. Langsten Slip and Batbyggeri A/S, 52 F .3 d 267, 269 (9th Cir. 1995) (citing Chan v. Society Expeditions, Inc., 39 F.3d 1 3 9 8 , 1404 (9th Cir. 1994)). Second, the exercise of personal jurisdiction must c o m p o rt with traditional notions of fair play and substantial justice embodied in th e due process clause. Schwarzenegger v. Fred Martin Motor Company, 374 F .3 d 797, 800-01 (9 th Cir. 2004). T h e plaintiffs bear the burden of demonstrating that the Court's exercise of p e rs o n a l jurisdiction over Bridgestone is appropriate. Schwarzenegger, 374 F.2d a t 800-801; Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d 9 1 1 , 912 (9th Cir. 1990) ("Portage"). Where, as here, the motion is based on w ritte n materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts. Schwarzenegger, 374 F.3d at 800 (q u o tin g Sher v. Johnson, 911 F.2d 1357, 1361 (9 th Cir. 1990)). W h e re no applicable federal statute governs personal jurisdiction, the d is tric t court applies the law of the state in which the district court sits. -13- Schwarzenegger, 374 F.3d at 800. Here, no federal statute or rule establishes a b a s is for the exercise of personal jurisdiction. Thus, personal jurisdiction in this c a s e is governed, initially, by Montana's long-arm statute. 1. P er s o n a l Jurisdiction Under Montana's Long Arm Statute M o n ta n a 's long-arm statute is found in Rule 4(B)(1) of the Montana Rules o f Civil Procedure, which provides: B . Jurisdiction of Persons. (1 ) Subject to Jurisdiction. All persons found within the s tate of Montana are subject to the jurisdiction of the c o u rts of this state. In addition, any person is subject to th e jurisdiction of the courts of this state as to any claim fo r relief arising from the doing personally, through an e m p lo y e e , or through an agent, of any of the following a c ts : (a) the transaction of any business within this state; (b) the commission of any act which results in a c c ru a l within this state of a tort action; (c ) the ownership, use or possession of any p ro p e rty , or of any interest therein, situated within th is state; (d ) contracting to insure any person, property or ris k located within this state at the time of c o n trac tin g ; (e ) entering into a contract for services to be re n d e re d or for materials to be furnished in this s tate by such person; or (f) acting as director, manager, trustee, or other o ffic e r of any corporation organized under the la w s of, or having its principal place of business w ith in this state, or as personal representative of a n y estate within this state. -14- This rule governs principles of both general and specific jurisdiction. T h e first inquiry under this rule is whether a defendant is "found within M o n ta n a " as provided in Rule 4(B)(1)'s first sentence. Cimmaron Corporation v. S m ith , 2003 MT 73, 12, 315 Mont. 1, 12, 67 P.3d 258, 12. The Montana S u p re m e Court has stated: A party is "found within" the state if he or she is p h y s ic a lly present in the state or if his or her contacts w ith the state are so pervasive that he or she may be d e e m ed to be physically present there. A nonresident d e fe n d a n t that maintains "substantial" or "continuous and s y s te m a tic " contacts with the forum state is found within th e state and may be subject to that state's jurisdiction e v e n if the cause of action is unrelated to the defendant's a c tiv itie s within the forum. B i-L o Foods, Inc. v. Alpine Bank, 955 P.2d 154, 157 (Mont. 1998) (citing Lurie v . 8182 Maryland Associates, 938 P.2d 676, 678 (Mont. 1997)(quoting Simmons O il Corp. v. Holly Corp., 796 P.2d 189, 194 (Mont. 1990)); see also Threlkeld v. C o lo ra d o , 16 P.3d 359, 361 (Mont. 2000). The Court will assume, for purposes of the discussion below, that B rid g e s to n e is not subject to general personal jurisdiction under Montana's longa rm statute. Thus the Court proceeds to the question of whether there is specific -15- jurisdiction over Bridgestone.3 S p e c ific jurisdiction may lie, even if the nonresident defendant maintains m in im a l contacts with the forum, provided that the plaintiff's cause of action a ris e s from any of the six enumerated activities of Rule 4(B)(1)(a) through (f), a n d the exercise of jurisdiction does not offend due process. Bi-Lo Foods, 955 P .2 d at 157. H e re , the Court concludes that