BROWN v. BMW OF NORTH AMERICA, LLC et al

Filing 97

ORDER granting BMW AG's 65 Motion to Dismiss for Lack of Jurisdiction and DISMISSES Ms. Brown's claims against BMW AG WITHOUT PREJUDICE for lack of personal jurisdiction. No partial final judgment shall issue at this time. (See Order). Signed by Judge Jane Magnus-Stinson on 2/4/2016. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARSHA RUDDELL BROWN,
Plaintiff,
vs.
BMW OF NORTH AMERICA, LLC,
BAYERISCHE MOTOREN WERKE AG,
Defendants.

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No. 1:14-cv-00931-JMS-DML

ORDER
Presently pending before the Court is Defendant Bayerische Motoren Werke AG’s (“BMW
AG”) Motion to Dismiss for Lack of Personal Jurisdiction. [Filing No. 65.] BMW AG seeks to
dismiss Marsha Ruddell Brown’s Third Amended Complaint for negligence arising from injuries
sustained in a motor vehicle accident. [Filing No. 42.] For the reasons stated herein, the Court
GRANTS BMW AG’s Motion to Dismiss. [Filing No. 65.]
I.
APPLICABLE LEGAL STANDARD
When a defendant moves to dismiss a complaint under Federal Rule of Civil Procedure
12(b)(2), “[t]he plaintiff bears the burden of showing that personal jurisdiction over the defendant
exists.” Claus v. Mize, 317 F.3d 725, 727 (7th Cir. 2003). When, as here, the Court “rules on a
defendant’s motion to dismiss based on the submission of written materials, without the benefit of
an evidentiary hearing . . . the plaintiff ‘need only make out a prima facie case of personal
jurisdiction.’” Purdue Research Found. v. Sanofi–Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir.
2003) (quoting Hyatt Int’l. Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002)). Factual disputes,
however, are resolved in the plaintiff’s favor. Id.

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“A federal district court’s personal jurisdiction over a defendant is established in a
diversity-jurisdiction case . . . only so long as the defendant is subject to the jurisdiction of a court
of general jurisdiction in the state where the district court is located.” Northern Grain Mktg., LLC
v. Greving, 743 F.3d 487, 491 (7th Cir. 2014). Indiana Trial Rule 4.4(A) serves as Indiana’s longarm provision and expands personal jurisdiction to the full extent permitted by the Due Process
Clause. See LinkAmerica Corp. v. Cox, 857 N.E.2d 961, 965–66 (Ind. 2006). “Thus, the statutory
question merges with the constitutional one—if [Indiana] constitutionally may exercise personal
jurisdiction over a defendant, its long-arm statute will enable it to do so.” Northern Grain, 743
F.3d at 492.
“The federal constitutional limits of a court’s personal jurisdiction in a diversity case are
found in the Fourteenth Amendment’s due-process clause.” Id. “[F]ederal constitutional law
draws a sharp and vital distinction between two types of personal jurisdiction: specific or caselinked jurisdiction, and general or all-purpose jurisdiction.” Abelesz v. OTP Bank, 692 F.3d 638,
654 (7th Cir. 2012). “If the defendant’s contacts are so extensive that it is subject to general
personal jurisdiction, then it can be sued in the forum state for any cause of action arising in any
place. More limited contacts may subject the defendant only to specific personal jurisdiction, in
which case the plaintiff must show that its claims against the defendant arise out of the defendant’s
constitutionally sufficient contacts with the state.” uBID, Inc. v. GoDaddy Group, Inc., 623 F.3d
421, 425 (7th Cir. 2010).
II.
BACKGROUND
Ms. Brown makes the following allegation in her Complaint:
On September 29, 2012, Ms. Brown’s MINI Cooper (“MINI”) went off the road into a
ditch, rolled over, and landed on the roof. [Filing No. 42 at 4.] She made “injurious contact” with
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the roof of the vehicle due to the design of the seat belt, which caused a fracture on her cervical
vertebrae and resulted in partial quadriplegia. [Filing No. 42 at 4.] Ms. Brown subsequently filed
a claim for negligence against BMW of North America (“BMW NA”) and BMW AG. [Filing No.
42.] She alleges that BMW AG designed and manufactured the MINI, and that BMW NA, as the
wholly owned subsidiary of BMW AG, imports and distributes motor vehicles and parts for BMW
AG in the United States and Indiana. [Filing No. 42 at 2-3.] Ms. Brown alleges that BMW AG
bears responsibility as the manufacturer of the MINI, and that a properly designed seat belt system
would have prevented Ms. Brown from making contact with the roof. [Filing No. 42 at 4-5.]
In response to the Complaint, BMW AG filed the pending motion to dismiss for lack of
personal jurisdiction. [Filing No. 65.] It alleges that it is a corporation organized and existing
under the laws of the Federal Republic of Germany. [Filing No. 66 at 8.] BMW AG submitted a
declaration from its in-house legal counsel, Jakob Hoelldobler, in which he attests that BMW AG
is a separate and independent legal entity from BMW NA, and that BMW NA is an indirect
subsidiary of BMW AG. [Filing No. 66-1 at 3.] Further, the declaration states that BMW AG is
not incorporated in Indiana, not qualified to do business in Indiana, and has not filed or sought to
file Articles of Incorporation or other qualifications to do business in Indiana. [Filing No. 66 at
8.] It asserts that it has no branch office, authorized agent for service of process, or property of
any kind in Indiana. [Filing No. 66 at 8.] Lastly, BMW AG claims that it does not specifically
advertise toward residents of Indiana, and has made no direct sales to customers in Indiana. [Filing
No. 66 at 8.]
In response to the motion, Ms. Brown provides two pieces of evidence, BMW AG’s 2014
Financial Statement and BMW AG’s 2014 Annual Report. [Filing No. 82 at 4-6; Filing No. 821.] She also cites to various BMW websites in her brief to support her allegations. [Filing No.

