KEARNEY v. BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT et al
OPINION. Signed by Judge Madeline Cox Arleo on 3/31/2021. (ams, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVE KEARNEY, et al.,
BAYERISCHE MOTOREN WERKE
AKTIENGESELLSCHAFT, et al.,
Civil Action No. 17-13544
ARLEO, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on Defendant Bayerische Motoren Werke
Aktiengesellschaf’s (“BMW AG”) Motion to Dismiss the Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(2), ECF No. 124. Plaintiffs Dave Kearney (“Kearney”), James Barr, Tony
Trosclair, Ronald Rothrock, Courtney Loughery, and Kara Finch (collectively “Plaintiffs”) oppose
the Motion. ECF No. 125. For the reasons explained below, the Motion is GRANTED.
FACTUAL BACKGROUND 1
This putative class action arises out of Plaintiffs’ purchase of BMW vehicles with defective
sunroofs (the “Vehicles”). See generally CCAC. Plaintiffs are consumers who each reside outside
The Court discussed the background of this action at length in a prior opinion by Senior United States District Judge
William H. Walls (“Judge Walls”). See Kearney v. Bayerische Motoren Werke Aktiengesellschaft, No. 17-13544,
2018 WL 4144683 (D.N.J. Aug. 29, 2018) (“Kearney I”). Only those facts necessary to resolve the instant Motion
are recited herein.
These facts are drawn from Plaintiffs’ Consolidated Class Action Complaint (“CCAC”), ECF No. 22, and the
declarations submitted alongside the parties’ briefing on the Motion, see Declaration of Ronny Löwa (“Löwa Decl.”),
ECF No. 124.1; Declaration of Lindsey H. Taylor (“Taylor Decl.”), ECF No. 126; Supplemental Declaration of Ronny
Löwa (“Suppl. Löwa Decl.”), ECF No. 130.1; Declaration of Eric Y. Kizirian (“Kizirian Decl.”), ECF No. 130.2.
Factual disputes are noted.
of New Jersey and purchased their respective Vehicle outside of New Jersey but within the United
States. Id. ¶¶ 24, 26, 32, 34, 36, 38. BMW AG is a publicly traded German stock company with
its principal place of business in Munich, Germany. Löwa Decl. ¶ 6. Defendant BMW of North
America, LLC (“BMW NA” and together with BMW AG, “Defendants”) is a Delaware limited
liability company with its principal place of business in New Jersey and is a wholly owned indirect
subsidiary of BMW AG, separated by five levels of intermediate entities. Id. ¶¶ 22-24; see also
Taylor Decl., Ex. B at 192.
Plaintiffs generally allege that the Vehicles contain defective sunroofs that “suddenly and
unexpectedly explode,” resulting in “shattered glass . . . shower[ing] over the driver and
passengers.” CCAC ¶ 3. Despite having knowledge of this defect, Defendants allegedly concealed
its existence in at least three general instances. First, Defendants omitted references to the defect
in advertisements, owner’s manuals, and warranty pamphlets.
Id. ¶¶ 40, 82-83.
Defendants “upsold” Plaintiffs by encouraging them to purchase luxury packages that include a
sunroof, without disclosing the defect. Id. ¶¶ 16, 52. Third, Defendants have disingenuously
stated that “exploding sunroofs are caused by a rock or some other foreign object,” rather than an
inherent defect, and have denied warranty coverage on that basis. Id. ¶¶ 13, 55. Plaintiffs,
however, do not allege that they personally were denied warranty coverage. See id. ¶ 81 (alleging
that Plaintiffs “had no knowledge of the defect . . . during the applicable express warranty
BMW AG designs and manufactures BMW vehicles in Germany for worldwide
distribution. Löwa Decl. ¶¶ 12-13. It is not qualified to do business in the United States, id. ¶ 7,
has no agent for service of process in the United States, id. ¶ 8, pays no taxes in the United States,
id. ¶ 9, does not own or use any real property within the United States, id. ¶¶ 10-11, and maintains
no employees within the United States, id. ¶ 19. BMW AG also does not sell, advertise, market,
distribute, or warrant vehicles to dealers or consumers within the United States. Id. ¶¶ 12, 14-17.
