HUTTON v. LIFT-ALL, INC. et al

Filing 153

MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 09/30/2016; that Hydra-Tech Defendants' Renewed Motion to Dismiss (ECF No. 120 ) is GRANTED, based on lack of personal jurisdiction, and they are DISMISSED WITHOUT PREJUDICE. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DANA LEAH PUCKETT HUTTON, as
Executrix of the Estate of ROBERT
JAMES HUTTON, JR.,

)
)
)
)
Plaintiff,
)
)
)
v.
)
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HYDRA-TECH, INC., JERRY L.
)
HUDSON, AMERICAN ASSURANCE
)
CORPORATION, ALTEC, INC., ALTEC )
LLC, ALTEC INDUSTRIES, INC., ALTEC )
NUECO, LLC, HYCO INTERNATIONAL )
INC. n/k/a WEBER-HYDRAULIK, INC., )
HYCO CANADA, ULC, n/k/a WEBER
)
HYDRAULIC HYCO CANADA, HYCO )
ALABAMA, LLC and SUPERIOR
)
AERIAL AND EQUIPMENT
)
REPAIR, INC.,
)
)
Defendants.
)

1:14-cv-888

MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Dana Leah Hutton (“Ms. Hutton”), as the executrix of the estate of Robert James
Hutton, Jr. (“Mr. Hutton”), brought this action for wrongful death against several defendants,
including Jerry L. Hudson and Hydra-Tech, Inc. (collectively as “Hydra-Tech Defendants”).
Hydra-Tech Defendants previously filed a motion to dismiss for lack of personal jurisdiction
under Rule 12(b)(2) and for failure to state a claim under Rule 12(b)(6), (ECF No. 54 at 1–2),
and this Court authorized limited discovery and deferred consideration of that motion. (ECF

No. 89 at 9–10.) The parties have completed limited discovery, and before the Court is HydraTech Defendants’ Renewed Motion to Dismiss pursuant to Rules 12(b)(2) and 12(b)(6). (ECF
No. 120.) For the reasons that follow, the Court grants Hydra-Tech Defendants’ motion to
the extent it seeks dismissal for lack of personal jurisdiction.1
I.

STANDARD OF REVIEW
When a nonresident defendant challenges personal jurisdiction under Rule 12(b)(2) of

the Federal Rules of Civil Procedure, the jurisdictional issue is for the judge to resolve with
the plaintiff eventually having to bear the ultimate burden of proving jurisdiction by a
preponderance of the evidence. See Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir. 2016);
Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). The Fourth
Circuit has observed that the plaintiff’s burden of proof “varies according to the [procedural]
posture of [the] case and the evidence that has been presented to the court.” Grayson, 816 F.3d
at 268. Ordinarily, where the court decides a pretrial personal jurisdiction motion without
conducting an evidentiary hearing—relying instead on motion papers, supporting legal
memoranda, and allegations in the complaint—the plaintiff only has to make a prima facie
showing of personal jurisdiction. Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 276
(4th Cir. 2009).
However, an “‘evidentiary hearing’ does not automatically involve or require live
testimony” but “requires only that the district court afford the parties a fair opportunity to

1

This Court lacks personal jurisdiction over Hydra-Tech Defendants and, therefore, does not address
Hydra-Tech Defendants’ remaining arguments for dismissal under Rule 12(b)(6) for failure to state a
claim.

2

present both the relevant jurisdictional evidence and their legal arguments.” Grayson, 816 F.3d
at 268. Where the parties have engaged in discovery on the issue of personal jurisdiction and
have submitted evidence beyond the pleadings, as in this case, the court “must hold the
plaintiff to its burden of proving facts, by a preponderance of the evidence, that demonstrate
the court’s personal jurisdiction over the defendant.” Id.; see also Hamburg Sudamerikanische
Dampfschiffahrts-Gesellschaft, KG v. Texport, Inc., 954 F. Supp. 2d 415, 419–20 (D.S.C. 2013)
(holding the plaintiff to a preponderance of the evidence standard because the parties had
engaged in jurisdictional discovery); AARP v. Am. Family Prepaid Legal Corp., 604 F. Supp. 2d
785, 797 (M.D.N.C. 2009) (same). “[O]nly when a material jurisdictional fact is disputed and
that fact overlaps with a fact that needs to be resolved on the merits by a jury might a court
defer its legal ruling on personal jurisdiction to let the jury find the overlapping fact.” Grayson,
816 F.3d at 267.
II.

