Tomas v. Bayerische Motoren Werke AG et al

Filing 29

MEMORANDUM OPINION AND ORDER: Consistent with this opinion, 16 MOTION to Dismiss for Lack of Jurisdiction is DENIED. Signed by Judge Abdul K Kallon on 8/24/2018. (AFS)

FILED
2018 Aug-24 AM 10:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ALEJANDRO TOMAS,
Plaintiff,

v.
BAYERISCHE MOTOREN
WERKE AG, ET AL
Respondent.

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Civil Action Number
5:17-cv-01664-UJH-AKK

MEMORANDUM OPINION AND ORDER
Before the court is Bayerische Motoren Werke AG’s (“BMW AG”) motion
to dismiss Alejandro Tomas’s complaint for lack of personal jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(2). Doc. 16. Tomas filed suit against
BMW AG and BMW of North America (“BMW NA”), alleging that he sustained
complete blindness in his right eye when the airbag in his 2003 BMW 330i
unexpectedly deployed. Doc. 1. The motion fails.
I.

FACTUAL AND PROCEDURAL BACKGROUND

This litigation arises from an incident involving the personal injury of Tomas
when he was riding as a front seat passenger in his 2003 BMW 300i. Tomas
alleges that he sustained complete blindness in his right eye when the airbags
unexpectedly deployed even though his vehicle made no “contact with any other

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vehicle or property.” Doc. 1 at 1,5. Tomas filed this suit against BMW NA and its
indirect parent company BMW AG seeking actual and punitive damages for relief.
Doc 1. at 2, 7-18.
BMW AG maintains that it is a holding company with its principal place of
business in Munich, Germany and, as Tomas conceded, that it has no direct
contacts with Alabama. Docs. 1 at 2; 27 at 8. Accordingly, BMW AG has moved
to dismiss for lack of personal jurisdiction. Doc. 16. Tomas sought jurisdictional
discovery to respond to the motion, doc. 18, which the court denied. Doc. 24.
Thereafter, Tomas responded to the motion conceding general personal jurisdiction
and maintaining that specific personal jurisdiction exists. Doc. 27 at 8. BMW AG
has filed its reply, doc. 28, and as a result, the motion is ripe for review.
II.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(2), “[a] plaintiff seeking the
exercise of personal jurisdiction over a nonresident defendant bears the initial
burden of alleging in the complaint sufficient facts to make out a prima facie case
of jurisdiction.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.
2009).

After the defendant challenges jurisdiction with affidavit evidence in

support of its position, “the burden traditionally shifts back to the plaintiff to
produce evidence supporting jurisdiction unless [the defendant’s] affidavits contain
only conclusory assertions that the defendant is not subject to jurisdiction.” Meier
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ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002). If,
however, “the plaintiff’s complaint and supporting evidence conflict with the
defendant’s affidavits, the court must construe all reasonable inferences in favor of
the plaintiff.” Wolf v. Celebrity Cruises, Inc., 683 F. App'x 786, 790 (11th Cir.
2017) (quoting Meier, 288 F.3d at 1269).
III.

ANALYSIS

“A federal court sitting in diversity may exercise jurisdiction over a nonresident
defendant to the same extent as a court of that state.” Ruiz de Molina v. Merritt &
Furman Ins. Agency, Inc., 207 F.3d 1351, 1355 (11th Cir. 2000). Under its longarm statute, “Alabama permits its courts to exercise jurisdiction over nonresidents
to the fullest extent allowed under the Due Process Clause of the Fourteenth
Amendment to the Constitution.” Id. at 1355–56 (citing Martin v. Robbins, 628
So.2d 614, 617 (Ala. 1993)); see also Ala. R. Civ. P. 4.2(b). The Due Process
Clause accepts two types of personal jurisdiction—“general” and “specific”
personal jurisdiction. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 131
S.Ct. 2846, 2853 (2011). For personal jurisdiction over a non-resident defendant,
the Due Process Clause “only requires” that the person or entity has sufficient
“minimum contacts” with that state and the suit does not offend “traditional
notions of fair play and substantial justice.” World-Wide Volkswagen Corp. v.

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Woodson, 444 U.S. 286, 291 (1980) (citing Int'l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)).
Relevant here, “[t]he 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 stream of commerce with the expectation that they will be
purchased by consumers in the forum State.” World-Wide Volkswagen Corp., 444
U.S. at 297–98. However, mere knowledge or expectations that a product will
wind up in the forum state is insufficient to create personal jurisdiction. J.
McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 881 (2011). Rather, purposeful
availment generally requires showing that the defendant “targeted the forum” state.
Id. at 882 (finding no personal jurisdiction over an English manufacturer who
utilized an independent U.S. distributor that distributed only four machines to the
state of New Jersey). In the Eleventh Circuit, the “stream of commerce test
remains good law” and minimum contacts are likely to exist where “a high-volume
seller puts its products into the stream of commerce knowing those products would
end up in the forum state, even if that seller had no other contacts with the forum
state.” Smith v. Poly Expert, Inc., 186 F. Supp. 3d 1297, 1303 (N.D. Fla. 2016).
The jurisdictional facts here are fairly straightforward and undisputed.
Unlike its American subsidiary company, BMW AG has no direct dealings with
the state of Alabama. Doc. 16-4 at 3-5. It does not own any property, maintain a
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sales force, or advertise in the state. Id. Tomas asserts that BMW AG is
nonetheless subject to specific jurisdiction because it “put[s] its vehicles that it
designs, tests, and manufactures into the ‘stream of commerce’ by selling the
vehicles to its wholly owned subsidiary and exclusive distributor, BMW NA, to
distribute to its dealership network throughout the U.S. market, including
Alabama.” Doc. 27 at 8. Taking all reasonable inferences in favor of Tomas, the
“contemporary commercial circumstances” and “economic realities of the market”
that BMG AG “seeks to serve” reveal that this court may exercise jurisdiction.
McIntyre, 564 U.S. at 885, 893.
BMW AG’s argument, that no personal jurisdiction exists because it does
not control the distribution and operations of BMW NA and therefore has no
control over where the vehicles are distributed, see doc. 16 at 3, 6, is unpersuasive
for two reasons.