Rather, BMW AG sells its vehicles to BMW NA, which takes possession of the automobiles in
Germany and serves as the exclusive distributor of BMW vehicles within the United States. Id.
¶¶ 27, 29. BMW NA then markets, advertises, warrants, and sells BMW automobiles to United
States consumers. Id. ¶ 27.
Beyond their manufacturer-distributor relationship, BMW AG and BMW NA interact in
several other ways. Employees from BMW NA regularly communicate with employees in parallel
departments at BMW AG and collaborate on issues such as regulation, product analysis, and
warranty coverage. 2 Similarly, the two entities share information related to technical service issues
through a computerized system that collects data from all markets worldwide. See Yeldham Dep.
Tr. 141:5-22. BMW AG also evidently has some influence on personnel decisions impacting
BMW NA. 3
The two entities have collaborated on issues related to shattering sunroofs as well. For
example, BMW AG employees solicited and received field reports, photographs, vehicle parts,
and other information related to the sunroofs from employees of BMW NA. See Yeldham Dep.
Tr. 88:11-89:10; Taylor Decl. Ex. N. On at least one occasion, in response to a BMW NA
Several representatives of BMW NA testified to this effect, including product engineer Chabhinath Ramkissoon
(“Ramkissoon”), Meredith Schank (“Schank”) of the warranty department, and Mark Yeldham (“Yeldham”) in
product analysis. See Ramkissoon Dep. Tr. 55:18-56:1, Taylor Decl. Ex. J; Schank Dep. Tr. 48:11-52:18, Taylor
Decl. Ex. K; Yeldham Dep. Tr. 23:15-24:20, Taylor Decl. Ex. C.
For example, a March 13, 2019 article from WardsAuto reported that management in Munich created “bonus and
performance scorecards” for employees in New Jersey. See Taylor Decl. Ex. D. Some employees from BMW AG
also travelled to New Jersey for two- or three-year rotations to gain experience, during which time they became BMW
NA employees, were paid by BMW NA, and retained the option to either return to Germany and BMW AG or to
remain employed by BMW NA in the United States. Yeldham Dep. Tr. 27:5-30:3, 34:16-19; Suppl. Löwa Decl. ¶ 10.
Plaintiff also contends that the Chief Executive Officer of BMW NA is an employee of BMW AG, though Defendant
disputes this fact. Compare Taylor Decl. Ex. F (website printout identifying current CEO of BMW NA, Bernhard
Kuhnt, as “Head of Region (Americas) at [BMW AG]”), with Suppl. Löwa Decl. ¶¶ 7-8 (averring that the CEO of
BMW NA is employed and paid solely by BMW NA and serves no concurrent role with BMW AG).
employee’s email inquiry, a BMW AG employee advised on issues related to warranty coverage
for shattered sunroofs, stating that claims should be denied when “caused by stone impact” or
where the glass was “pre-damaged.” Taylor Decl. Ex. N. The BMW NA employee testified that
other colleagues at BMW NA asked similar questions about warranty coverage. Ramkissoon Dep
Tr. 161:25-162:12. 4 Finally, BMW NA represented BMW AG’s interests in investigations by
United States regulatory bodies related to shattering sunroofs. 5
Kearney initiated this action on December 22, 2017. ECF No. 1. On March 13, 2018,
Kearney filed an Amended Complaint adding two additional plaintiffs and asserting twelve claims
against Defendants. See Am. Compl., ECF No. 7. On August 29, 2018, Judge Walls dismissed
Plaintiffs’ claims for breach of express warranty and unjust enrichment, along with two statutory
consumer protection claims. See Kearney I, 2018 WL 4144683. After this case was consolidated
with an action alleging substantially similar violations related to defective sunroofs in BMW
vehicles, see ECF No. 21, Plaintiffs filed the CCAC on October 23, 2018.