BACKROUND
Hydra-Tech, Inc. (“Hydra-Tech”) was an Indiana company that was formed in 1981.

(ECF No. 122-1 ¶ 2.) It was in the business of building and selling aerial lift trucks. (Id. ¶ 4.)
Jerry L. Hudson (“Mr. Hudson”) served as Hydra-Tech’s president and was a shareholder until
its dissolution in 2009. (Id. ¶¶ 2–3.) Throughout its existence, Hydra-Tech was located in
Fort Wayne, Indiana, along with its operations, property, employees, and bank accounts. (Id.
¶ 6.)
Over the years, Hydra-Tech produced over 9500 units, selling them throughout the
United States, primarily to utilities and tree-trimming companies. (ECF No. 122-2 at 116:12–
17; ECF No. 122-1 ¶ 7.) Hydra-Tech referred potential customers to one of its distributors if
3

one was in the area of the potential customer. (See ECF No. 127-2 at 46:16–47:6.) If not,
Hydra-Tech would take the order. (See id.) Customers could go to Hydra-Tech’s website for
information on its products and for Hydra-Tech’s phone number; however, no orders could
be placed from the website. (ECF No. 122-1 ¶ 12; ECF No. 127-2 at 44:11–12, 45:7–12.) All
of Hydra-Tech’s units were sold “F.O.B. Fort Wayne, Indiana, which meant that the customer
took title to and risk of loss of the goods at Hydra-Tech’s Fort Wayne facility.” (ECF No.
122-1 ¶ 8.)
From 1982 to 1987, MAP Enterprises (“MAP”), a North Carolina company, was
Hydra-Tech’s distributor in North Carolina and six other states. (ECF No. 122-3 at 10:10–
11, 20:19–25; ECF No. 122-1 ¶ 10; ECF No. 127-3 at 21:10–15.) A total of four Hydra-Tech
units were sold to MAP, and MAP sold at least one of the four units to an end customer
located in North Carolina. (ECF No. 127-3 at 16:17–19, 17:2–7; ECF No. 122-3 at 23:12–
24:4.) MAP and Hydra-Tech’s relationship ended in 1987, but MAP placed an order with
Hydra-Tech for a repair part in 1990. (See ECF No. 122-3 at 10:10–11; 127-2 at 126:16–21,
128:4–8.)
At some point in the late 1990s or early 2000s, Morse Manufacturing (“Morse”), a
company located in Massachusetts, asked Hydra-Tech for the right to sell Hydra-Tech units
in North Carolina as well as other states. (ECF No. 122-2 at 37:8–11; ECF No. 122-4 Resp.
No. 5.) Hydra-Tech agreed to Morse’s request. (ECF No. 122-4 Resp. No. 5.) It is unclear
when Morse and Hydra-Tech terminated their relationship. (ECF No. 122-2 at 37:12–38:4.)
However, in 2001, Hydra-Tech sold a unit directly to Surry-Yadkin, EMC, located in North
Carolina because Hydra-Tech did not have a North Carolina distributor at that time. (ECF
4