Bridgestone allegedly commissioned an act w h ic h caused a tort to accrue in Montana, thus satisfying Rule 4(B)(1)(b). This C o u rt has recognized that when a manufacturing or design defect occurring o u ts id e Montana causes an accident in Montana, with resulting injuries, the tort a c c ru e d in Montana. Scanlan v. Norma Projektil Fabrik, 345 F.Supp. 292, 293 (D .M o n t. 1972) ("It is now settled that a tort action may accrue in a state wherein th e injury occurs and consequently there is jurisdiction here if defendant's acts s a tis fy the minimum contacts requirement."); see also Jackson v. Kroll, T h e Court need not reach Joss and Barber's arguments supporting general p e rs o n a l jurisdiction over Bridgestone, which primarily rely upon imputing to B rid g e s to n e Firestone's contacts with Montana under the "single business e n te rp ris e " analysis. The Court notes, however, that the decision in Bridgestone C o rp . v. Lopez, 131 S.W.3d 670 (2004), was vacated not on its merits but because th e parties had reached a settlement. Bridgestone Corp. v. Lopez, 2005 WL 9 7 7 5 6 2 . The Court of Appeals of Texas denied the parties' joint motion to w ith d ra w the April 1, 2004, opinion. Id. -16- 3 Pomerantz and Cameron, 223 Mont. 161, 166, 724 P.2d 717, 721 (1986)("Under M o n ta n a law, the act causing the injury ... need not occur in Montana as long as th e tort accrues here.").4 In the context of venue, the Montana Supreme Court has s ta te d : [T ]h e tort of wrongful death cannot "arise," "accrue" or b e "committed" until the critical and defining element of th is claim death occurs. The location where death o c c u rs is determinative for venue purposes of where the to rt of wrongful death ... "accrues"[.] In this case, it is u n d is p u te d that Gerald died in Yellowstone County. Accordingly, it is equally clear that the tort of wrongful d e a th for which Jean has filed suit ... accrued and was c o m m itte d in that County. Wentz v. Montana Power Co., 280 Mont. 14, 19, 928 P.2d 237, 240 (1996). Bridgestone's reliance on Cimmaron Corp. is misplaced. In that case, the M o n ta n a Supreme Court held that the tort of conversion did not accrue in M o n ta n a when the actions of the defendants giving rise to the claim, alleged m is a p p ro p ria tio n of accounts receivable, occurred in Pennsylvania. Cimmaron B rid g e s to n e correctly points out that a recent Montana state district court d e c is io n has opined that the due process analysis in Scanlan is dated. See Bunch v. L a n c air Int'l, Inc., 2006 WL 242367, *13-14 (Mont. Dist). But the Bunch opinion d id not question the tort accrual holding in Scanlan, and in fact held that, in a p ro d u c ts liability case against a foreign defendant aircraft engine manufacturer w h e re an airplane crashed in Montana, the tort accrued in Montana and that Rule 4 (B )(1 )(b ) was thus satisfied. Id. *8. -17- 4 Corp., 20. The plaintiff's argument, rejected by the Supreme Court, was that th e tort accrued in Montana because plaintiff felt its effects in Montana. Id. 17. The situation in Cimmaron Corp. is plainly not analogous to a products lia b ility action where the allegedly defective product fails in Montana, causing b o d ily injury in Montana. If Bridgestone is correct, and this tort did not accrue in Montana when its tire allegedly failed here, the only remaining possibilities are th a t the tort accrued in Japan when Bridgestone manufactured the tire in question, y e a rs before the injury, or that the tort accrued in Japan at the time the tire was s o ld . Neither result is legally supportable. Like Cimmaron Corp., the Montana state district court cases cited by B rid g e s to n e did not involve physical injuries occurring in Montana. See T h re lk e ld v. Thompson, 2004 Mont. Dist. LEXIS 3247, *23-24 (plaintiffs sued o v e r alleged misrepresentations made in out-of-state horse purchase); Daly v. D e lta Air Lines, Inc., 2004 Mont. Dist. LEXIS 2252, *27-30 (holding that the tort a c c ru e d in Utah where plaintiff sued over physical injuries sustained in incident at S a lt Lake City International Airport); Mountain West Bank, N.A. v. Oden, 2003 M o n t. Dist. LEXIS 3367 ( plaintiff sued over allegedly negligent out-of-state p a y m e n t on check by defendant without plaintiff's endorsement). Bridgestone h a s not cited a single factually analogous case