The twenty-three count CCAC alleges claims for common law fraud, negligent
misrepresentation, breach of implied warranty, and consumer protection violations.
¶¶ 106-499. 6 Plaintiffs seek to represent a nationwide class of consumers who purchased the
Ultimately, the decision on whether repairs are covered by warranty is made “exclusively by BMW NA and/or the
local dealerships at which customers present their vehicle for repair.” Suppl. Löwa Decl. ¶ 16.
Specifically, BMW NA representative Derek Rinehardt (“Rinehardt”) testified that BMW NA represented BMW
AG and other BMW entities in connection with investigations by the National Highway Traffic Safety Administration
(“NHTSA”) and the United States Senate. Rinehardt Dep Tr. 44:12-47:5; 55:9-56:6, Taylor Decl. Ex. A. Rinehardt
further testified that the Vice President of Engineering for BMW NA has a direct line of reporting to BMW AG’s
regulatory department. Id. 17:12-25.
The CCAC reasserts the claims previously dismissed by Judge Walls. Plaintiffs concede that these counts are pled
solely to preserve appellate rights and indicate that they will not prosecute them in light of the Court’s prior ruling.
CCAC § VIII n.41. The CCAC also asserts claims on behalf of former Plaintiff Robin Schoene (“Schoene”). The
parties stipulated to dismissal of Schoene’s claims without prejudice, which the Court so-ordered on May 13, 2019.
ECF No. 40.
Vehicles, along with sub-classes of consumers who purchased the Vehicles in California, Texas,
Maryland, Illinois, Louisiana, Pennsylvania, and South Carolina. Id. ¶ 93. Plaintiffs effected
foreign service upon BMW AG on November 7, 2019. See ECF No. 67. BMW AG now moves
to dismiss the CCAC for lack of personal jurisdiction. ECF No. 124.
To survive a Rule 12(b)(2) motion to dismiss, Plaintiffs bear the burden of proving that
personal jurisdiction is proper. IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 257 (3d Cir. 1998).
“[I]n determining whether personal jurisdiction exists, the Court looks beyond the pleadings to all
relevant evidence and construes all disputed facts in favor of the plaintiff.” MaxLite, Inc. v. ATG
Elecs., Inc., 193 F. Supp. 3d 371, 382 (D.N.J. 2016). Once a motion is made, and “plaintiff’s
allegations are challenged by affidavits or other evidence, ‘plaintiff must respond with actual
proofs, not mere allegations.’” UniMaven, Inc. v. Texas TR, LLC, No. 17-12008, 2018 WL
2244695, at *2 (D.N.J. Apr. 25, 2018) (quoting Patterson v. FBI, 893 F.2d 595, 604 (3d Cir. 1990)).
Plaintiffs maintain that the Court may exercise jurisdiction over BMW AG because (1) the
contacts of BMW NA can be imputed to its parent company under an alter ego or agency theory, 7
or (2) this Court has specific personal jurisdiction over BMW AG because this action arises out of
BMW AG’s direct interactions with its subsidiary in New Jersey. The Court addresses each
contention in turn and ultimately concludes that Plaintiffs have failed to present a persuasive basis
The parties do not dispute this Court’s jurisdiction over BMW NA.
Alter Ego / Agency Theory
Plaintiffs first contend that the contacts of New Jersey-based BMW NA should be imputed
to BMW AG because BMW NA acts as BMW AG’s agent or alter ego. The Court disagrees.