No. 127-2 at 195:14–196:10.) In addition, Hydra-Tech provided quotes to two North Carolina
cities in 2002 and 2003. (ECF No. 122-4 Resp. 10.)
In March 2007, Hydra-Tech sold the unit at issue in this case to Davey Tree Expert
Company (“Davey Tree”), which was headquartered in Ohio. (ECF No. 122-1 ¶¶ 13–14.)
Davey Tree arranged for a common carrier to pick the unit up at Hydra-Tech’s facility in Fort
Wayne and deliver it to Greensboro, North Carolina. (Id. ¶¶ 15–16.) Hydra-Tech then
completed a bill of lading to that effect, and the unit was sold F.O.B. Fort Wayne. (Id. ¶¶ 16–
17.) About a year and a half after the sale to Davey Tree, Mr. Hudson approached Altec, LLC
about selling Hydra-Tech. (ECF No. 127-2 at 71:20–72:1.) Mr. Hudson sold all of HydraTech’s assets to Altec, LLC and dissolved the company in 2009. (ECF No. 122-1 ¶ 18.)
Around four years later, the incident giving rise to this action occurred. Mr. Hutton, a
tree trimmer and Davey Tree employee, was operating an aerial device when it allegedly
malfunctioned, causing Mr. Hutton to fall thirty-five feet to his death. (ECF No. ¶¶ 14, 25,
28.) Ms. Hutton’s Amended Complaint alleges, among other things, that “Hydra-Tech was
responsible for installing, designing, manufacturing and/or constructing” the aerial device and
that “Mr. Hudson was the principal owner, sole shareholder and officer of Hydra-Tech.”
(Id. ¶¶ 16, 37.) Ms. Hutton asserts claims of negligence, unfair and deceptive trade practices,
and concealment of insurance against Hydra-Tech and, against Mr. Hudson, she asserts claims
for piercing the corporate veil, concealment of insurance, and unfair and deceptive trade
practices. (Id. at 7, 9, 15, 17.)
Hydra-Tech Defendants moved to dismiss the action against them under Rule 12(b)(2),
contending that this Court lacked personal jurisdiction over them. (ECF No. 54 at 2.) They
5

further moved to dismiss all claims, except for the negligence claim against Hydra-Tech, under
Rule 12(b)(6) for failure to state a claim. (See id.) In response, Ms. Hutton requested limited
discovery and urged the Court to defer ruling on the motion to dismiss. (ECF No. 66 at 3–
4.) The Court held a hearing, and subsequently granted Ms. Hutton’s request for limited
discovery and dismissed Hydra-Tech’s motion to dismiss without prejudice to it being refiled
and supplemented following the completion of discovery. 2 Hydra-Tech Defendants now
renew their challenge to this Court’s exercise of personal jurisdiction over them.
III.

PERSONAL JURISDICTION
“The Due Process Clause of the Fourteenth Amendment constrains a State’s authority

to bind a nonresident defendant to a judgment of its courts.” Walden v. Fiore, 134 S. Ct. 1115,
1121 (2014). A federal district court can exercise personal jurisdiction over a nonresident
defendant only if “(1) such jurisdiction is authorized by the long-arm statute of the state in
which the district court sits; and (2) application of the relevant long-arm statute is consistent
with the Due Process Clause of the Fourteenth Amendment.” Universal Leather, LLC v. Koro
AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014). North Carolina’s long-arm statute “permits the
exercise of personal jurisdiction . . . to the outer limits allowable under federal due process.”
Id.; Dillon v. Numismatic Funding Corp., 231 S.E.2d 629, 630–31 (N.C. 1977) (holding that, by
enacting N.C. Gen. Stat. § 1-75.4(1)(d), the North Carolina General Assembly “intended to
make available to the North Carolina courts the full jurisdictional powers permissible under

2

In this Order, the Court also deferred consideration of Altec Defendants’ Motion for Summary
Judgment and granted Ms. Hutton additional time for discovery. (ECF No. 89 at 10.)

6

federal due process”). The two-prong test therefore “merges into [a] single question,” allowing
the court to proceed directly to the constitutional analysis. Universal Leather, 773 F.3d at 558–
59; see ESAB Grp., Inc. v. Zurich Ins. PLC, 685 F.3d 376, 391 (4th Cir. 2012).
Under the Due Process Clause of the Fourteenth Amendment, two paths permit a
court to exercise personal jurisdiction over a nonresident defendant. Universal Leather, 773
F.3d at 559. One path is general jurisdiction, “which permits a court to assert jurisdiction over
a defendant based on a forum connection unrelated to the underlying suit.” Walden, 134 S.
Ct. at 1121 n.6. The other path is specific jurisdiction, which “depends on an ‘affiliatio[n]
between the forum and the underlying controversy.’” Id. (alteration in original) (quoting
Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)).
The United States Supreme Court has explained that a court can exercise general
jurisdiction over a nonresident corporation only when the corporation’s “affiliations with the
State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.”
Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014) (quoting Goodyear, 131 S. Ct. at 2851). Also
called “all-purpose” jurisdiction, the Court noted that “only a limited set of affiliations with a
forum will render a defendant amenable to all-purpose jurisdiction there.” Id. For a
corporation, “the place of incorporation and principal place of business are paradigm bases
for general jurisdiction.” Id. (quotation omitted). However, the Supreme Court has “not
foreclose[d] the possibility that in an exceptional case, a corporation’s operations in a forum
other than its formal place of incorporation or principal place of business may be so substantial
and of such a nature as to render the corporation at home in that State.” Id. at 761 n.19
(citation omitted). “[T]he threshold level of minimum contacts to confer general jurisdiction
7

