Hawaii Airboards, LLC v. NRS Properties, LLC

Filing 52

ORDER GRANTING DEFENDANT'S RENEWED MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION re 37 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/9/12. -- "Because Hawaii Airboards has not met its burden of showing that NRS has th e minimum contacts with Hawaii necessary for this court to exercise personal jurisdiction over NRS, the court grants NRS's motion to dismiss for lack of personal jurisdiction. The Clerk of Court is directed to enter judgment for NRS and to close the case file." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HAWAII AIRBOARDS, LLC, a
Hawaii Limited Liability
Company,

)
)
)
)
Plaintiff,
)
)
)
vs.
)
)
NORTHWEST RIVER SUPPLIES,
INC., d/b/a/ NRS, an Idaho
)
)
Corporation,
)
)
Defendant.
_____________________________ )

CIVIL NO. 11-00651 SOM-BMK
ORDER GRANTING DEFENDANT’S
RENEWED MOTION TO DISMISS FOR
LACK OF PERSONAL JURISDICTION

ORDER GRANTING DEFENDANT’S RENEWED
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
I.

INTRODUCTION.
Defendant Northwest River Supplies, Inc. (“NRS”), seeks

to dismiss this action on the ground that this court lacks
personal jurisdiction.

Plaintiff Hawaii Airboards, LLC (“Hawaii

Airboards”), claims that NRS is infringing on Hawaii Airboards’s
patent for an inflatable water craft by selling an inflatable
stand-up paddleboard called the “Big Earl.”

NRS is an Idaho

Corporation not licensed to do business in Hawaii and with
neither officers nor employees in Hawaii.

Because Hawaii

Airboards fails to show that NRS has the minimum contacts with
Hawaii necessary for this court to exercise personal jurisdiction
over NRS, the court grants NRS’s motion.

II.

BACKGROUND.
Hawaii Airboards alleges that NRS is infringing on its

patent for its “Inflatable Transportable Water Craft for Survival
or Other Recreational Purposes.”

First Am. Compl. for Patent

Infringement ¶ 7, Dec. 22, 2011, ECF No. 7.

NRS makes and sells,

among other things, inflatable stand-up paddleboards (“SUP
boards”) to customers throughout the United States, including
Hawaii.

Id. ¶ 8.

Hawaii Airboards alleges that, by making,

offering for sale, selling, and distributing one model of such
boards, the “NRS Big Earl SUP Board,” NRS is infringing on its
patent.

Id. ¶ 11.
NRS is an Idaho Corporation, with its principal place

of business in Moscow, Idaho.

Id. ¶ 2.

It sells products used

in river rafting and paddlesport activities such as whitewater
kayaking and canoeing.

See Decl. of Anthony Mangini (“Mangini

Decl.”) ¶ 5, ECF No. 37-1.

NRS markets it products, including

the Big Earl, as appropriate for activities in cold water, such
as rivers and lakes in the northwest United States.

Id. ¶ 18.

NRS says that the Big Earl and its other inflatable boards are
well suited for use in rivers and lakes because they are easily
transportable, but not for ocean wave surfing because they lack
certain performance features such as stability, maneuverability,
and speed.

Id. ¶ 19.

2

NRS SUP boards may be purchased in various athletic
equipment shops or through dealers located throughout the
country.

Id. ¶ 23.

NRS’s website lists shops, including three

in Hawaii, that sell its products, although the shops are not
owned by NRS.
NRS’s website.

Id.

Customers may also purchase items directly on

Id. ¶ 28.

NRS moved to dismiss this action for lack of personal
jurisdiction.

See ECF No. 11.

Hawaii Airboards moved for leave

to conduct jurisdictional discovery, see ECF No. 18, and that
motion was granted by Magistrate Judge Barry Kurren on March 8,
2012, see ECF Nos. 29, 35.

NRS and Hawaii Airboards stipulated

to the withdrawal of NRS’s dismissal motion pending discovery.
After conducting discovery, NRS renewed its motion to dismiss for
lack of personal jurisdiction, and it is the renewed motion that
is now before the court.

See ECF No. 37.

This court held a

hearing on the present motion on August 6, 2012.
III.