A plaintiff generally must demonstrate independent personal jurisdiction over each
defendant. Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San Francisco Cnty., 137 S. Ct. 1773,
1783 (2017). However, the activities of a subsidiary may be imputed to its parent company where
the “subsidiary is merely the agent of a parent corporation, or if the parent corporation otherwise
‘controls’ the subsidiary.” Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 781 (3d Cir. 2018)
(citations omitted). To assess whether a subsidiary’s contacts should be imputed, the Court
considers factors including:
(1) whether the subsidiary is doing business in the forum that would
otherwise be performed by the parent; (2) whether there is common
ownership of the parent and a subsidiary; (3) whether there is
financial dependency; and (4) whether the parent interferes with the
subsidiary’s personnel, disregards the corporate formalities, and/or
controls the subsidiary’s marketing and operational policies.
Transp. Ins. Co. v. Am. Harvest Baking Co., Inc., No. 15-663, 2015 WL 9049273, at *4 (D.N.J.
Dec. 16, 2015) (citing Dewey v. Volkswagen AG, 558 F. Supp. 2d 505, 513 (D.N.J. 2008)).
Despite the common ownership between BMW NA and BMW AG, the Court concludes
that the remaining factors weigh against imputation. BMW NA and BMW AG perform separate
core functions: BMW AG manufacturers vehicles while BMW NA markets, sells, and distributes
vehicles throughout the United States. Löwa Decl. ¶¶ 12-13, 27, 29. BMW AG does not dictate
the day-to-day operations of BMW NA’s marketing and distribution activities. Id. ¶ 25; Suppl.
Löwa Decl. ¶ 13. BMW NA is thus, at most, “the corporate equivalent of an independent
contractor, rather than a servant.” Seltzer v. I.C. Optics, Ltd., 339 F. Supp. 2d 601, 610 (D.N.J.
2004) (holding that subsidiary-distributor was not agent of parent-manufacturer where parent
“required [subsidiary] to perform within certain parameters, [but] did not control the day-to-day
time, manner, and method of executing the work”). 8 There is also no evidence that BMW NA is
financially dependent on BMW AG or that corporate formalities are disregarded. BMW AG’s
representative avers that “BMW AG does not handle the financial affairs of BMW NA” or
“maintain BMW NA’s corporate books, records, or bank accounts.” Löwa Decl. ¶ 28.
As evidence of BMW AG’s alleged control over its subsidiary, Plaintiff points to (1) BMW
AG’s influence over personnel decisions at BMW NA; (2) the regular collaboration and
information sharing between employees of each entity on “issues related to product investigations,
warranty coverage, replacement parts, and regulation;” (3) solicitations from BMW AG for data
concerning shattered sunroofs; and (4) intercompany communications related to warranty
coverage for shattered sunroofs. See Pl. Opp. at 4-7. But while these facts may show that BMW
AG itself has contacts with New Jersey, 9 they do not suggest that BMW AG’s activities “deviate
from the normal amount of control a parent has over its subsidiary” or “reach the point of
dominance.” Seltzer, 339 F. Supp. 2d at 611. 10 Notably, nothing in the record indicates that BMW
The evidence suggests that BMW NA may act as BMW AG’s agent for one discrete purpose—appearances before
United States regulators. Rinehardt Dep Tr. 44:12-47:5; 55:9-56:6. Even assuming BMW NA acts as BMW AG’s
agent for this limited purpose, that cannot provide a basis to impute all of BMW NA’s jurisdictional contacts to BMW
AG. Critically, Plaintiffs’ claims do not arise out of BMW NA’s interactions with the NHTSA or the U.S. Senate.
For instance, Plaintiffs do not allege that BMW NA made any actionable representations or omissions in connection
with investigations related to shattering sunroofs. See CCAC ¶¶ 59, 61 (describing NHTSA and Senate
As discussed below, jurisdiction is nonetheless improper because Plaintiffs’ claims do not arise out of or relate to
BMW AG’s alleged contacts with New Jersey.
