Askue et al v. Aurora Corporation of America et al
Filing
54
ORDER AND OPINION granting Michilin's 44 Motion to Dismiss. The Aurora defendants shall file their response to defendant Michilin's 50 Motion to Dismiss Cross-claims by MARCH 26, 2012 (See 52 Order). Signed by Judge Julie E. Carnes on 3/12/12. (ekb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BRADEN ASKUE and LISA ASKUE,
individually and as parents and
natural guardians of ABIGAIL
ASKUE, a minor,
Plaintiffs,
CIVIL ACTION NO.
v.
1:10-cv-0948-JEC
AURORA CORPORATION OF AMERICA,
AURORA OFFICE EQUIPMENT CO.,
LTD., and MICHILIN PROSPERITY
CO., LTD.,
Defendants.
ORDER AND OPINION
This case is before the Court on defendant Michilin Prosperity
Co., Ltd.’s Motion to Dismiss [44].1
The Court has reviewed the
record and the arguments of the parties and, for the reasons set out
below, concludes that defendant’s Motion to Dismiss [44] should be
GRANTED.
1
Defendant Michilin Prosperity Co., Ltd. has also filed a
Motion to Dismiss Cross-claims [50].
Per this Court’s Order of
August 30, 2011 [52], no response to this motion will be due until 14
days after the Court issues this order.
AO 72A
(Rev.8/82)
BACKGROUND
This is a products liability action involving a paper shredder
manufactured by defendant Michilin Prosperity Co., Ltd. (“Michilin”)
and
sold
to
the
Aurora
defendants
(hereinafter
distributed the shredder under their name.
“Aurora”),
who
Plaintiffs, on behalf of
their minor daughter, allege that this Aurora AS1000X 10CC cross-cut
paper shredder mutilated their daughter’s right hand. (2d Am. Compl.
[17] at ¶¶ 6-11.)
They bring claims, under Georgia law, against
defendant
and
Michilin
Aurora
for
strict
liability,
breach
of
warranty, negligence, loss of consortium, and punitive damages.
Defendant Michilin, a Taiwanese corporation with its principal
place of business in Taiwan, has moved to dismiss for lack of
personal jurisdiction.
Briefing on this motion concluded on August
17, 2011, and the motion is before the Court for resolution.
DISCUSSION
I.
APPLICABLE LAW
On a motion to dismiss for lack of personal jurisdiction under
Federal Rule of Civil Procedure 12(b)(2), the plaintiff has the
burden of establishing a prima facie case of jurisdiction.
See
Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d
1357, 1360 (11th Cir. 2006); Oldfield v. Pueblo de Bahia Lora, S.A.,
558 F.3d 1210 (11th Cir. 2009).
“A prima facie case is established
if the plaintiff presents enough evidence to withstand a motion for
2
AO 72A
(Rev.8/82)
directed verdict.” Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.
1990).
In evaluating plaintiff’s case, the district court must accept
as true the allegations in the complaint.
Stubbs, 447 F.3d at 1360.
Where the defendant contests the allegations of the complaint through
affidavits, “the burden shifts back to the plaintiff to produce
evidence supporting personal jurisdiction, unless the defendant’s
affidavits contain only conclusory assertions that the defendant is
not subject to jurisdiction.”
Id.
Where the plaintiff’s complaint
and supporting affidavits and defendant’s affidavits conflict, the
district court must “construe all reasonable inferences in favor of
the plaintiff.”
Id.
A plaintiff who brings state-law claims and asserts personal
jurisdiction
obstacles.
over
a
nonresident
defendant
must
surmount
two
The exercise of jurisdiction must first, be appropriate
under the particular state’s long-arm statute and second, cannot
violate the Due process Clause of the Fourteenth Amendment.
Diamond
Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249, 1257
(11th Cir. 2010).
II.
THE GEORGIA LONG-ARM STATUTE
Defendant Michilin argues that it is not subject to the Georgia
long-arm statute and that it further lacks “minimum contacts” with
Georgia sufficient to satisfy due process.
3
AO 72A
(Rev.8/82)
The Georgia long-arm
statute
permits
the
exercise
of
personal
jurisdiction
over
a
nonresident who (1) transacts any business within Georgia; (2)
commits a tortious act or omission within Georgia, with an exception
for defamation; or (3) commits a tortious injury in this state caused
by an act or omission outside of Georgia, if the tortfeasor regularly
does or solicits business, or engages in any other persistent course
of conduct, or derives substantial revenue from goods used or
consumed or services rendered in this state.2
A.