is significantly higher than for specific jurisdiction.” ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d
617, 623 (4th Cir. 1997).
As for specific jurisdiction, it requires “that the relevant conduct have such a
connection with the forum state that it is fair for the defendant to defend itself in that state.”
CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 292 n.15 (4th Cir. 2009);
Universal Leather, 773 F.3d at 559 (stating that the touchstone of the specific jurisdictional
inquiry is fairness). A court may exercise specific jurisdiction when “the defendant has
purposefully directed [its] activities at residents of the forum and the litigation results from
alleged injuries that arise out of or relate to those activities.” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 472 (1985) (quotations and citation omitted). The Fourth Circuit employs a threeprong test to determine whether the exercise of specific jurisdiction comports with the
requirements of due process: “(1) the extent to which the defendant purposefully availed itself
of the privilege of conducting activities in the forum state; (2) whether the plaintiff’s claims
[arose] out of those activities; and (3) whether the exercise of personal jurisdiction is
constitutionally reasonable.” Universal Leather, 773 F.3d at 559 (alteration in original) (quoting
Tire Eng’g & Distrib., LLC v. Shandong Linglong Rubber Co., 682 F.3d 292, 302 (4th Cir. 2012)).
Only if the court finds that the plaintiff has satisfied the purposeful availment prong does the
court need to consider the remaining prongs of the specific jurisdiction test. Consulting Eng’rs,
561 F.3d at 278.
IV.

DISCUSSION
Ms. Hutton argues that Hydra-Tech is subject to both general and specific jurisdiction

in North Carolina. However, as to general jurisdiction, Hydra-Tech is not “essentially at
8

home” in North Carolina. It was incorporated in Indiana, and from 1981 until its dissolution
in 2009, it was located there. Hydra-Tech has never had any property, bank accounts, or
employees in North Carolina. (ECF No. 122-1 ¶¶ 10, 11.) Nor was it ever registered to do
business in North Carolina. (Id. ¶ 10.) Ms. Hutton does not advance any exceptional
circumstance where Hydra-Tech could be deemed “essentially at home” in North Carolina.
Thus, the Court lacks general jurisdiction over Hydra-Tech and proceeds to examine whether
the requirements of specific jurisdiction have been met.
A. Specific Jurisdiction
1. Purposeful Availment
The first requirement of specific jurisdiction is “purposeful availment.”

The

“‘purposeful availment’ requirement ensures that a defendant will not be haled into a
jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts” or because of
the unilateral actions of another. Burger King, 471 U.S. at 475. It is rooted in the concept of
minimum contacts and contemplates whether “the defendant’s conduct and connection with
the forum [s]tate are such that he should reasonably anticipate being haled into court there.”
Universal Leather, 773 F.3d at 559 (alteration in original) (quoting Fed. Ins. Co. v. Lake Shore Inc.,
886 F.2d 654, 658 (4th Cir. 1989)). When a defendant has created a “substantial connection”
to the forum state, “then it has purposefully availed itself of the privilege of conducting
business there.” Wright v. Zacky & Sons Poultry, LLC, 105 F. Supp. 3d 531, 538 (M.D.N.C.
2015) (citing ESAB Grp., 126 F.3d at 625 (explaining that “contacts related to the cause of
action must create a ‘substantial connection’ with the forum state, although this connection
need not be as extensive as is necessary for general jurisdiction” (citation omitted))).
9