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82-2.] Ms. Brown states that in 2014, BMW AG sold more cars in the United States than in
Germany, and that such projection is expected to increase by 2015. [Filing No. 82 at 2.] Ms.
Brown claims that in its Annual Report, BMW AG recognizes the likelihood of being “involved
in actions like this one.” [Filing No. 82 at 3; Filing No. 82-2.] Although she claims she cannot
determine “the revenue BMW AG earned from its sale of cars and motorcycles in Indiana,” Ms.
Brown states that she is able to extrapolate the amount that BMW AG earned from the United
States. [Filing No. 82 at 4.] She also lists the names and addresses of the BMW dealerships
located in Indiana. [Filing No. 82 at 4-5.] Lastly, Ms. Brown claims that the BMW dealerships
give their customers the opportunity “to go to Munich, Germany, BMW AG’s headquarters, [to]
pick up their car and tour Europe for fourteen days,” although she further contends that “there is
no way of knowing how many customers in Indiana have taken that option . . . .” [Filing 82 at No.
5-6.]
The parties dispute whether the foregoing is sufficient for this Court to exercise personal
jurisdiction over BMW AG.
III.
DISCUSSION
BMW AG moves to dismiss Ms. Brown’s Third Amended Complaint on the basis that it
is not subject to this Court’s personal jurisdiction. [Filing No. 66 at 5.] BMW AG claims that 1)
general jurisdiction does not exist because it is not “at home” in Indiana, [Filing No. 66 at 13], and
2) specific jurisdiction does not exist because BMW AG does not have minimum contacts in
Indiana and it did not purposely avail itself of the privileges of conducting activities within Indiana,