LEGAL STANDARD.
Rule 12(b)(2) of the Federal Rules of Civil Procedure

permits a defendant to move for dismissal for lack of personal
jurisdiction.

In patent infringement litigation, this court

applies the law from the United States Court of Appeals for the
Federal Circuit in determining whether this court has personal
jurisdiction over an out-of-state defendant.

Nuance Commc’ns,

Inc. v. Abbyy Software House, 626 F.3d 1222, 1230 (Fed. Cir.

3

2010); Avocent Huntsville Corp. v. Aten Intern. Co., Ltd., 552
F.3d 1324, 1328 (Fed. Cir. 2008).
When no jurisdictional discovery has been conducted, a
plaintiff need only make a prima facie showing of jurisdiction,
and this court must resolve factual disputes in the plaintiff’s
favor.

Nuance Commc’ns, 626 F.3d at 1231; Trintec Indus., Inc.

v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1282 (Fed. Cir.
2005).

In this case, the parties have already conducted

jurisdictional discovery and presented evidence to this court in
that regard, and the court relies on that evidence in making its
decision.
IV.

ANALYSIS.
“Determining whether personal jurisdiction exists over

an out-of-state defendant involves two inquiries: whether a forum
state’s long-arm statute permits service of process, and whether
the assertion of personal jurisdiction would violate due
process.”

Avocent Huntsville Corp., 552 F.3d at 1329 (quoting

Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359 (Fed. Cir. 2001)).
Because Hawaii’s long-arm statute is co-extensive with federal
due process requirements, the jurisdictional analyses under
Hawaii law and federal law merge into one analysis.

See Nuance

Commc’ns, 626 F.3d at 1230; Roth v. Garcia Marquez, 942 F.2d 617,
620 (9th Cir. 1991); Cowen v. First Ins. Co. of Haw., 61 Haw.
644, 649, 608 P.2d 394, 399 (Haw. 1980) (“Hawaii’s long-arm

4

statute, [Haw. Rev. Stat.] § 634-35, was adopted to expand the
jurisdiction of Hawaii’s courts to the extent permitted by the
due process clause of the Fourteenth Amendment.”).
The Due Process Clause of the United States
Constitution protects a defendant’s “liberty interest in not
being subject to the binding judgments of a forum with which he
has established no meaningful ‘contacts, ties, or relations.’”
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985)
(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)).
“The constitutional touchstone for determining whether an
exercise of personal jurisdiction comports with due process
‘remains whether the defendant purposefully established ‘minimum
contacts’ in the forum State.’”

Nuance Commc’ns, 626 F.3d at

1230-31 (quoting Burger King Corp., 471 U.S. 462, 474 (1985)).
“[T]he burden of proof is on the plaintiff to establish ‘minimum
contacts.’”

Inamed Corp., 249 F.3d at 1360.

To have the required minimum contacts, NRS must have
acted and had a connection with Hawaii in a manner that should
have led it to “reasonably anticipate being haled into court” in
Hawaii.

See World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 297 (1980).
functions.

Requiring “minimum contacts” performs two

“It protects the defendant against the burdens of

litigating in a distant or inconvenient forum.

And it acts to

ensure that the States[,] through their courts, do not reach out

5

beyond the limits imposed on them by their status as coequal
sovereigns in a federal system.”

Id. at 292.

In determining whether a defendant has the requisite
minimum contacts, courts have created two jurisdictional
concepts--general and specific jurisdiction.

Hawaii Airboards

fails to establish that this court has either type of
jurisdiction over NRS.
A.

General Jurisdiction.

A court may exercise general jurisdiction when “the
defendant has continuous and systematic contacts . . . with the
forum state, even if those contacts are not related to the cause
of action.”

Elecs. for Imaging, Inc. v. Coyle, 340 F.3d 1344,

1349 (Fed. Cir. 2003) (citing Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984)).

The

defendant’s contacts must be “so ‘continuous and systematic’ as
to render them essentially at home in the form State.”