First, BMW AG “manufacture[s] and design[s] vehicles,”

including the vehicle in this case, and then sells hundreds of thousands of BMW
branded vehicles to BWM NA each year. See doc. 16 at 1, 15; doc. 27-4 at 12.
BMW NA, in turn, “sells those vehicles, at wholesale, to its authorized dealers in
Alabama.” Doc. 16 at 2. Thus, BMW AG obviously contemplates that some of its
vehicles will make their way to Alabama. See King v. Gen. Motors Corp., 2012
WL 1340066, at *7 (N.D. Ala. Apr. 18, 2012) (“GM Canada utilized its parent
corporation to distribute hundreds, if not thousands, of vehicles to the state of
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Alabama, including the vehicle at issue.”). Second, BMW AG appended to
Tomas’s vehicle a sticker with a VIN number and notice that “this vehicle
conforms to all applicable U.S. federal motor vehicle safety, bumper and theft
prevention standards.” Doc. 27-3 at 2. This court has found that compliance with
federal regulations “equates manufacturing a product ‘in anticipation of sales in’
Alabama.” King, 2012 WL 1340066, at *7 (quoting Asahi Metal Industry Co. v.
Superior Court of Cal., Solano Cty., 480 U.S. 102, 113 (1987)). Accordingly,
BMW AG “seeks to serve” in Alabama by specifically manufacturing BMW
vehicles in compliance with federal regulations. Id. (quoting McIntyre, 564 U.S. at
885).
Furthermore, this court recently found that jurisdiction exists where a
foreign auto manufacturer had not:
transacted any business in Alabama; been involved in any business
activities in Alabama; paid any taxes to Alabama, made any contracts
with Alabama; owned, used, or possessed any real estate situated in
Alabama; maintained any offices, manufacturing plants, or equipment
in Alabama; had any directors, officers, employees, or agents based in
Alabama; had a bank account in Alabama; had a telephone number,
mailing address, or Employee Identification Number (“EIN”) based in
Alabama; or directed any advertising or marketing efforts to residents
or business in the United States, including Alabama.
Johnson v. Chrysler Canada Inc., 24 F. Supp. 3d 1118, 1120-21 (N.D. Ala. 2014)
(internal punctuation edited).

The court found it had jurisdiction over the

defendant, in part, because, as is the case here, the foreign manufacturer sold its
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vehicles to a related entity, which it knew to have “a nationwide distribution
channel in the United States.” Id. (“Chrysler Canada knew that Chrysler United
States, through its dealer network, had a nationwide distribution channel in the
United States” and should have “expected that at least some of the vehicles it
assembled would likely be sold in the state of Alabama.”) (internal quotations
omitted); see also Graham v. Hamilton, 2012 WL 893748, at *4 (W.D. La. 2012)
(“GM Canada places over 800,000 vehicles into the U.S. market each year,
indicating that many of GM Canada’s vehicles would likely be sold in
Louisiana.”).1
To close, BMW AG cannot “plead ignorance of the markets it explicitly
targets and serves.” King, 2012 WL 1340066, at *7. Viewing all reasonable
inferences in favor of Tomas, BMW AG “possesses more than some vague
awareness that its products might reach U.S. markets” when it specifically designs
vehicles in compliance with federal regulations and its subsidiary corporation
directly sells the manufactured products to markets including Alabama.

Id.

Therefore, BMW AG’s contacts with Alabama are such that it should “reasonably
anticipate being haled into court [here] for claims arising out of” the vehicles it
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BMW AG’s reliance on Hinrichs v. Gen. Motors of Canada, Ltd., 222 So. 3d 1114
(Ala. 2016), is misplaced. The Alabama Supreme Court held that no jurisdiction existed, in part,
because it could not find “any case in which a trial court has exercised specific jurisdiction over
a foreign manufacturer arising from its sale of an allegedly defective vehicle in a foreign
jurisdiction to a separate entity in the foreign jurisdiction unless the vehicle was ultimately sold
in the forum state.” Id. In contrast, the vehicle in this case—although originally sold in
Connecticut—was sold in Alabama six times. See doc. 16-3.
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manufactures and sells to BMW NA. Ruiz de Molina, 207 F.3d at 1357. Finally,
Tomas and Alabama’s interests are high in this case as the incident occurred in
Alabama to an Alabama resident.

Consequently, exercising jurisdiction over

BMW AG “does not offend traditional notions of fair play and substantial justice.”
World-Wide Volkswagen Corp., 444 U.S. at 291.
CONCLUSION
Consistent with this opinion, BMW AG’s motion to dismiss, doc. 16, is
DENIED.
DONE the 24th day of August, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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