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[Filing No. 66 at 16]. 1 In response, Ms. Brown does not address whether general or specific
jurisdiction exists over BMW AG, and instead argues that this Court has personal jurisdiction
pursuant to Indiana Trial Rule 4.4(A)(1) and (3). [Filing No. 82 at 6-7.]
Because the analysis of general jurisdiction and specific jurisdiction invoke distinct legal
principles, the Court will address the parties’ arguments in terms of general jurisdiction and
specific jurisdiction as BMW AG did.
A. General Jurisdiction
BMW AG argues that it has no meaningful contacts in Indiana. [Filing No. 66 at 9.] It
asserts that it is incorporated and maintains its principal place of business in Munich, Germany,
and does not operate a place of business in Indiana. [Filing No. 66 at 9.] It further argues that it
does not maintain an office, conduct business, or sell any of its products in Indiana, and that it is
not licensed to do business and does not have a registered agent in Indiana. [Filing No. 66 at 910.] It claims that BMW NA is an indirect subsidiary of BMW AG, and that both companies are
separate legal entities that run separate operations and maintain separate assets. Because of its
business structure, BMW AG contends that the forum contacts of BMW NA cannot be imputed to
BMW AG simply because it is a parent corporation. [Filing No. 66 at 15.]
In response, Ms. Brown does not respond to BMW AG’s general jurisdiction arguments,
and instead argues that personal jurisdiction exists over BMW AG because of Indiana’s long-arm
statute, Indiana Trial Rule 4.4(A). [Filing No. 82 at 7-9.] Ms. Brown generally alleges that BMW

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BMW AG raises a third argument, that to exercise personal jurisdiction over BMW AG would
be unreasonable and would offend the traditional notions of fair play and substantial justice.
[Filing No. 66 at 19.] However, the Court need not address this issue since, as will be discussed,
it finds that neither general jurisdiction nor specific jurisdiction exists over BMW AG.
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AG is connected to various BMW dealerships in Indiana because of the revenue that it makes from
selling those vehicles in Indiana. [Filing No. 82 at 2-4.]
In reply, BMW AG reiterates many of its arguments and states that Ms. Brown has not
demonstrated a prima facie case of personal jurisdiction. [Filing No. 85 at 1.] BMW AG argues
that Ms. Brown makes no attempt to respond to its general jurisdiction arguments and that she
conflates the law of general and specific jurisdiction. [Filing No. 85 at 2.] Moreover, BMW AG
reiterates that Mr. Hoelldobler’s declaration demonstrates that no general jurisdiction exists
because it is not “at home” in Indiana and has no meaningful contacts with Indiana. [Filing No.
85 at 2.] Lastly, BMW AG argues that Ms. Brown makes no attempt to rebut any of BMW AG’s
arguments, and has not pled or offered an alter ego theory to tie BMW AG with the BMW
dealerships in Indiana. [Filing No. 85 at 3.]
Unlike specific jurisdiction, general jurisdiction permits a defendant to be sued in the forum
state regardless of the subject matter of the litigation. Purdue, 338 F.3d at 787. “General
jurisdiction is permitted only where the defendant has ‘continuous and systematic general business
contacts’ with the forum” that it would be “fundamentally fair to require it to answer in [that forum]
in any litigation arising out of any transaction or occurrence taking place anywhere in the world.”
Id. (original emphasis) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
416 (1984)). Defendant’s “affiliations with the state [must be] so ‘continuous and systematic’ as
to render them essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A.
v. Brown, 131 S.Ct. 2846, 2851 (2011) (citing Int’l. Shoe Co. v. State of Wash., Office of
Unemployment Compensation and Placement, 326 U.S. 310, 317 (1945)). The general jurisdiction
standard is rigorous because “the consequences can be severe: if a defendant is subject to general
jurisdiction in a state, then it may be called into court there to answer for any alleged wrong,

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committed in any place, no matter how unrelated to the defendant’s contacts with the forum.”
uBID, 623 F.3d at 426.
BMW AG argues that it is a separate entity from BMW NA, and that it maintains no
contacts in Indiana. In turn, Ms. Brown does not respond to BMW AG’s argument that no general
jurisdiction exists.