Goodyear

Dunlop Tires Operations, S.A. v. Brown, __ U.S. __, 131 S. Ct.
2846, 2851 (2011) (citing Int’l Shoe, 326 U.S. at 317).
The Supreme Court has referred to Perkins v. Benguet
Consol. Mining Co., 342 U.S. 437 (1952), as “the textbook case of
general jurisdiction appropriately exercised over a foreign
corporation.”

Goodyear, 131 S. Ct. at 2856 (quoting Donahue v.

Far Eastern Air Transp. Corp., 652 F.2d 1032, 1037 (D.C. Cir.
1981)).

The defendant in issue in Perkins was a Philippine

6

corporation that had ceased activities in the Philippines during
World War II.

342 U.S. at 447.

its business in Ohio.

During that time, it conducted

The corporation’s president (who was also

its general manager and principal stockholder) maintained a
corporate office in Ohio where he kept business files, handled
corporate correspondence, drew and distributed salary checks on
behalf of the company, held directors’ meeting, and supervised
the corporation’s limited wartime activities.

Id. at 448.

The

corporation’s president also maintained active bank accounts in
Ohio with substantial balances of company funds from which he
drew employees’ salaries.

Id.

By contrast, the Supreme Court concluded that a Texas
court did not have personal jurisdiction over an out-of-state
corporation in Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408 (1984).

The defendant, a Colombian corporation, had

no place of business in Texas and was not licensed to do business
there, but it had sent its CEO to Texas to negotiate a contract;
accepted into its New York bank account checks drawn on a Houston
bank; purchased 80% of its helicopter fleet, spare parts, and
accessories from a Texas company; and sent pilots to Texas for
training and management for consultation.

466 U.S. at 416-418.

Those links “did not ‘constitute the kind of continuous and
systematic general business contacts . . . found to exist in

7

Perkins.’”

Goodyear, 131 S. Ct. at 2856 (citing Helicopteros,

466 U.S. at 415-16).
“Neither the United States Supreme Court nor [the
Federal Circuit] has outlined a specific test to follow when
analyzing whether a defendant’s activities within a forum are
‘continuous and systematic.’”

Synthes (U.S.A.) v. G.M. Dos Reis

Jr. Ind. Com. De Equip. Medico, 563 F.3d 1285, 1297 (Fed. Cir.
2009) (quoting LSI Indus. Inc. v. Hubbell Lighting, Inc., 232
F.3d 1369, 1375 (Fed. Cir. 2000)).

However, “sporadic and

insubstantial contacts” are insufficient.

See Campbell Pet Co.

v. Miale, 542 F.3d 879, 884 (Fed. Cir. 2008).
The Federal Circuit has found “continuous and
systematic contacts” when a defendant company had millions of
dollars of sales over the preceding several years, a broad
distribution network in the forum state, and a national sales
force that included agents in the forum state.

LSI Indus.,

232 F.3d at 1375; LSI Indus., Inc. v. Hubbell Lighting, Inc.,
64 F. Supp. 2d 705, 706 (S.D. Ohio 1999), rev’d, 232 F.3d
at 1369.

The company did not dispute that it had conducted a

“significant amount of business” in the forum state.

LSI Indus.,

64 F. Supp. 2d at 706.
On the other hand, the Federal Circuit has concluded
that a defendant did not have “continuous and systematic
contacts” in California when the company was not registered to do

8

business there and had no facilities, assets, employees, or
agents there, even though the company had sent representatives to
California to negotiate a business agreement, entered into
agreements with about ten California companies, collaborated with
a California company, attended three conferences or trade shows
in California, made 20 sales to a California company for $7,600
(which amounted to 1% of the company’s sales that year), and
published an “application note” on the globally accessible
website of Nature magazine.

Autogenomics, Inc. v. Oxford Gene

Tech. Ltd., 566 F.3d 1012, 1015-18 (Fed. Cir. 2009).

The

plaintiff had characterized the application note as an
advertisement to California companies because the University of
California was a top visitor to that website.

Id. at 1016.

NRS’s contacts with Hawaii are similarly neither
continuous nor systematic enough for this court to say that it
has rendered itself “at home” in Hawaii.
S. Ct. at 2851.

See Goodyear, 131

NRS is not licenced to do business in Hawaii.

Mangini Decl. ¶¶ 9-14.