For example, Plaintiffs’ contested claim that some employees serve concurrent roles with both entities is insufficient
because even a “significant degree of overlap” in personnel does not establish an alter ego relationship where, as here,
there is no evidence that any “dual office hold[er]” working for the subsidiary has acted against the subsidiary’s
interest, but in favor of the parent. Seltzer, 339 F. Supp. 3d at 610-11; see also United States v. Bestfoods, 524 U.S.
51, 69 (1998) (noting presumption that “directors are wearing their ‘subsidiary hats’ and not their ‘parent hats’ when
acting for the subsidiary”). Further, the use of shared data systems and other means to collect data from subsidiaries
is an “ubiquitous practice in the modern business landscape” and the “[u]tilization of such systems does not establish
alter ego jurisdiction.” In re Chocolate Confectionary Antitrust Litig., 641 F. Supp. 2d 367, 394-95 (M.D. Pa. 2009).
Finally, Plaintiffs’ evidence of business interactions between parent and subsidiary fail to show the day-to-day control
or “dominance” needed to establish an alter ego relationship. The fact that BMW NA sometimes solicits and receives
input from BMW AG related to warranties is not inconsistent with BMW NA’s role as the sole warrantor of BMW
AG exercised influence over BMW NA’s marketing, sale, or distribution activities, creating a clear
line of demarcation between parent-manufacturer and subsidiary-distributor. See Löwa Decl. ¶ 27.
Consequently, the Court declines to impute BMW NA’s jurisdictional contacts to BMW AG. 11
BMW AG’s Contacts with New Jersey
Plaintiffs next argue that the Court may assert personal jurisdiction based on BMW AG’s
direct contacts with New Jersey. Again, the Court disagrees.
A plaintiff seeking to invoke jurisdiction must demonstrate that the defendant has
constitutionally sufficient contacts with New Jersey, 12 either generally or specifically with regards
to this action. O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007). Plaintiffs
do not contend the Court has general jurisdiction over BMW AG, see Pl. Opp. at 9 n.5, and so the
Court addresses only specific jurisdiction.
A prima facie case of specific jurisdiction is established when a non-resident defendant has
“purposefully directed” its activities at the forum and the plaintiff’s injury “arise[s] out of or
relate[s] to at least one of those activities.” O’Connor, 496 F.3d at 317 (citations and quotations
omitted). If Plaintiffs present a prima facie case of personal jurisdiction, then BMW AG must
“present a compelling case that the presence of some other considerations would render
vehicles and decisionmaker with regards to warranty coverage. See Löwa Decl. ¶¶ 16, 27; Suppl. Löwa Decl. ¶ 16;
see also Schank Dep Tr. 72:6-73:3 (testifying that BMW AG does not pay for warranty claims and cannot access the
BMW NA’s payment platform for warranty claims).
Plaintiffs’ reliance on Dewey v. Volkswagen AG, 558 F. Supp. 2d 505, is misplaced. There, the court found that a
United States subsidiary-distributor of a German car manufacturer acted as the parent’s agent—for the purpose of
service of process—because the plaintiff presented evidence showing that the parent directed “every phase of [the
subsidiary’s] operation, including [its] marketing, distribution[,] sales[, and] . . . warranties” and “determine[ed] on a
day-to-day basis exactly how [the subsidiary was] to operate.” Id. at 514. No similar evidence of day-to-day control
is present here.
“A federal court sitting in New Jersey has jurisdiction over parties to the extent provided under New Jersey state
law,” which “provides for jurisdiction coextensive with the due process requirements of the United States
Constitution.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004) (citations omitted). “Thus, parties
who have constitutionally sufficient ‘minimum contacts’ with New Jersey are subject to suit there.” Id.
jurisdiction unreasonable.” Id. at 324 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477
Plaintiffs contend that BMW AG purposefully directed contacts with New Jersey through
its regular interactions with BMW NA and that Plaintiffs’ claims arise out of those interactions.