Rather, she relies on Indiana’s long-arm statute to argue that personal

jurisdiction exists over BMW AG and then cites to case law that discusses both specific jurisdiction
and general jurisdiction, but makes no effort to argue which legal principle applies. The difference
between specific and general jurisdiction is material since “the constitutional requirement for
general jurisdiction is ‘considerably more stringent’ than that required for specific jurisdiction.”
Purdue, 338 F.3d at 787 (citations omitted). Specific jurisdiction, at the very least, focuses on
whether the party has some minimum contacts with the state related to the litigation, whereas
general jurisdiction focuses on whether the party has continuous and systematic contacts to render
it essentially at home.
To the extent that Ms. Brown argues that general jurisdiction exists over BMW AG, the
Court finds that no proper basis exists. First, Ms. Brown fails to present sufficient evidence or
arguments as to how BMW AG maintains the level of contact with Indiana to support a conclusion
that it can be considered “at home” here. She makes no attempt to overcome the presumption that
exercising personal jurisdiction over a parent company for the actions of its subsidiaries violates
due process. See LinkAmerica, 857 N.E.2d at 968 (discussing that a parent and a subsidiary are
independent entities and that clear evidence must be presented to overcome the presumption that
exercising jurisdiction over the parent company violates due process); Cent. States, Se. & Sw.
Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 944 (7th Cir. 2000) (“Where

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two corporations are in fact separate, permitting the activities of the subsidiary to be used as a basis
for personal jurisdiction over the parent violates this principle and thus due process.”).
Second, Ms. Brown merely assumes that BMW AG is somehow connected with the BMW
dealerships in Indiana, and that “it knew with absolute certainty that automobiles and motorcycles
it designed and manufactured would wind up in Indiana.” [Filing No. 82 at 10.] She wholly fails
to present an evidentiary link either to connect BMW NA to any of the BMW dealerships in
Indiana, or to support the foregoing assertion of “certain knowledge” by BMW AG. Even if such
allegation were true, such a “stream of commerce” argument is insufficient to assert general
jurisdiction over a foreign corporation. See Goodyear, 131 S. Ct. 2846, 2851 (2011) (holding that
tires made by the parent company’s foreign subsidiaries and placed into the stream of commerce
was a “connection so limited between the forum and the foreign corporation” that it was “an
inadequate basis for the exercise of general jurisdiction”). Accordingly, the Court concludes that
no general jurisdiction exists over BMW AG.
B. Specific Jurisdiction
BMW AG argues that specific jurisdiction does not exist because it does not have any
“jurisdictionally relevant contacts with Indiana,” and that it did not purposely avail itself of any
privilege or benefit associated with Indiana. [Filing No. 66 at 16.] BMW AG claims that Mr.
Hoelldobler’s declaration demonstrates that BMW AG does not regularly do or solicit business in
Indiana, engage in any other persistent course of conduct in Indiana, or derive a substantial revenue
or benefit from goods, materials, or services used, consumed, or rendered in Indiana. [Filing No.
66 at 17.] It further argues that Ms. Brown cannot establish that BMW AG purposely availed itself
of the privilege of doing business in Indiana because BMW AG does not do business or engage in
a persistent course of conduct in Indiana. [Filing No. 66 at 19.] The only connection Ms. Brown

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has made, BMW AG claims, is that BMW AG manufactured vehicles that were eventually sold in
the United States by dealers that are independently owned businesses. [Filing No. 66 at 19.]
Ms. Brown’s response, again, does not focus on whether specific jurisdiction exists. She
argues that the Court has personal jurisdiction over BMW AG because she was injured in Indiana
from a design defect from a vehicle manufactured by BMW AG, a business located outside of
Indiana that derives substantial revenue from goods consumed in Indiana. [Filing No. 82 at 7-8.]
She argues that “BMW AG knew with absolute certainty that automobiles and motorcycles it
designed and manufactured would wind up in Indiana.” [Filing No. 82 at 10.] Ms. Brown further
claims that it is “safe to say several hundred BMW vehicles make it to Indiana and several million
dollars make it from Indiana to BMW AG’s coffers in Munich,” because Indiana has five BMW
dealerships, one motorcycle dealership, and one MINI dealership. [Filing No. 82 at 10-11.] Lastly,
Ms. Brown asserts that each BMW dealership offers customers the option to go to Germany to
pick up their purchased vehicle, which shows “active involvement of BMW AG in the sale of cars
in Indiana.” [Filing No. 82 at 11.]
In reply, BMW AG reiterates many of its arguments and claims that Ms. Brown has failed
to demonstrate a prima facie case of personal jurisdiction. [Filing No. 85 at 1.] BMW AG argues
that Ms. Brown presents no evidence that BMW AG has sold any products to the Indiana
dealership where she purchased her vehicle and does not assert that the dealership is owned by
BMW AG. [Filing No. 85 at 4.] BMW AG points out that it does not sell products directly to
Indiana or to any of its dealerships, but that it sells vehicles to its distributer, BMW NA, which in
turn, sells those vehicles to independent dealerships across North America. [Filing No. 85 at 4.]
It also argues that personal jurisdiction does not exist simply because Indiana customers may
purchase a BMW vehicle by planning a trip to Germany through its website. [Filing No. 85 at 4-