It has no offices, employees, agents, or

bank accounts in Hawaii.
any property in Hawaii.
a Hawaii resident.

Id.

It does not own, rent, or lease

Id. ¶ 12.

NRS has never contracted with

Id. ¶ 16.

Nor does NRS market its products to Hawaii customers.
Id. ¶ 18.

Its products are designed for cold-water activities.

Id.; Mangini Decl at Ex. 2, ECF No. 37-3.

9

NRS has never

advertised in Hawaii specifically, and no NRS employee has
traveled to Hawaii to promote NRS’s products or attend trade
shows.

Id. ¶ 21.

No employee has ever made sales calls directed

to customers in Hawaii.

Id.

NRS does not operate any retail

shops in Hawaii.1
Hawaii Airboards rests its argument that NRS has
continuous and systematic contacts with Hawaii on (1) NRS’s sales
in Hawaii, (2) the accounts NRS maintains with its Hawaii
dealers, (3) NRS employees’ travel to Hawaii, and (4) NRS’s
interactive website.

Those contacts are insufficient to give

rise to general jurisdiction.
With respect to NRS’s Hawaii sales and accounts, in
2011 and 2012, all sales to Hawaii amounted to only one-tenth of
one percent (0.01%) of NRS’s total sales.

Mangini Decl. ¶ 28.

In 2010, 2011, and 2012, sales made by NRS’s Hawaii dealers
amounted to less than 0.01% of NRS’s total dealer sales.
¶ 25.

Id.

At the hearing on this motion, Hawaii Airboards urged this

court to consider the number of sales made in Hawaii and the
total dollar amount of those sales, rather than the percentage of
total sales.

Hawaii Airboards contended that NRS transacted

between 250 and 275 sales in Hawaii in 2011, totaling about

1

At the hearing, NRS stated that NRS does not sell its
goods through a network of its own retail stores. Purchases must
be made through one of its dealers, online, or at its one outlet
at its headquarters in Idaho.
10

$45,000.

NRS did not contest those figures.

Those figures

appear to include sales made through its dealers and its website.
Hawaii Airboards cites no authority establishing that
either the number of transactions or the dollar amount of sales
in a forum state is more significant than the percentage of NRS’s
total sales involving Hawaii.

The cases reviewed by this court

do not indicate that any particular figure is critical.

Courts

look to the totality of the circumstances rather than to
individual facts.

See, e.g., Arlington Indus., Inc. v. Elec.

Custom Distrib., Inc., 817 F. Supp. 2d 473, 478 (M.D. Pa. 2011)
(“[I]n analyzing the Defendant’s contacts with the forum, a
district court will look to the aggregate effect of those
contacts as a whole.” (citing Aeration Solutions, Inc. v.
Dickman, 85 Fed. Appx. 772, 774 (Fed. Cir. 2004))).
Although $45,000 worth of sales and 250 transactions
could be significant in some circumstances, put in the context of
NRS’s otherwise minimal contacts with Hawaii, those sales and
transactions are insufficient to confer general jurisdiction in
Hawaii.
In so ruling, this court is guided by
Hockerson-Halberstadt, Inc. v. Costco Wholesale Corp., 2000 WL
726888, at *2 (E.D. La. June 5, 2000), aff’d sub nom.
Hockerson-Halberstadt, Inc., v. Propet USA, Inc., 62 Fed. Appx.
322 (Fed. Cir. 2003).

In that case, general jurisdiction was not

11

exercised over Costco, which had contact with Louisiana only
through online sales totaling $32,252.32 over 18 months.

Those

sales constituted less than 0.0000008 of Costco’s total sales
during that time period.
Similarly, in Stairmaster Sports/Medical Products, Inc.
v. Pacific Fitness Corp., 916 F. Supp. 1049, 1053 (W. D. Wash.
1994), aff’d, 78 F.3d 602 (Fed. Cir. 1996), the United States
District Court for the Western District of Washington, applying
Ninth Circuit law, declined to exercise general jurisdiction over
an out-of-state defendant that sold its products in Washington
through three independent distributors and shipped its products
to Washington.

The products shipped to Washington constituted 3%

of the company’s total sales.

Id.