O.C.G.A. § 9-10-91.
Sub-Section (1): Transacts Any Business
The first prong of the Georgia long-arm statute confers personal
jurisdiction over a resident who “transacts any business” within
Georgia.
O.C.G.A.
§9-10-91(1).
Although
previous
federal
jurisprudence viewed the Georgia long-arm statute as co-extensive
with the reach of the Due Process Clause, such that federal (and
state) courts had frequently ignored the Georgia statute and launched
immediately into a due process analysis, the Georgia Supreme Court
2
Sub-section (4) of the statute provides jurisdiction where a
defendant owns, uses, or possesses any real property situated within
Georgia. Plaintiffs admit that defendant Michilin “probably” owns no
property in Georgia and does not meet section (4). (Resp. Br. [45]
at 9.)
More importantly, they offer no evidence to contradict
defendant Michilin’s affidavit averring that it has no real estate in
Georgia.
The two final sub-sections of O.C.G.A. § 9-10-91 govern domestic
matters not implicated by this litigation. See O.C.G.A. § 9-10-91(5)
and (6).
4
AO 72A
(Rev.8/82)
has indicated that this approach is wrong.
See Innovative Clinical
& Consulting Servs., LLC v. First Nat’l Bank of Ames, 279 Ga. 672
(2005). That is, “the Georgia long-arm statute does not grant courts
in Georgia personal jurisdiction that is coextensive with procedural
due process.
Instead, the long-arm statute must be read literally.
It imposes independent obligations that a plaintiff must establish
for the exercise of personal jurisdiction that are distinct from the
demands of procedural due process.”
Food
Movers
Int’l,
Inc.,
593
Diamond Crystal Brands, Inc. v.
F.3d
1249,
1259-61
(11th
Cir.
2010)(explaining Innovative Clinical decision).
Thus, at least in theory, a non-resident defendant could engage
in conduct that would be sufficient to confer personal jurisdiction
under the Due Process Clause, but insufficient to confer this
jurisdiction under a more exacting Georgia long-arm statute.
In
other words, as to sub-section 1 of the statute, Georgia’s notion of
what it means to transact business in the state could be stricter
than the test that would be applied by a federal due process
analysis.
For this reason, an analysis that looked only to the due
process test would be incomplete.
To decipher in what way the Georgia definition of “transacting
business” is more onerous, or even different, than the standard that
would be imposed on such activity by the Due Process Clause, it is
essential that there be some substantive definition of the term
5
AO 72A
(Rev.8/82)
“transacts business” in Georgia law.
Without a definition of the
term, courts will be unsure of the statute’s contours and will be
forced, out of necessity, to default back to a due process analysis.3
Unfortunately,
as
the
Eleventh
Circuit
has
noted
in
its
exhaustive dissection of the Innovative Clinical opinion, “Georgia
courts have yet to fully explain” what the “[t]ransacts any business”
language means.
Diamond Crystal, 593 F.3d at 1262.
Given that gap,
the Eleventh Circuit has indicated that “unless and until the Georgia
courts provide further authoritative guidance, courts in this circuit
construing the statute literally will have to delineate the precise
contours
of
the
‘[t]ransacts
any
business
within
requirement...according to the facts of each case.”
The
Circuit
has
cautioned
federal
courts,
this
state’
Id. at 1363.
however,
that
in
undertaking this obligation, they must:
resist any temptation to define “[t]ransacts any business”
solely or primarily in terms of the “foreseeability” of an
impact on the Georgia forum....To do so would once again
improperly conflate the long-arm and due process
inquiries....[E]ngrafting a “foreseeability” component,
which the Georgia General Assembly has not seen fit to
include...would amount to just the sort of extension of the
long-arm statute beyond its literal terms that the Georgia
Supreme Court rejected in Innovative Clinical.
3
Indeed, the Diamond Crystal opinion notes that, since
Innovative Clinical, the Georgia Court of Appeals has issued an
opinion interpreting sub-section 1 that appears to continue to
collapse the long-arm test into a “minimum contacts” inquiry under
the Due Process Clause.