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5.] BMW AG also argues that the evidence fails to show that there is “something more” than
simply placing a product into the stream of commerce with a mere suspicion that it might end up
in Indiana. [Filing No. 85 at 5-7.] Moreover, BMW AG claims that Ms. Brown has not proffered
any evidence to demonstrate that BMW AG has sufficient contacts to establish specific
jurisdiction. [Filing No. 85 at 7-8.]
For the Court to exercise specific jurisdiction, the defendant must have purposefully
availed itself of the privilege of conducting activities within the forum so that the defendant may
reasonably anticipate being haled into court there. Int’l. Shoe, 326 U.S. at 319 (citing Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985)). Due process is satisfied so long as the
defendant had “certain minimum contacts” with the forum state such that the “maintenance of the
suit does not offend ‘traditional notions of fair play and substantial justice.’” Advanced Tactical
Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 800-01 (7th Cir. 2014). The
relevant contacts are those that center on the relations among the defendant, the forum, and the
litigation. Id. (citations omitted). However, “[f]or a State to exercise jurisdiction consistent with
due process, the defendant’s suit-related conduct must create a substantial connection with the
forum State.” Id. Thus, the relation between the defendant and the forum “must arise out of
contacts that the ‘defendant himself ’ creates with the forum . . . .” Id. (original emphasis).
On the basis of the record before it, the Court cannot conclude that specific jurisdiction
exists. First, Ms. Brown does not specifically assert that BMW AG has sufficient minimum
contacts in Indiana or that it purposely availed itself of the benefits of Indiana. Rather, Ms. Brown
merely cites to Indiana Trial Rule 4.4(A)(1) and (3) and assumes that her unsubstantiated
allegations about BMW AG’s contacts with Indiana satisfy the provisions of the statute and
establish personal jurisdiction. Moreover, while Ms. Brown cites to LinkAmerica, 857 N.E.2d at

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978, acknowledging that, regardless of state law, due process must be met before a court can
exercise personal jurisdiction she makes no attempt to apply a due process analysis to this case.
Second, and even more compelling, Ms. Brown submitted little evidence to establish a
prima facie case of personal jurisdiction over BMW AG. When the Court does not hold an
evidentiary hearing to determine personal jurisdiction, 2 as is the case here, the plaintiff needs to
make out a prima facie case of personal jurisdiction. See Purdue, 338 F.3d at 782. Accordingly,
“[o]nce the defendant has submitted affidavits or other evidence in opposition to the exercise of
jurisdiction, the plaintiff must go beyond the pleadings and submit affirmative evidence supporting
the exercise of jurisdiction.” Id. at 782-83. BMW AG provided a declaration from its legal counsel
as evidence that no personal jurisdiction exists. Ms. Brown, in response, does not offer any
relevant evidence that supports personal jurisdiction. Rather, Ms. Brown submits BMW AG’s
2014 Annual Report and 2014 Financial Statement. These reports are insufficient to establish
specific personal jurisdiction because the reports make absolutely no connection between BMW
AG and Indiana. Within her response brief, Ms. Brown cites to several BMW websites to support
her allegations, but again those websites also make no connection between BMW AG and Indiana.
Moreover, Ms. Brown admits that she lacks information 3 to know how much BMW AG makes in
revenue from Indiana, but rather she assumes that BMW AG must be connected to Indiana because
it sells its vehicles to its North American distributor, BMW NA. However, she makes no
evidentiary connection between the Indiana dealerships and BMW AG beyond these allegations.
Therefore, Ms. Brown fails to satisfy her burden that personal jurisdiction exists over BMW AG.