Employees of the company had

also made isolated visits to Washington.2

Id.

With respect to NRS’s other contacts with Hawaii,
Hawaii Airboards does not show that NRS employees traveled to
Hawaii to promote NRS.

Hawaii Airboards points to two employees

who used a Big Earl in Maui and a photograph of an employee in
Hawaii that appeared in an NRS newsletter.

The record before

this court indicates that the employees were on vacation in Maui,
where they used the Big Earl for recreation.

2

Supplemental Decl.

Even though the district court had applied Ninth Circuit
law, that order was affirmed by the Federal Circuit in an
unpublished decision. Stairmaster Sports/Medical Prod., 78 F.3d
at 602.
12

of Anthony Mangini (“Mangini Decl. 2") ¶¶ 10-16, ECF No. 44-1.
There is no evidence that they were promoting NRS at the time.
The employee in the newsletter was photographed by her husband
while they were on vacation.

Id. ¶ 24.

Although NRS published

the photo, the newsletter did not refer to Hawaii, and it is not
obvious that the picture was taken in Hawaii.
Ex. I, ECF No. 46-9.

See Moran Decl. at

There is no evidence that NRS sent that

employee to Hawaii to be photographed.

Mangini Decl. 2 ¶ 21.

Nor does Hawaii Airboards establish that a planned
Hawaii photoshoot constituted an NRS contact with Hawaii.

Hawaii

Airboards relies on an email exchange between the NRS Marketing
Coordinator and a photographer discussing a possible photoshoot
in Hawaii using NRS products.

Moran Decl. at Ex. H.

That

photoshoot was not commissioned by NRS, and there is no evidence
in the record that it actually occurred.

Mangini Decl. 2 ¶ 20.

Notably, NRS’s website is not specifically directed at
customers in Hawaii.

See Campbell Pet Co., 542 F.3d at 884

(holding that the defendants’ maintenance of a website was
insufficient to give rise to general jurisdiction because it was
not directed at customers in Washington and did not appear to
have generated any sales in Washington); Trintec Indus., 395 F.3d
at 1281 (holding that the defendants’ website did not establish
general jurisdiction in the District of Columbia, because it was
not specifically directed at the District of Columbia, “but

13

instead [was] available to all customers throughout the country
who [had] access to the Internet. . . .

[T]he ability of

District residents to access the defendants’ websites . . . does
not by itself show any persistent course of conduct by the
defendants in the District.”).
Taken together, NRS’s Hawaii contacts fail to rise to
the continuous and systematic contacts necessary for general
jurisdiction.
B.

Specific Jurisdiction.

A court may exercise specific jurisdiction over an outof-state defendant when that defendant has “purposefully directed
his activities at residents of the forum and the litigation
results from alleged injuries that arise out of or relate to
those activities.”

Deprenyl Animal Health, Inc. v. Univ. of

Toronto Innovations Found., 297 F.3d 1343, 1350–51 (Fed. Cir.
2002) (quoting Inamed Corp., 249 F.3d at 1360).

“The Federal

Circuit applies a three prong test to determine if specific
jurisdiction exists: (1) whether the defendant purposefully
directed activities at residents of the forum; (2) whether the
claim arises out of or relates to those activities; and (3)
whether assertion of personal jurisdiction is reasonable and
fair.”

Nuance Commc’ns, 626 F.3d at 1231 (citing Akro Corp. v.

Luker, 45 F.3d 1541, 1545-46 (Fed. Cir. 1995)).

14

Hawaii Airboards argues that NRS has purposefully
directed promotion and sales activities of its SUP boards at
residents of Hawaii, and that its infringement claim arises out
of those activities.

The record does not indicate that NRS has

purposefully directed any activities relating to the allegedly
infringing Big Earl board.
NRS maintains that it has never sold a Big Earl board
in Hawaii, that it does not market that board in Hawaii, and that
it has never sent a Big Earl board as a demo to any dealer or
customer in Hawaii.

See Mangini Decl. ¶¶ 26-28

NRS has, however, shipped one Big Earl board to Hawaii.
One of NRS’s dealers in California ordered a Big Earl board and
asked NRS to ship it to Hawaii.