Diamond Crystal, 593 F.3d at 1260 n.11
(discussing Aero Toy Store, LLC v. Grieves, 279 Ga. App. 515 (2006).
6
AO 72A
(Rev.8/82)
Id. at 1363 n.15.
Rather, federal courts interpreting the statutory
language “must be limited to the bare language of the statute.”
Id.
Having explained the task, the Eleventh Circuit made the first
stab
at
executing
its
own
directive.
The
court
noted
that,
“interpreted literally,” the term “transacts any business,” requires
the defendant to have “purposefully done some act or consummated some
transaction in [Georgia]....”
Id. at 1264 (citations omitted).
Nevertheless, a defendant need not physically enter the state to have
transacted business therein, meaning that “intangible” acts, such as
mail and telephone calls to Georgia, should be considered.
Id.
In
the case before the Circuit, the defendant had sent purchase orders
to a Georgia manufacturer, had required delivery by customer pickup,
had arranged for third parties to pick up in Georgia the product that
the parties had purchased, and had promised to pay money into
Georgia.
Id. at 1265.
The Eleventh Circuit concluded that this
conduct constituted the transaction of business within Georgia by the
defendant. Accordingly, the plaintiff had satisfied sub-section 1 of
the long-arm statute.
In the present case, however, the defendant did none of the
things that gave rise to personal jurisdiction in Diamond Crystal.
Specifically, as set out in the affidavit of CEO Frank Chang,
defendant Michilin is not licensed, authorized, or registered to do
business in any state.
(Chang Aff. [44] at ¶ 11.)
7
AO 72A
(Rev.8/82)
It does not, nor
has it ever, maintained an office or place of business in Georgia.
(Id. at ¶ 12.)
Similarly, it has never had any employees, including
sales persons, representatives, agents or services, located within or
conducting business in Georgia.
(Id. at ¶¶ 13, 19.)
Further,
defendant Michilin does not do any advertising in Georgia and does
not solicit business from Georgia.
(Id. at ¶ 22.)
None of its
employees have ever attended a trade show or conducted a meeting in
this state either.
(Id. at ¶ 25.)
products will be sold in Georgia.”
It has “no knowledge that its
(Id. at ¶ 23.)
Finally,
defendant had no involvement with distribution or sale of its product
once it was delivered to Aurora Corporation of America in California.
(Id. at ¶ 6.)
Even assuming that plaintiffs presented a prima facie case of
personal jurisdiction for defendant Michilin, the defendant has, with
the above affidavit, rebutted this inference, thereby shifting the
burden to plaintiffs to demonstrate the existence of jurisdiction.
Plaintiffs offer no affidavit or other evidence in response, however,
and merely argue that “[d]efendant Michilin undoubtedly knew that its
products were going to be distributed in Georgia because it sold
these products to a United States-based distributor that services
Georgia.”
(Resp. Br. [45] at 5-6.)
Plaintiffs’ Second Amended Complaint, however, does not allege
that the United States-based distributor actually services Georgia.
8
AO 72A
(Rev.8/82)
An argument in a brief is not evidence and the Court cannot speculate
about what defendant Michilin knew, did not know, or should have
known.
Moreover, even if true, this assertion does not demonstrate
that the defendant transacted business in Georgia.
Accordingly,
plaintiffs have not shown that defendant Michilin transacted any
business in Georgia and has failed to demonstrate jurisdiction under
sub-section 1 of the long-arm statute.
B.
Sub-Sections 2 and 3: Tortious Acts
Under sub-section 2, a Georgia court may exercise personal
jurisdiction over a nonresident who commits a tortious act or
omission within Georgia, insofar as the exercise of that personal
jurisdiction comports with constitutional due process.
Clinical, 279 Ga. at 674.
occurred in Georgia.
within Georgia.
offer
a
basis
Innovative
No act or omission by defendant Michilin
Only the alleged tortious injury occurred
Under these circumstances, sub-section 2 does not
for
personal
jurisdiction.
See
Id.
at
673-74
(affirming requirement that a nonresident “must do certain acts” as
delineated by the statute before nonresident is subject to personal
jurisdiction in Georgia); Anderson v. Deas, 273 Ga. App. 770, 772-73
(2005)(“[a]lthough the injurious consequences would have been felt in
Georgia, it is undisputed that [defendant] never came to Georgia so
as to commit an act here.”), holding undisturbed on remand, 279 Ga.