The Court need not determine whether BMW AG’s relations with its subsidiary were purposefully
directed at New Jersey because Plaintiffs’ claims do not “arise out of or relate to” any of the
contacts alleged by Plaintiffs.
To demonstrate that their claims arise out of BMW AG’s contacts, Plaintiffs must first
establish “the existence of some minimal link between contacts and claims” by showing that the
contacts are a “but-for” cause of the underlying claim. Id. at 322. They must then show that the
exercise of jurisdiction is proportional to the “benefits and protection” defendant received from
the forum by initiating the contacts. Id. at 322-23 (“The causal connection can be somewhat looser
than the tort concept of proximate causation, but it must nonetheless be intimate enough to keep
the quid pro quo proportional and personal jurisdiction reasonably foreseeable.”) (citation
The Supreme Court recently held in Ford Motor Co. v. Montana Eighth Judicial District Court, that a strict causal
nexus between contacts and claim is not necessary to support personal jurisdiction where a plaintiff’s claims share a
sufficiently strong affiliation with—and thus “relate to”—a defendant’s systematic contacts with the forum state. No.
19-368, 2021 WL 1132515, at *5 (U.S. Mar. 25, 2021). Applying this test, the Court determined that Minnesota and
Montana courts could exercise jurisdiction over Ford for claims alleging an “in-state injury” caused by “defective
products that Ford extensively promoted, sold, and serviced in Montana and Minnesota,” even though the particular
cars at issue were sold by Ford outside of the forum states, before being resold by consumers to the in-state
plaintiffs. Id. at *9. The Supreme Court further observed that the argument for jurisdiction would be weaker in the
state of first sale, as a suit brought there would involve “all out-of-state parties, an out-of-state accident, and out-ofstate injuries.” Id. at *8.
BMW AG conducts no marketing or sales activities in New Jersey or anywhere in the United States, Löwa Decl.
¶¶ 16, 27, and as in the hypothetical posed by the Supreme Court, no Plaintiff resides, purchased a vehicle, or suffered
injury in New Jersey, CCAC ¶¶ 24, 26, 32, 34, 36, 38. The strong affiliation between contacts and claim present in
Ford Motor is therefore wholly lacking here.
While the precise elements of Plaintiffs’ claims differ, they each arise out of the same core
allegations. Defendants concealed the existence of defective sunroofs by (a) omitting references
to the defect in advertisements, owner’s manuals, and warranty pamphlets, CCAC ¶¶ 40, 82-83,
(b) encouraging Plaintiffs to purchase luxury packages that include a sunroof, without disclosing
the defect, id. ¶¶ 16, 52, and (c) denying warranty coverage on the basis that “exploding sunroofs
are caused by a rock or some other foreign object,” rather than a defect, id. ¶¶ 13, 55. Plaintiffs
each purchased a Vehicle in reliance on Defendants’ omission. Id. ¶ 41. Plaintiffs then suffered
injuries stemming from shattering glass, temporary loss of the Vehicles’ use, and/or possession of
a defective Vehicle. Id. ¶¶ 24-27, 32-39. 14
Plaintiffs proffer evidence of two set of contacts arguably relevant to Defendants’ alleged
joint efforts to conceal the defect, but neither provides the relationship demanded by O’Connor.
First, Plaintiffs point to evidence that BMW AG solicited and received information from BMW
NA employees in connection with an investigation into defective sunroofs. See Yeldham Dep. Tr.
88:11-89:10; Taylor Decl. Ex. N. But Defendants’ internal efforts to investigate sunroofs do not
show BMW AG’s involvement in consumer-facing statements concerning the Vehicles. BMW
AG states that BMW NA is exclusively responsible for the marketing and sale of BMW vehicles
in the United States and serves as the exclusive warrantor of BMW vehicles in the United States,
and Plaintiffs fail to provide evidence to the contrary. See Löwa Decl. ¶¶ 16, 27; Suppl. Löwa
Decl. ¶¶ 15-16.