Id. ¶ 27.

Hawaii Airboards

contends that the shipment of that board to Hawaii amounts to
purposeful direction of activities to Hawaii such that NRS should
have anticipated being haled into court in Hawaii.

However,

nothing in the record suggests that NRS sought Hawaii out as a
market in connection with that shipment.

The Big Earl is not

sold anywhere in Hawaii, not even by the three shops that sell
NRS products in Hawaii.

Id. ¶ 23.

NRS sold the board to a

California dealer, and it was the dealer who requested that the
board be shipped to Hawaii and who paid the shipping charges.
Id. ¶ 27.

NRS appears to have had no control over where the

15

customer wanted the board sent and cannot be said to have
“purposefully directed” the board to a Hawaii resident.
Even though there may be circumstances in which the
sale of a single allegedly infringing product in a forum state
gives rise to specific jurisdiction, the delivery of a product is
not necessarily equivalent to the transaction of a sale.
Although delivered to Hawaii, the sale of the Big Earl in issue
appears to have been transacted elsewhere.

NRS agreed to sell

its product to the California dealer, and the California company
was billed for the product.

Hawaii Airboards, which has the

burden of showing that this court has personal jurisdiction over
NRS, provides no authority suggesting that the point of delivery
should be treated like the place of sale.
Hawaii Airboards also unpersuasively argues that NRS
purposefully directed activities toward Hawaii residents when the
two NRS employees who used a Big Earl while vacationing on Maui
showed the board to a rental shop in Maui.

As discussed above,

NRS did not direct those employees to promote or test the board
in Hawaii.

The employees were using the board for recreation and

answered questions that the rental company asked them about the
board.

See Mangini Decl. 2 ¶¶ 12-13.
Relying on an email written by one of the employees who

used the Big Earl in Hawaii suggesting that NRS should enter the
ocean rental market, Hawaii Airboards further contends that NRS

16

intended to sell its SUP boards, including the Big Earl, in
Hawaii.

See Moran Decl. at Ex. D.

However, the record indicates

that the NRS Marketing Director rejected that employee’s
suggestion because the ocean rental market is outside the scope
of NRS’s cold-water paddlesport market.

Mangini Decl. 2 ¶ 15.

Similarly unpersuasive is Hawaii Airboards’s contention
that correspondence sent to NRS’s sales employees by NRS’s
Marketing Director confirms that NRS had previously sold and
shipped SUP boards, presumably including the Big Earl, to Hawaii.
The email states: “we will no longer be able to sell or ship any
NRS inflatable SUP board to the state of Hawaii.”
Ex. F.

Moran Decl. at

Hawaii Airboards interprets the email as conclusively

showing that NRS previously sold and shipped SUP boards to Hawaii
on numerous occasions.

Even after having conducted

jurisdictional discovery, Hawaii Airboards could point to no
evidence supporting its reading of that email.

The present

record supports NRS’s contention that it has not sold, shipped,
or marketed any SUP boards to anyone in Hawaii, other than the
Big Earl board that was sold to the California dealer who asked
that the board be shipped to Hawaii.

The email does not

contradict NRS’s position.
Finally, relying on Beverly Hills Fan Company v. Royal
Sovereign Corp., 21 F.3d 1558 (Fed. Cir. 1994), Hawaii Airboards
contends that NRS has purposefully directed activities at Hawaii

17

residents by placing the Big Earl board in the “stream of
commerce.”

The Supreme Court has held that personal jurisdiction

over an out-of-state corporation may be appropriate when that
corporation “delivers its products into the stream of commerce
with the expectation that they will be purchased by consumers in
the forum State.”3

World-Wide Volkswagen, 444 U.S. at 297-98 (as

quoted in Beverly Hills Fan, 21 F.3d at 1566).

A majority of the

Supreme Court has yet to agree on the exact requirements for the
application of that theory.

In J. McIntyre Machinery, Ltd. v.

Nicastro, __ U.S. __, 131 S. Ct. 2780, 2788 (2011), and Asahi
Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112 (1987), the
plurality stated that a company must do more than just place a
product in the stream of commerce; it must purposefully direct
some action toward the forum state.