App. 892 (2006)(“We further concluded that jurisdiction was not
9
AO 72A
(Rev.8/82)
sustainable under paragraph (2) based on [defendant’s] commission of
a tortious act within this state.”).
Under sub-section 3, a Georgia court may exercise personal
jurisdiction over a nonresident who commits a tortious injury in
Georgia caused by an act or omission outside Georgia, only if the
tortfeasor “regularly does or solicits business, or engages in any
other persistent course of conduct, or derives substantial revenue
from goods used or consumed or services rendered in this state.”
Innovative Clinical, LLC, 279 Ga. at 674.
Defendant Michilin’s affidavit makes clear that it does not
regularly conduct or solicit business, engage in any other persistent
course of conduct, or derive substantial revenue from goods used or
consumed, or services rendered, in Georgia.
Plaintiffs offer no
evidence to rebut this affidavit, but instead ask the court to
speculate that because defendant Michilin’s products were purportedly
sold in this market, they “undoubtedly derived substantial revenue
from the sale of these products” and that “[d]efendant Michilin
engaged in a persistent course of conduct in Georgia by engaging a
distributor to sell its products in this market.” (Resp. Br. [45] at
8.)
These assertions are wholly conclusory and insufficient to
sustain a finding of jurisdiction under the long-arm statute.
In
short,
plaintiff
has
failed
jurisdiction under the statute.
10
AO 72A
(Rev.8/82)
to
demonstrate
personal
III. FEDERAL DUE PROCESS
As the plaintiff has failed to prove the existence of personal
jurisdiction under the Georgia long-arm statute, the Court does not
need to reach the question whether such jurisdiction, even if it
existed, would violate the Due Process Clause of the Fourteenth
Amendment.
Nevertheless, given the uncertainty of the definition of
“transacts business” under Georgia law, the Court will examine the
impact of the Clause on this question.
Due process is satisfied “if the non-resident defendant has
established ‘certain minimum contacts with the forum such that the
maintenance of the suit does not offend traditional notions of fair
play and substantial justice.’”
Oldfield v. Pueblo de Bahia Lora,
S.A., 558 F.3d 1210, 1220 (11th Cir. 2009)(quoting Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)).
Once a plaintiff has shown that defendant has “minimum contacts” with
the forum, the burden shifts to the defendant to make a “‘compelling
case’ that the exercise of jurisdiction would violate...fair play and
substantial justice.”
Diamond Crystal Brands, Inc., 593 F.3d at
1267.
Although a defendant’s minimum contacts may give rise to either
“general” or “specific” personal jurisdiction, the parties appear to
agree that the latter will determine the outcome here.
To assert
specific jurisdiction, a defendant’s contacts with the forum (1) must
11
AO 72A
(Rev.8/82)
be related to the plaintiff’s cause of action or have given rise to
it, (2) must involve some act by which the defendant purposefully
availed itself of the privilege of conducting activities within the
forum, and (3) must be of a nature that the defendant should
reasonably anticipate being haled into court in the forum.
Sloss
Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007).
The primary dispute between the parties is whether defendant
Michilin, by selling a product that it might have anticipated could
enter the stream of commerce in Georgia, purposefully avail[ed]
itself of the privilege of conducting activities within the forum.”
Id.
Plaintiffs’ argument that defendant Michilin is subject to
jurisdiction is, in essence, as follows: defendant Michilin made
products available for sale in the United States through a California
distributor.
One of these products ended up in Georgia.
Michilin should have anticipated that this could occur.
Defendant
Therefore,
defendant Michilin purposely availed itself of the privilege of
conducting activities within the forum, thus invoking the benefits
and protections of the laws of the State of Georgia.
(Resp. Br. [45]
at 12-13.)
Plaintiffs rely on the “stream of commerce” theory of personal
jurisdiction, which provides that “[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
12
AO 72A
(Rev.8/82)
stream of commerce with the expectation that they will be purchased
by consumers in the forum State.”
Vermeulen v. Renault, U.S.A.,
Inc.,
Cir.
985
F.2d
1534,
1546
(11th
1993)(citing
World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98 (1980)).
The “stream of commerce” theory provides the easier test for a
plaintiff to meet.
