West Wind Air LLC v. Thrush Aircraft Inc

Filing 36

ORDER denying #24 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge D. P. Marshall Jr. on 6/14/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

WEST WIND AIR LLC, dfb/a ChrisAir

v.

PLAINTIFF

No. 5:16-cv-274-DPM

THRUSH AIRCRAFT INC.

DEFENDANT

ORDER
1. Chris Air is a crop dusting company based in south Arkansas. In

September 2013, one of its airplanes had to make a crash landing in a cotton
field because of throttle problems. The pilot was uninjured, but the crop
duster was damaged. Chris Air has sued the airplane's manufacturer,
Thrush, making various product liability claims.

Thrush is a Georgia

company. The Court denied without prejudice Thrush's early Rule 12(b)(2)
motion to dismiss for lack of personal jurisdiction: The somewhat murky
record, the Court concluded, made a prima facie case for holding Thrush in
court here; but the Court invited another motion after jurisdictional discovery
if Thrush maintained its opposition. Ng 18. Thrush has renewed its motion,

with vigor.

Though the Court has held no evidentiary hearing, it nonetheless has
a full record of affidavits and documents. Taking that record in the light most
favorable to Thrush, and resolving disputed facts in its favor, the question is
whether Chris Air has indeed made a prima facie case that this Court has
personal jurisdiction over Thrush in the parties' dispute about this airplane.

Dakota Industries, Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir.
1991). Arkansas law extends personal jurisdiction as far as the Due Process
Clause allows. ARK. CODE ANN.§ 16-4-lOl(B). So the state law question and
federal law question become one-the familiar due process stew of whether
it's fair and reasonable, considering all the facts with jurisdictional weight, to
require this Georgia-based manufacturer to defend this crop duster in a court
sitting in Arkansas. f. Mcintyre Machinery, Ltd. v. Nicastro, 564 U.S. 873,
879-882 (2011); Viasystems, Inc. v. EBM-Papst St. Georgen GMBH & Co., KG,
646 F.3d 589, 594 (8th Cir. 2011). The Court held at the start of the case, and
Chris Air has now conceded by silence, that no general jurisdiction exists.
NQ 18 & 31. Thrush's affiliations with Arkansas are not so continuous and

systematic that the manufacturer is essentially at home here. Goodyear Dunlop

Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). The fighting issue is

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whether specific personal jurisdiction over Thrush comports with due
process.
The standard is whether, first, Thrush has minimum contacts with
Arkansas, and if so, second, whether exercising jurisdiction over Thrush in
this state is reasonable. Burger King Corporation v. Rudzewicz, 471 U.S. 462,
476-78 (1985). Random or attenuated contacts with Arkansas aren't enough,

and neither is the unilateral activity of a third person. Burger King, 471 U.S.
at 475. The key inquiry is whether Thrush purposefully availed itself of the
privilege of conducting activities in Arkansas. Ibid.
2. Here are the material facts. Thrush manufactures and sells airplanes
to dealers, who then sell them to operators.

Though it considered

implementing a factory direct sales program about ten years ago, Thrush has
never sold a plane directly to an Arkansawyer. (At one point Thrush had a
dealer in Arkansas. That dealer has sold a few Thrush planes to Chris Air
over the years - though not the plane that crashed- and it hasn't sold Thrush
planes in almost a decade.) Thrush says it doesn't always know where its
planes are sold, or to whom, after they've been delivered to dealers. One of
Thrush's dealers is Mid-Continent Aircraft Corporation in Missouri, a few

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dozen miles from Arkansas's northern border. This dealer sells planes and
parts to its agricultural aviation customers in the region, like Chris Air.
Mid-Continent sold the Thrush plane that crash landed in the cotton field to
Chris Air.
Thrush is a member of the Arkansas Agricultural Aviation Association.
The Georgia manufacturer says it joins state aviation associations to maintain
public relations, provide brand recognition, and become educated on the
state's agricultural laws, regulations, and trends. Ng 17-3 at if 9. Thrush goes
to the Arkansas association's annual trade convention in this state to, in
Thrush's words, "promote[] its brand and support[] the independent dealer
network."

Ng 17-3 at

if

12.

And on at least one occasion Thrush has

advertised in the Arkansas association's membership directory. Ng 31-1at20.
Thrush and Chris Air had some direct dealings before the crash. Chris
Air representatives spoke with Thrush representatives at the annual
convention in Arkansas over the years. Early on, Thrush invited Chris Air
employees to tour its factory and watch the manufacturing process, and to
thank them for their business. Chris Air corresponded directly with Thrush's
maintenance department when it had issues with Thrush planes, and bought

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parts directly from Thrush as recently as 2013. Chris Air once picked up a
Thrush engine installer to work on a Thrush plane in Arkansas. Thrush
admits it sends mechanics to the location of Thrush aircraft, at its own
expense, if operators request assistance.
3. Chris Air didn't say the words" stream of commerce," but in essence
that phrase aptly describes how the plane progressed from Thrush to
Mid-Continent then to Chris Air.

Vandelune v. 4B Elevator Components

Unlimited, 148 F.3d 943, 947-48 (8th Cir. 1998). The Supreme Court has firmly
rejected the stream of commerce theory as a basis for general jurisdiction, and
this Court does not have general jurisdiction over Thrush. Goodyear, 564 U.S.
at 927. But a state can have specific personal jurisdiction over a defendant by
way of indirect sales through others. "Flow of a manufacturer's products into
the forum ... may bolster an affiliation germane to specific jurisdiction." Ibid.
(emphasis original). The Court divided in J. Mcintyre over establishing any
clear lines in stream of commerce cases. All members of the Court agreed,
though, that in an appropriate case, an out-of-state manufacturer can be
subject to suit without entering a forum state if it seeks to serve the state's
market. ]. Mcintyre, 564 U.S. at 882, 889, & 898. And the Eighth Circuit has

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repeatedly affirmed that a state can have specific personal jurisdiction over
an out-of-state manufacturer whose products penetrate the state through a
regional distributor. Viasystems, 646 F.3d at 597; Vandelune, 148 F.3d at
947-48; Barone v. Rich Brothers Interstate Display Fireworks Company, 25 F.3d
610, 615 (8th Cir. 1994).
4. The indirect sale of the plane to Chris Air through a nearby regional
dealer-distributor, along with all the facts establishing an intent to serve
Arkansas customers, show that Thrush has minimum contacts with Arkansas.
Thrush argues hard that Chris Air's lawsuit doesn't arise from its various
direct contacts with Arkansas. True. But the sale through Mid-Continent is
the starting point of analysis in this stream of commerce case. The cause of
action arises from that indirect contact with Arkansas. All Thrush's other
contacts with this state-such as marketing to, communicating with, and
assisting Arkansas customers - go to Thrush's intent to target Arkansas
specifically, albeit indirectly, through its dealer network, the only way any
Thrush plane reaches any operator. Considering Arkansas's interest in the
case and the relatively modest inconvenience on all the parties of litigating
here, the Court concludes that it's fair and reasonable for Thrush to defend

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this suit in this state. Aly v. Hanzada for Import & Export Company, Ltd., 2017
WL 1089542, at *3 (8th Cir. 23 March 2017). This Court's exercise of personal
jurisdiction over Thrush comports with due process. Motion, NQ 24, denied.*
So Ordered.
f

D.P. Marshall Jr.
United States District Judge

*Although the Court disagrees with Thrush on the jurisdiction issue,
it commends and appreciates the excellent briefing by Thrush's lawyers.
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