reaching the accrual conclusion it -18- urges. The only physical injury case, Daly, supports this Court's conclusion. In contrast, a more recent district court opinion by Judge Salvagni, who a u th o re d the Threlkeld district court opinion above, found that Rule 4(B)(1)(b) w a s satisfied in the context of a product liability action where the allegedly d e fe c tiv e product caused an accident and resulting injuries in Montana. See n. 4, su p ra. Finally, Cimarron Corp. is not inconsistent with Scanlan, Jackson, or this C o u rt's conclusion here. All cases found that the tort accrued where the injury occurred. In Cimmaron Corp., the injury occurred in Pennsylvania where the to rtio u s act occurred and the accounts receivable were located. In Scanlan, J a c k s o n , and here, the injury occurred in Montana. Bridgestone's claim that any to rtio u s act by it must also have been committed in Montana is, in this context, an a ttem p t to add a requirement simply not present in Rule 4(B)(1)(b). Specific p e rs o n a l jurisdiction over Bridgestone exists pursuant to Montana's long-arm s ta tu te . 2. D u e Process T h e Court next must determine whether personal jurisdiction over B rid g e s to n e is consistent with due process. Due process requires that the n o n re s id e n t defendant have certain minimum contacts with the forum state such -19- that the exercise of personal jurisdiction does not offend traditional notions of fair p la y and substantial justice. International Shoe v. Washington, 326 U.S. 310, 316 (1 9 4 5 ). T o exercise specific jurisdiction, which subjects a defendant to claims that a ris e out of or are related to the defendant's contacts with the forum, Helicopteros N a tio n a le s de Columbia v. Hall, 466 U.S. 408, 414 n.8 (1984), the court must find th a t the defendant had "fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign." Burger King Corp. v. Rudzewicz, 471 U .S . 462, 472 (quoting Shaffer v. Heitner, 433 U.S. 186, 218 (1977)(Stevens, J., c o n c u rrin g in judgment)). Such "`fair warning' is satisfied if the defendant has `p u rp o s efu lly directed' his activities at residents of the forum, and the litigation res u lts from alleged injuries that `arise out of or relate to' those activities." Id. (cita tio n s omitted). T h e Ninth Circuit employs a three-part test to determine whether Burger K in g 's requirements are satisfied with respect to a particular defendant: (1 ) The nonresident defendant must do some act or c o n s u m m ate some transaction with the forum or perform s o m e act by which he purposefully avails himself of the p riv ile g e of conducting activities in the forum, thereby in v o k in g the benefits and protections of its laws[;] (2) [t]h e claim must be one which arises out of or results fro m the defendant's forum-related activities[; and] (3) [e]x e rcis e of jurisdiction must be reasonable. -20- Omeluk, 52 F.3d at 270 (citing Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F .2 d 1280, 1287 (9th Cir. 1977) and Roth v. Garcia Marquez, 942 F.2d 617, 6 2 0 -2 1 (9 th Cir. 1991)). T h e "purposeful availment," "arising out of forum-related activities" a n d "reasonableness" criteria provide the analytical framework that courts in the N in th Circuit employ when considering whether the "constitutional touchstone" o f "minimum contacts" necessary for due process is satisfied. Omeluk, 52 F.3d at 2 7 0 (citing Burger King, 471 U.S. at 474). "If any of the three requirements is n o t satisfied, jurisdiction in the forum would deprive the defendant of due process o f law." Id. 1. P u r p o s e fu l Direction J o s s and Barber must show that Bridgestone purposely availed itself of the p riv ileg e of conducting activities in Montana, or that it purposefully directed its a c tiv itie s at Montana. Schwarzenegger, 374 F.3d at 802. Purposeful availment a n d purposeful direction are actually distinct concepts; purposeful availment is m o s t often analyzed in cases sounding in contract, purposeful direction in cases s o u n d in g in tort. Id.; see also Goldberg v. Cameron, 482 F.Supp.2d 1136, 1144 (N .D .C a l. 2007); Brayton Purcell LLP v. Recordon & Recordon, 361 F.Supp.2d -21- 1135, 1140 (N.D.Cal. 2005). "A showing that a defendant purposefully directed h is conduct toward a forum state ... usually consists of evidence of the d e fe n d a n t's actions outside the