Specific personal jurisdiction must typically be assessed on a claim-by-claim basis. See Remick v. Manfredy, 238
F.3d 248, 255 (3d Cir. 2001). However, a claim-specific analysis is unnecessary for “factually overlapping claims.”
O’Connor, 496 F.3d at 317 n.3. Here, the claims asserted by the CCAC overlap partially, but not entirely. For
instance, Plaintiffs need not prove reliance on an omission to prevail on their implied warranty claims. See Kearney I,
2018 WL 4144683, at *15 (“[T]he implied warranty that comes with the purchase of a car is simply a guarantee that
[it] will operate in a safe condition and substantially free of defects and, therefore, where a car can provide safe,
reliable transportation, it is generally considered merchantable.”) (citation and quotations omitted). As Plaintiffs have
failed to demonstrate a sufficient connection to any aspect of this litigation, the Court nonetheless declines to undertake
a claim-by claim analysis.
Second, Plaintiffs point out that BMW AG responded to inquiries by BMW NA concerning
the scope of warranty coverage for shattered sunroofs, including a statement that warranty claims
seeking sunroof repairs should be denied when damage was “caused by stone impact” or where
the glass was “pre-damaged” at some point before it ultimately shattered. Taylor Decl. Ex. N; see
also Ramkissoon Dep Tr. 161:25-162:12. Fatally, however, Plaintiffs fail to allege that they
personally sought warranty coverage for broken sunroofs. See CCAC ¶ 81; Kearney I, 2018 WL
4144683, at *15 (dismissing breach of express warranty claim because Plaintiffs did not allege
that they presented their Vehicles for repair). Plaintiffs therefore could not have relied on any
omissions or representations related to a denial of warranty coverage, and any related contacts by
BMW AG consequently lack the requisite nexus with Plaintiffs’ claims. 15
Plaintiffs next argue that jurisdiction is proper because every vehicle manufactured by
BMW AG and sold in the United States passes through New Jersey, via BMW NA. BMW AG
does not import vehicles into New Jersey, but instead sells its vehicles to BMW NA in Germany.
Löwa Decl. ¶ 29. Despite this lack of direct contact, Plaintiffs contend that BMW AG targeted
New Jersey because it “knew . . . every BMW vehicle sold in the U.S. . . . would be sold through
New Jersey” and “established BMW NA as its subsidiary in New Jersey so that BMW AG could
sell vehicles in the U.S.” Pl. Opp. at 10. In essence, Plaintiffs articulate a “stream of commerce”
theory of jurisdiction that has been rejected by the Third Circuit. See Shuker, 885 F.3d at 780
(citing Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 108-13 (1987) (plurality
Even if BMW AG’s statements to BMW NA in the warranty context influenced BMW NA’s consumer-facing
activities nationwide, any causal “link between contacts and claims” is too tenuous to render jurisdiction in New Jersey
reasonably foreseeable. See O’Connor, 496 F.3d at 322-23.
“The stream-of-commerce theory contends, essentially, that specific personal jurisdiction exists over a non-resident
defendant when that defendant has injected its goods into the forum state indirectly via the so-called stream of
The “foreseeability” that a product placed in the stream of commerce will arrive in the
forum state is an insufficient basis for jurisdiction absent some other “act by which the defendant
purposefully avails itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws.” Id. (citation omitted). Jurisdiction also cannot
be established through a foreign manufacture’s decision to contract with an in-state distributor,
Bristol-Myers Squibb, 137 S. Ct. at 1783, or a manufacturer’s intention to “targe[t] the national
market,” Oticon, Inc. v. Sebotek Hearing Sys., LLC, 865 F. Supp. 2d 501, 513 (D.N.J. 2011) (citing
J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011)), which is all Plaintiffs allege.