The Eleventh Circuit has also applied, but not
explicitly adopted, a more onerous test: the “stream of commerce
plus” analysis, which arose from Justice O’Connor’s plurality opinion
in Asahi Metal Indus. Co., Ltd. v. Superior Court of California, 480
U.S. 102, 110 (1987).
The “stream of commerce plus” test not only
requires that the defendant place, in the stream of commerce, a
product that ends up in the forum state, but also that the defendant
do something more to “purposefully avail itself of the market in the
forum State.” Vermeulen, 985 F.2d at 1547 (citing Asahi Metal Indus.
Co., Ltd. v. Superior Court of California, 480 US. 102, 110 (1987)).
In Asahi, Justice O’Connor explained that additional conduct by
the defendant, such as designing the product for the market in the
forum state, advertising in the forum state, establishing channels
for providing regular advice to customers in the forum state, or
marketing the product through a distributor who has agreed to serve
as the sales agent in the forum state, may indicate an intent to
serve the market and purposefully avail themselves to the forum.
Asahi Metal Indus., 480 U.S. at 112.
13
AO 72A
(Rev.8/82)
It is unclear which of the two tests the Eleventh Circuit
endorses
in
manufacturers
determining
whose
personal
products
jurisdiction
injure
downstream
as
to
upstream
consumers.
See
Vermeulen, supra (applying “stream of commerce plus” test, but not
explicitly adopting it); Morris v. SSE, Inc., 843 F.2d 489, 493 n.5
(11th Cir. 1988)(applying Justice O’Connor’s test from Asahi and
noting that satisfaction of the narrower test articulated by O’Connor
satisfies other broader tests articulated in Asahi). But see Ruiz de
Molina v. Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1357-58
(11th Cir. 2000)(applying “stream of commerce” test and Calder
effects test). Indeed, courts in this circuit and elsewhere continue
to stumble around in search of the proper standard.
See Vermeulen,
985 F.2d at 1548 n.17 (citing cases which “declined to follow” the
plurality in
Asahi
and continue to apply “stream of commerce”
analysis).
Defendant argues that the “stream of commerce” test relied upon
by plaintiffs is no longer good law after J. McIntyre Machinery, Ltd.
v. Nicastro, 131 S. Ct. 2780 (2011).
Nicastro arose from a products
liability suit filed in a New Jersey state court.
Id. at 2786.
Plaintiff Nicastro seriously injured his hand while using a metalshearing machine manufactured by defendant J. McIntyre Machinery,
Ltd.
Id.
Although the accident occurred in New Jersey, the machine
14
AO 72A
(Rev.8/82)
was manufactured in England where the defendant was incorporated and
operated.
Id.
The New Jersey Supreme Court found the assertion of jurisdiction
comported with due process based on three primary facts.
First, an
independent company agreed to sell the defendant’s machines in the
United States (although the defendant made no sales beyond the United
States distributor and the distributor was not under its control).
Id.
Second, officials for the defendant’s company attended annual
conventions
for
the
scrap
recycling
industry
to
advertise
the
defendant’s machines alongside the distributor. Nicastro, 131 S. Ct.
at 2786.
(These conventions took place in various states, however,
but never in New Jersey.)
Third, four machines, including the
machine that caused the plaintiff’s injuries, ended up in New Jersey.
Id.
The New Jersey Supreme Court also noted that the defendant held
patents in the United States and Europe on its recycling technology,
and that the United States distributor structured its advertising and
sales efforts under the defendant’s direction and guidance.
Id.
The New Jersey Supreme Court held that jurisdiction was proper
because the petitioner knew or reasonably should have known “that its
products are distributed through a nationwide distribution system
that might lead to those products being sold in any of the fifty
states” and because the defendant failed to “take some reasonable
15
AO 72A
(Rev.8/82)
step to prevent the distribution of its products in this State.”
Id.
at 2786.
The Supreme Court reversed, in a 6-3 plurality decision.
In
reaching this conclusion, Justice Kennedy, writing for four justices,
explained that the term “stream of commerce” is nothing more than a
metaphor that refers to the movement of goods from manufacturers
through distributors to consumers.
Id. at 2788.
According to the
plurality opinion, this metaphor, which was relied upon by the New
Jersey Supreme Court as a theory for jurisdiction, arose from the
unexceptional proposition that placing goods into the marketplace
“with the expectation that they will be purchased by consumers with
the forum State [might] indicate purposeful availment.”