forum state that are directed at the forum, such as th e distribution in the forum state of goods originating elsewhere." Schwarzenegger, 374 F.3d at 803; see also World-Wide Volkwagen, 444 U.S. at 2 9 7 -9 8 ("forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the s tre a m of commerce with the expectation that they will be purchased by c o n s u m e rs in the forum State."). The Court will employ a purposeful direction analysis here because the c a s e sounds in tort and because Plaintiffs' evidence suggests that this is a "stream o f commerce" case.5 "The placement of a product into the stream of commerce, w ith o u t more, is not an act purposefully directed toward a forum state." Holland A m e rica v. Wartsila North America, Inc., 485 F.3d 450, 459 (9 th Cir. 2007) (citin g Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112 (1987). Likewise, a defendant's awareness that a product may be swept into a forum state T h u s , the Court does not analyze purposeful direction under the three part " e ffe c ts test" based on Calder v. Jones, 465 U.S. 783 (1984) and utilized in S c h w a rz en e g g e r. It is "well established" that the effects test applies only to in te n tio n a l torts. Holland America v. Wartsila North America, Inc., 485 F.3d 450, 4 6 0 (9 th Cir. 2007). -22- 5 in the stream of commerce is not "an act purposefully directed toward the forum s ta te ." Id. In Holland America, the Ninth Circuit found that the defendant had not c o m m itte d an act purposefully directed at Washington state where the defendant's c o n ta c ts were limited to a passive website, occasional visits to the United States b y a marketing representative, and a single advertisement not directed at W a s h in g to n . Id. at 460. T h e critical question is whether Bridgestone did something more than m e re ly place its tires in the stream of commerce. The Court concludes that it did. Bridgestone is not merely aware that its tires may be swept into Montana. Bridgestone has stated that its intent is "to become a truly global enterprise and to e s ta b lis h the Bridgestone brand as the undisputed world No. 1 brand in both name a n d substance." Court's Doc. 31, Plaintiff's Exhibit 11 at 2. Bridgestone p ro c la im s that is "the true industry leader in the Americas" with a 20 percent m a rk e t share in North America. It has a goal of being number 1, or at least n u m b e r 2, in every major tire market. It notes that its multibrand strategy has p ro d u c e d strong sales growth in North America. In 1998, the Americas a c c o u n te d for 31.1 percent of Bridgestone's operating profit. See infra pp. 5-7. In 2008, it issued a media release touting its management goal of establishing its -23- status "of being the undisputed world No. 1 tire and rubber company in both n a m e and reality." Consistent with Bridgestone's intent and design, its tires are widely sold and a d v e rtiz ed in Montana. See Court's Doc. No. 31, Exhs. 1-6 (yellow pages ads), v e r ifie d by Baker Aff., Court's Doc. No. 32, 2-8. It is clear that Bridgestone is n o t a passive bystander merely aware that its tires may be used in Montana. Bridgestone cannot reap the rewards of its "strategy" "produc[ing] strong sales g ro w th in North America," including Montana, without being subjected to the res p o n s ib ilitie s accompanying such success. See Nat. Union Fire Ins. Co.of P itts b u rg h , PA v. Aerohawk Aviation, Inc., 2005 WL 1505787 (motion to dismiss d e n ie d where defendant "reaps the financial benefits from [co-defendant's] n a tio n al presence, but seeks to evade the responsibilities that accompany that n a tio n al presence"). The Supreme Court's analysis in World-Wide Volkwagen is instructive h e re . World-Wide Volkwagen presented a case with facts similar to those under rev ie w here a products liability suit in which the automobile accident occurred in Oklahoma but the automobile was not sold in Oklahoma and the plaintiffs did n o t reside there. 