Plaintiffs therefore may not rely on BMW NA’s distribution of vehicles from New Jersey to
establish jurisdiction over BMW AG. 17
Finally, Plaintiffs cannot rely on the location of Plaintiffs’ respective injuries, which
Plaintiffs do not allege occurred in New Jersey. See CCAC ¶¶ 24-27, 32-39; see IMO Indus., 155
F.3d at 265-66 (permitting jurisdiction over an intentional tort claim where “[t]he plaintiff felt the
brunt of the harm in the forum” and “[t]he defendant expressly aimed his tortious conduct at the
Plaintiffs have thus failed to establish a prima facie case of personal jurisdiction over BMW
AG. The Court need not assess whether “some other considerations would render jurisdiction
unreasonable.” O’Connor, 496 F.3d at 324.
commerce, rendering it foreseeable that one of the defendant’s goods could cause injury in the forum state.” Shuker,
885 F.3d at 780 (citation omitted).
Moreover, “the connection between [a foreign manufacturer’s] allegedly manufacturing [a product] for distribution
to its New Jersey subsidiary and the injury sustained by [out-of state residents using the product] across the Country
is not ‘intimate enough to keep the quid pro quo proportional.’” Oliver v. Funai Corp., Inc., No. 14-4532, 2015 WL
9304541, at *10 (D.N.J. Dec. 21, 2015) (quoting O’Connor, 496 F.3d at 321).
Plaintiffs alternatively request leave to conduct limited discovery of BMW AG to uncover
additional facts to support personal jurisdiction. The Court concludes that jurisdictional discovery
is inappropriate at this stage in the litigation.
To obtain jurisdictional discovery, Plaintiffs must “present factual allegations that
suggest ‘with reasonable particularity’ the possible existence of the requisite ‘contacts between
[the party] and the forum state.’” Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623
F.3d 147, 157 (3d Cir. 2010) (quoting Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 455 (3d
Cir. 2003)). The CCAC falls short of this threshold. Indeed, the only allegations connecting BMW
AG to New Jersey are general assertions that “Defendants” collectively “conduct a substantial
amount of business in this District,” “have marketed, advertised, sold, and/or leased the . . .
Vehicles within this District,” and “made decisions related to advertisement, marketing, sales,
warranties, and recalls of vehicles” from BMW NA’s headquarters in New Jersey. CCAC ¶ 23.
These contentions fail to particularly plead the possible existence of jurisdictional contacts
between BMW AG and New Jersey, as Due Process demands an independent showing of
jurisdiction over each defendant. Bristol-Myers Squibb Co., 137 S. Ct. 1773 at 1783. 18
Moreover, Plaintiffs have had the benefit of discovery from BMW NA for over two years
and have supported their claim of jurisdiction with deposition testimony, emails, and other
evidence discussing the relationship between BMW NA and its parent. The Court is unpersuaded
that further discovery from BMW AG would serve a valuable purpose. See, e.g., Visual Sec.
Concepts, Inc. v. KTV, Inc., 102 F. Supp. 2d 601, 609 n.12 (E.D. Pa. 2000) (denying jurisdictional
The conclusory allegation that BMW NA and its MINI division “acted as authorized agents, representatives,
servants, employees and/or alter egos of BMW AG,” CCAC ¶ 46, is also insufficient.
discovery where “case ha[d] been pending for many months, and the plaintiff ha[d] engaged in
substantial discovery directed at least in part towards establishing personal jurisdiction.”); Rose v.
Cont’l Aktiengesellschaft (AG), No. 99-3794, 2001 WL 236738, at *4 (E.D. Pa. Mar. 2, 2001)
For the reasons stated above, BMW AG’s Motion to Dismiss, ECF No. 124, is
GRANTED. Plaintiffs’ Consolidated Class Action Complaint is DISMISSED as to BMW AG
for lack of personal jurisdiction. An appropriate order follows.
/s/ Madeline Cox Arleo
Hon. Madeline Cox Arleo
UNITED STATES DISTRICT JUDGE
Date: March 31, 2021
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