131 S. Ct. at 2788 (emphasis added).
Nicastro,
The true inquiry, according to
the plurality, is whether the defendant’s activities manifested an
intention to submit to the power of a sovereign, by purposefully
availing itself of the privilege of conducting activities within the
forum state, and thereby invoking the benefits and protections of its
laws.
Id.
The Court rejected an alternative approach that discards
the concept of sovereign authority in favor of considerations of
fairness and foreseeability.
Id. at 2789-90.
In essence, Justice
Kennedy’s plurality opinion adopted the “stream of commerce plus”
theory of jurisdiction, taken from Justice O’Connor’s view in Asahi.
Id. at 2790 (describing conclusion that “the authority to subject a
16
AO 72A
(Rev.8/82)
defendant to judgment depends on purposeful availment” as “consistent
with Justice O’Connor’s opinion in Asahi”).
Justice Breyer, joined by Justice Alito, concurred.
He agreed
with the plurality that the facts presented were insufficient to
demonstrate “purposeful availment,” as set forth in prior precedents,
but he refused to adopt either the plurality’s “seemingly strict nojurisdiction rule” or the New Jersey Supreme Court’s “absolute
approach.”
Id. at 2792-93.
For Justice Breyer, the record before
the Court did not show that the British manufacturer “purposefully
avail[ed] itself of the privilege of conducting activities within New
Jersey, or that it delivered its goods in the stream of commerce with
the expectation that they will be purchased by New Jersey users.”
Id. at 2792 (internal quotations omitted).
In other words, under
either past precedent, as Justice Breyer read it, or the more
stringent approach adopted by the plurality, asserting jurisdiction
over the defendant would violate due process.
Given
the
Supreme
Court’s
failure
to
clarify
its
earlier
plurality holding in Asahi, this Court must construe the holding of
Nicastro as “that position taken by those Members who concurred in
the judgments on the narrowest grounds.” Marks v. United States, 430
U.S. 188, 193 (1977); United States v. Robison, 505 F.3d 1208, 1221
(11th Cir. 2007). The “narrowest grounds” is understood as the “less
far-reaching” common ground.
Robison, 505 F.3d at 1221.
17
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Justice Breyer’s opinion purports to rely on existing precedent
to reach its conclusion.
Its most narrow holding provides that on
the facts presented to the New Jersey Supreme Court, the defendant
did not purposefully avail itself of the jurisdiction of New Jersey.
Ainsworth v. Cargotec USA, Inc., No. 2:10-CV-236-KS-MTP, 2011 WL
4443626, at *7 (S.D. Miss. Sept. 23, 2011)(describing Nicastro as
limited in its applicability and “[a]t best, it is applicable to
cases presenting the same factual scenario that it does”).
See also
Windsor v. Spinner Indus. Co., Ltd., ___ F. Supp. 2d ___, No. JKB-10114, 2011 WL 5005199, at *5 (D. Md. Oct. 20, 2011)(construing
Nicastro
as
rejecting
the
foreseeability
standard
of
personal
jurisdiction, but otherwise leaving the legal landscape untouched and
applying the Fourth Circuit’s post-Asahi precedents to resolve the
case); Lindsey v. Cargotec USA, Inc., No. 4:09CV-00071-JHM, 2011 WL
4587583, at *7 (W.D. Ky. Sept. 30, 2011)(“because...[Nicastro] did
not conclusively define the breadth and scope of the stream of
commerce theory...and given Justice Breyer’s decision to rely on
current Supreme Court precedents, the Court will continue to adhere
to the Sixth Circuit’s analysis of purposeful availment”).
Assuming that the only inference that one can properly draw from
the Nicastro holding is that the decision is limited to its own
facts,
defendant
Michilin
defendant in Nicastro.
bears
striking
similarity
to
the
Like defendant J. McIntyre, defendant here
18
AO 72A
(Rev.8/82)
a
sold its product to a distributor in the United States, and no sales
were made by defendant beyond that distributor.
Second, as with J.
McIntyre, only a small number of machines wound up in the forum state
(one here, four by J. McIntyre).
Indeed, defendant had fewer
contacts here than did J. McIntyre.