444 U.S. at 288-89. The named defendants were the foreign a u to m o b ile manufacturer (Audi), the importer (Volkswagen of America, Inc.), the -24- regional distributor and the retail dealer. Interestingly, the foreign manufacturer d id not challenge the jurisdiction of the Oklahoma court.6 It was the distributor (w h o operated in New York, New Jersey and Connecticut) and the New York d e a le r which challenged the jurisdiction of the Oklahoma court. In ruling that the O k la h o m a court did not have jurisdiction over the distributor and dealer, the C o u rt implicitly distinguished them from the situation of a manufacturer whose p ro d u c ts are sold nationwide: T h e y close no sales and perform no services there. They avail themselves o f none of the privileges and benefits of Oklahoma law. They solicit no b u s in e s s there either through salespersons or through advertising rea s o n a b ly calculated to reach the State. Nor does the record show that th e y regularly sell cars at wholesale or retail to Oklahoma customers or res id e n ts or that they indirectly, through others, serve or seek to serve the O k la h o m a market. **** Hence, if the sale of a product of a manufacturer or distributor such as Audi o r Volkswagen is not simply an isolated occurrence, but arises from the e ffo rts of the manufacturer or distributor to serve directly or indirectly, the m a rk e t for its product in other States, it is not unreasonable to subject it to s u it in one of those States if its allegedly defective merchandise has there b e e n the source of injury to its owner or to others. The forum State does n o t exceed its powers under the Due Process Clause if it asserts personal ju ris d ic tio n over a corporation that delivers its products into the stream of c o m m e rc e with the expectation that they will be purchased by consumers in th e forum State. Volkswagen did enter a special appearance in the District Court but did not s e e k review in the Supreme Court of Oklahoma and was not a petitioner in the U n ited States Supreme Court. 444 U.S. at 288 n. 3. -25- 6 444 U.S. at 295, 297-98. This language was quoted with approval by the Court in A s a h i, 480 U.S. at 110. In Asahi, the Court noted that the required "something m o re " than merely placing a product into the stream of commerce could be s a tis fie d by a showing that the defendant "market[ed] the product through a d is trib u to r who has agreed to serve as the sales agent in the forum State." Id. at 112. T h e Court finds that Bridgestone has delivered its products into the stream o f commerce with the expectation that they will be purchased by consumers in M o n ta n a , and that it has purposely directed its activities at this forum. It has m a d e efforts to serve, directly or indirectly, the Montana market for tires. Accordingly, plaintiffs have carried their burden of producing evidence to support a prima facie case for personal jurisdiction as to this prong of the test. To the e x te n t the facts noted above are in dispute with the Hashiguchi affidavit, those d is p u te s are resolved in plaintiffs' favor. Menken, 503 F.3d at 1056. The Court recognizes that many lower courts have considered whether B rid g e s to n e is subject to personal jurisdiction, reaching various conclusions as th e facts of those cases dictated. Under the facts of this case, the Court concludes th a t those decisions finding jurisdiction over Bridgestone are the more persuasive. 2. A r is in g Out Of -26- The second prong of the due process test is satisfied if "the litigation results fro m alleged injuries that `arise out of or relate to' the defendant's activities d ire c te d at the forum. Here, Bridgestone's delivery of tires, directly or indirectly, in to the stream of commerce with the intent and expectation that they would be p u rc h a s e d and used in Montana clearly "relates to" an accident involving one of its tires manufactured in Japan. Thus, the second prong is satisfied. see also H a w aii Forest & Trail, Ltd v. Davey, 556 F.Supp.2d 1162, 1170-71 (D.Ha. 2 0 0 8 )(fin d in g jurisdiction where the defendant "not only expected, but knew that its product would end up in Hawaii"). 