Action showing “purposeful

direction” might include “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.”
Metals, 480 U.S. at 112.

Asahi

The concurrence in Asahi Metals, id.

at 117 (Brennan, White, Marshall, & Blackmun, JJ., concurring),
viewed sufficient the placement of a product in the stream of

3

The stream of commerce theory is applicable only to
specific jurisdiction, not general jurisdiction. Goodyear, 131
S. Ct. at 2851.
18

commerce, so long as the company in issue was aware that the
product was being marketed in the forum state.
The Federal Circuit has declined to state whether it
requires additional conduct showing purposeful direction.

See

Commissariat A L’Energie Atomique v. Chi Mei Optoelectronics
Corp., 395 F.3d 1315, 1322 (Fed. Cir. 2005); Beverly Hills Fan,
21 F.3d at 1566.
In Beverly Hills Fan, the Federal Circuit held that the
plaintiff had made the required jurisdictional showing under
either version of the stream of commerce theory:
When viewed in the light of the allegations
and the uncontroverted assertions in the
affidavits, plaintiff has stated all of the
necessary ingredients for an exercise of
jurisdiction consonant with due process:
defendants, acting in consort, placed the
accused [product] in the stream of commerce,
they knew the likely destination of the
products, and their conduct and connections
with the forum state were such that they
should reasonably have anticipated being
brought into court there.
Id.

The defendants were alleged to have purposefully shipped and

sold its products, through intermediaries, to customers in the
forum state.

Id. at 1563-64.

Significant to the Federal Circuit

was the shipping of products through an established distribution
channel.

Id. at 1565-66, 1565 n.15.
Hawaii Airboards argues that NRS’s California dealer

served as a distribution channel analogous to the intermediaries
in Beverly Hills Fan.

However, the shipment to Hawaii appears to
19

have been an isolated occurrence.

There is no evidence that the

Big Earl in issue reached the Hawaii market through an
established distribution channel.

See World-Wide Volkswagen

Corp., 444 U.S. at 297 (“[I]f the sale of a product of a
manufacturer or distributor . . . is not simply an isolated
occurrence, but arises from the efforts of the manufacturer or
distributor to serve directly or indirectly, the market for its
product in other States, it is not unreasonable to subject it to
suit in one of those States.”).
On a more basic level, Hawaii Airboards does not show
that NRS knew or could have predicted that the Big Earl board in
issue was to be shipped to Hawaii.

See id. at 297-98 (requiring

that a defendant expect that the product in issue be “purchased
by” consumers in the forum state).

In Beverly Hills Fan, 21 F.3d

at 1564, the distributor, a retail store, had outlets located in
the forum state and the defendants had had an ongoing
relationship with the distributor, indicating that the defendants
in issue knew that their product would be sold in that state.

In

the present case, there is no evidence that NRS viewed the
California dealer as having locations or customers in Hawaii.

It

is not even clear from the record that the board was ever
intended to be sold in Hawaii.

The invoice for the board and an

email exchange between the California dealer and an NRS account
manager suggest that the board was shipped to an employee or

20

owner of the California dealer, in care of another individual.
See Moran Decl. at Ex. B; Decl. of Duncan Palmatier at Ex. 1, ECF
No. 48.

Thus, it is possible the board was shipped for personal

use.
In addition, to the extent the Federal Circuit requires
some conduct showing purposeful direction in addition to the
placing of a product in the stream of commerce, Hawaii Airboards
fails to provide evidence of such conduct.

As discussed above,

there is no evidence that NRS purposefully directed any activity
related to the Big Earl board toward residents in Hawaii.
Hawaii Airboards fails to show that this court has
specific jurisdiction over NRS.
V.

CONCLUSION.
Because Hawaii Airboards has not met its burden of

showing that NRS has the minimum contacts with Hawaii necessary
for this court to exercise personal jurisdiction over NRS, the
court grants NRS’s motion to dismiss for lack of personal
jurisdiction.
The Clerk of Court is directed to enter judgment for
NRS and to close the case file.

21

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 9, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Hawaii Airboards, LLC, v. Northwest River Supplies, Inc.; Civil No. 11-00272 SOM/BMK;
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION.

22