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Neither party requested an evidentiary hearing on the instant motion.

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There is no record that Ms. Brown pursued jurisdictional discovery.
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Moreover, notably absent from either party’s initial brief is Seventh Circuit precedent that
would have been helpful for the Court’s review, particularly where stream of commerce is at the
heart of the argument. 4 Dehmlow v. Austin Fireworks, 963 F.2d 941, 947 (7th Cir. 1992) (finding
that personal jurisdiction is met where the defendant has “the intent or purpose to serve the market
in the forum State, which may be demonstrated by additional conduct of the defendant”); Giotis v.
Apollo of the Ozarks, Inc., 800 F.2d 660 (7th Cir. 1986) (finding personal jurisdiction exists over
a Missouri fireworks manufacturer which sold fireworks that caused personal injury in Wisconsin,
even though the manufacturer sold those fireworks to a Minnesota resident), cert. denied, 479 U.S.
1092 (1987); Nelson by Carson v. Park Industries, Inc., 717 F.2d 1120 (7th Cir. 1983) (permitting
Wisconsin courts to exercise personal jurisdiction over a Hong Kong flannel shirt manufacturer
whose product caused personal injury in Wisconsin), cert. denied, 465 U.S. 1024 (1984). The
sort of evidence presented in the foregoing cases is absent here.
Based on the foregoing analysis, the Court finds that Ms. Brown has not met her burden of
making a prima facie showing that the Court has personal jurisdiction over BMW AG.

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The Court notes that in its reply, BMW AG cites to Jennings v. AC Hydraulic A/S, 383 F.3d 546,
551 (7th Cir. 2004) and, in a footnote, to O’Neal v. Bumbo Int’l. Trust, 16 F.Supp.3d. 95 (S.D. Ind.
2014). BMW AG claims that Bumbo stands for the proposition that a foreign manufacturer
subjects itself to personal jurisdiction by selling a product via a nationwide distributorship, and
that the holding is contrary to law. [Filing No. 85 at 5-6.] BMW AG overstates the holding in
Bumbo. In fact, Bumbo acknowledges that Jennings rejected such broad interpretation of stream
of commerce. See Bumbo, 16 F.Supp.3d at 958. In Jennings, the plaintiff failed to establish
that personal jurisdiction existed over the defendant because the plaintiff did not provide any
evidence that the defendant’s products were ever sold in the forum state. Conversely, Bumbo
found that personal jurisdiction did exist because the plaintiff provided sufficient evidence to
show that the defendant manufacturer knew that its product would wind up in Indiana,
although it used a distributor to supply its product to different retailers throughout the
United States. Id. at 960 (emphasis added).
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IV.
CONCLUSION
For the reasons detailed herein, the Court GRANTS BMW AG’s Motion to Dismiss for
Lack of Personal Jurisdiction, [Filing No. 65], and DISMISSES Ms. Brown’s claims against
BMW AG WITHOUT PREJUDICE for lack of personal jurisdiction. No partial final judgment
shall issue at this time.

February 4, 2016
Date: _____________

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
Thomas Patrick Branigan
BOWMAN & BROOKE LLP
[e-mail]
Jeffrey T. Gorcyca
BOWMAN AND BROOKE, LLP
[e-mail]
Zlatina Georgieva
BOWMAN and BROOKE LLP
[e-mail]
David V. Scott, Sr.
DAVE SCOTT PLC
[e-mail]

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Blake N. Shelby
FROST BROWN TODD LLC
[e-mail]
Eric A. Riegner
FROST BROWN TODD LLC
[e-mail]
Kevin C. Schiferl
FROST BROWN TODD LLC
[e-mail]
Chris Allan Moeller
KEN NUNN LAW OFFICE
[e-mail]
Jeffrey J. Shaw
KEN NUNN LAW OFFICE
[e-mail]
Michael W. Phelps
KEN NUNN LAW OFFICE
[e-mail]
Dean J. Arnold
KEN NUNN LAW OFFICE
[e-mail]

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