3. R e a s o n a b le n e s s B e c a u s e plaintiffs have satisfied the first two prongs of the test , personal ju ris d ic tio n is presumed reasonable unless Bridgestone can present a compelling c a s e to the contrary. Ochoa v. J.B. Martin &Sons Farms., Inc., 287 F.3d 1182, 1 1 9 2 (9th Cir. 2002). In considering the third prong of this test, i.e., rea so n a b le n e s s of the exercise of jurisdiction, courts in the Ninth Circuit are to a p p ly the following seven factors: (1) the extent of the defendant's purposeful in te rje ctio n into the forum state's affairs; (2) the burden on the defendant; (3) c o n flic ts of law between the forum and defendant's home jurisdiction; (4) the fo ru m 's interest in adjudicating the dispute; (5) the most efficient judicial -27- resolution of the dispute; (6) the plaintiff's interest in convenient and effective relie f; and (7) the existence of an alternative forum. Roth v. Garcia Marquez, 942 F .2 d 617, 623 (9th Cir. 1991). The Court considers the seven factors in turn. F irs t, the extent of purposeful interjection into Montana narrowly favors p la in tiffs. Though the Court has found sufficient interjection into Montana to c o n s titu te purposeful direction or availment, "the degree of interjection is a factor to be weighed in assessing the overall reasonableness of jurisdiction[.]" CoreV e n t Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1488 (9 th Cir. 1993). Bridgestone h a s no employees, facilities, or agents for service of process in Montana. Bridgestone tires are, however, widely available in Montana and the evidence in d ica te s Bridgestone intends for this to be the case and knows it to be so. Bridgestone's indirect purposeful interjection marginally weighs in favor of ju r is d ic tio n . S e co n d , the burden on Bridgestone of defending in Montana is not great. The materials submitted by the parties indicate that Bridgestone has defended m a n y cases throughout the United States. Bridgestone has the resources, counsel, e x p e rtis e and experience with the American justice system, to defend this case w ith o u t undue burden. Third, although that court is mindful of the "unique burdens placed upon -28- one who must defend oneself in a foreign legal system" (Asahi, 480 U.S. at 114), th e extent of conflict with Japan's sovereignty is minimal because the events g iv in g rise to this litigation occurred in Montana and thus Montana law properly a p p lie s . See Robinson Corp. v. Auto-Owners Ins. Co., 304 F.Supp.2d 1232, 1241 (D .H a w . 2003)(finding burden on insurer was minimal where insurer "promised to defend its policyholders ... within its policy territory, which included the entire U n ited States"). Fourth, Montana's interest in the dispute favors personal jurisdiction, a lth o u g h not as strongly as if the plaintiffs were Montana residents. Montana has a n interest in this matter, however, because the accident occurred in Montana. And, although no Montana residents were injured in this accident, Montana has a n interest in the safety of automobiles using Montana roadways. See Phillips v. G e n e ra l Motors Corp., 2000 MT 55, 52, 298 Mont. 438, 52, 995 P.2d 1002, 52. T h e fifth factor, efficient judicial resolution, favors personal jurisdiction. Here, the focus is on the location of witnesses and evidence. See Robinson Corp., 3 0 4 F.Supp.2d at 1241. The accident occurred in Montana and Montana is the m o s t likely location for non-party witnesses. Although the Plaintiffs are not M o n ta n a residents, Montana is a nearer location for these parties, and presumably -29- more convenient, than Japan. Accordingly, Montana is likely the most efficient fo ru m in which to resolve this dispute. T h e sixth factor does not weigh in favor of personal jurisdiction, as the p la in tiffs and intervening plaintiffs are not Montana residents,. As to the seventh factor, the plaintiffs and intervening plaintiffs bear the b u rd e n of alleging the unavailability of an alternative forum and have not done s o . See Core-Vent Corp., 11 F.3d at 1490. Thus, this factor weighs against p e rs o n a l jurisdiction. B a la n c in g the above factors, the Court concludes that Bridgestone does not p re s e n t a compelling case that the exercise of personal jurisdiction over it in M o n ta n a is unreasonable. IV . C O N C L U S IO N B a s e d on the foregoing, IT IS ORDERED that Joss's motion to strike (Court's Doc. No. 33) is D E N IE D . IT IS RECOMMENDED that Bridgestone's motion to dismiss (Court's D o c . No. 27) be DENIED. The Clerk of Court shall serve a copy of this Findings a n d Recommendation upon the parties. All parties are advised that, pursuant to 2 8 U.S.C. 636(b)(1), any objections to the Findings and Recommendation must -30- be filed with the Clerk of Court within ten (10) days after receipt hereof, or o b je c tio n is waived. DATED this 14th day of January, 2009. /s/ Carolyn S. Ostby C a ro ly n S. Ostby U .S . Magistrate Judge -31-