Michilin’s
employees
have
been
That is, none of defendant
alleged
to
have
attended
any
conferences in Georgia. In fact, unlike the additional contacts with
the United States that J. McIntyre had, there is no indication in the
record that defendant Michilin’s employees have attended conferences
anywhere in the United States. Defendant Michilin also lacks the two
additional contacts with the United States that the New Jersey
Supreme Court identified: a United States patent and a United States
distributor who structures its advertising and sales efforts under
the foreign defendant’s direction and guidance.
In sum, whatever test governs foreign nonresident manufacturers
whose products enter the State of Georgia and injure its residents,
the
presents
facts,
which
are
materially
similar
to
those
of
Nicastro, do not demonstrate that defendant Michilin “purposeful[ly]
avail[ed]” itself of the jurisdiction of the State of Georgia.
N.
Ins. Co. of N.Y. v. Constr. Navale Bordeaux, No. 11-60462-CV, 2011 WL
2682950, at *5 (S.D. Fla. July 11, 2011)(twenty sales in state over
2.4 years, control over how the independent dealer makes those sales,
appearance at six trade shows in Florida, and industry advertising
19
AO 72A
(Rev.8/82)
were insufficient to demonstrate “something more” required in due
process
analysis);
Dejana
v.
Marine
Tech.,
Inc.,
No.
10-CV-
4029(JS)(WDW), 2011 WL 4530012, at *6 (E.D.N.Y. Sept. 26, 2011)(no
jurisdiction over seller of specialized, expensive racing boats meant
to be used on racing circuits that include events in forum where
there were no representatives in forum, no boats delivered in forum,
and no sales solicitations in forum); Oticon, Inc. v. Sebotek Hearing
Sys., LLC, ___ F. Supp. 2d ___, No. 08-5489(FLW), 2011 WL 3702423, at
*10 (D.N.J. Aug. 22, 2011)(“Under Nicastro, whether it is five or
nine sales by [defendant] of [codefendant’s] allegedly infringing
products, that is simply too small of a number from which to conclude
that [codefendant] purposefully availed itself of the New Jersey
market.”); Powell v. Profile Design LLC, No. 4:10-cv-2644, 2012 WL
149518, at *8 (S.D. Tx. Jan. 18, 2012)(sale of [defective] bicycle
stem
in
California
simply
does
purposefully directed at [forum]).
not
rise
to
level
of
actions
Compare Morris v. SSE, Inc., 843
F.2d 489 (11th Cir. 1988)(Justice O’Connor’s Asahi test satisfied
where nonresident defendant repaired products for delivery to forum,
advertised in forum based on national trade magazines, and products
were hazardous); Vermeulen, 985 F.2d at 1550 (personal jurisdiction
over foreign state under FSIA consistent with due process where
defendant designed the product for the American market, advertised in
the United States, and maintained a distribution network); Brooks &
20
AO 72A
(Rev.8/82)
Baker, L.L.C. v. Flambeau, Inc., No. 2:10-cv-146-TJW-CE, 2011 WL
4591905, at *4 (E.D. Tx. Sept. 30, 2011)(distinguishing Nicastro
where defendant admitted that it inserted accused products into the
stream of commerce with the intention that the products reach a
national market, along with many more than just one isolated sale to
forum); DRAM Techs. LLC v. Am. II Grp., Inc., No. 1:10-CV-45-TJW,
2011 WL 4591902, at *3 (E.D. Tx. Sept. 30, 2011)(distinguishing
Nicastro where sophisticated electronics manufacturer was aware that
its products would be distributed in the United States, twenty-five
models of product were in forum, internet sales provided direct
shipping to forum, employees regularly visited several United Statesbased customers, and formerly had an American affiliate).
Because asserting personal jurisdiction over defendant Michilin
would offend due process, defendant Michilin’s Motion to Dismiss [44]
is also merited on this alternative ground.
CONCLUSION
For
the
foregoing
Dismiss [44] is GRANTED.
reasons,
defendant
Michilin’s
Motion
to
The Aurora defendants shall file their
response to defendant Michilin’s Motion to Dismiss Cross-claims [50]
by March 26, 2012.
(See Order of Aug. 30, 2011 [52].)
21
AO 72A
(Rev.8/82)
SO ORDERED, this 12th day of MARCH, 2012.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
22
AO 72A
(Rev.8/82)
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