Ms. Hutton relies on the following to show that Hydra-Tech purposefully availed itself
of conducting business in North Carolina:
1. Hydra-Tech’s relationship with MAP from 1982-1987, which generated four
sales of Hydra-Tech units to MAP, the sale of a repair part to MAP in 1990,
and that Hydra-Tech provided MAP with materials for advertising in North
Carolina;
2. Hydra-Tech’s relationship with Morse, a company located in Massachusetts
in the late 1990s or early 2000s, where Morse asked and Hydra-Tech agreed
to allow Morse to advertise and sell its units in North Carolina as well as
other states;
3. Hydra-Tech maintained a website, which included Hydra-Tech’s phone
number and information on its products;
4. Hydra-Tech’s sale to Surry-Yadkin, EMC, located in North Carolina, after
Surry-Yadkin, EMC requested a quote from Hydra-Tech;
5. Hydra-Tech provided quotes to two North Carolina cities in 2002 and 2003;
6. Hydra-Tech completed a bill of lading for the shipment of the subject aerial
device from Indiana to North Carolina; and
7. Around June 2008, a warranty claim was made on the aerial device.
(See ECF No. 126 at 2–3, 8-10.)
Although the evidence demonstrates that Hydra-Tech had some contacts with North
Carolina, those contacts appear minimal, isolated or unsolicited, rather than purposefully
directed to North Carolina. See Sonoco Prods. Co. v. ACE INA Ins., 877 F. Supp. 2d 398, 405
(D.S.C. 2012) (“Minimal, isolated or unsolicited contacts, however, do not give rise to the
required purposeful connection between an out of state defendant and the forum state.”). As
noted earlier, Hydra-Tech maintained no offices, operations, bank accounts, or employees in
North Carolina and was never registered to do business in North Carolina. Although HydraTech did have two North Carolina distributors, only one of them, MAP, was located in North
Carolina. The record shows that MAP advertised in North Carolina and sold only four of
Hydra-Tech’s aerial devices and a repair part, all of which occurred more than two decades

10

before the accident in this case. Further, it was Morse, a Massachusetts company, that initiated
contact with Hydra-Tech regarding advertising and selling Hydra-Tech’s products in North
Carolina, and there is no evidence that any sale to Morse ever took place.
While Hydra-Tech’s website provided product information and included Hydra-Tech’s
phone number, the website did not accept any orders and, despite Ms. Hutton’s conclusory
statement that it was available to North Carolina residents, there is no evidence that the
website targeted or directed any business to North Carolina. See Woods Int’l, Inc. v. McRoy, 436
F. Supp. 2d 744, 750–51 (M.D.N.C. 2006) (explaining that defendant’s passive website, which
did not accept orders but provided information on its products and gave contact information,
was insufficient to subject defendant to specific jurisdiction in North Carolina). The sale to
Surry-Yadkin, EMC in North Carolina occurred more than ten years before the accident. See
Burger King, 471 U.S. at 475 (noting that attenuated contacts are insufficient to establish
purposeful availment). Hydra-Tech did not initiate contact with Surry-County Yadkin, EMC.
Nor did it initiate contact with two other North Carolina cities to which it provided quotes.
It is thus significant that much of the evidence outlined above occurred through no conduct
initiated by Hydra-Tech and directed to North Carolina. Wright, 105 F. Supp. 3d at 538
(explaining that purposeful availment requires that “the connection to the forum ‘must arise
out of contacts that the defendant himself creates with the forum State’” (quoting Walden, 134
S. Ct. at 1122)); cf. CFA Inst., 551 F.3d at 295 n.17 (according “special weight” to the fact that
it was the defendant that initiated contact with the plaintiff in the forum).
As to the aerial unit at issue in this case, Hydra-Tech did complete a bill of lading
reflecting shipment of the aerial device to Davey Tree in North Carolina. However, this did
11

not involve targeting North Carolina in any way, as it was Davey Tree that initiated contact
with Hydra-Tech from Ohio and arranged to have the unit shipped to North Carolina. Ms.
Hutton has also failed to explain how the 2008 warranty claim on the aerial device sold to
Davey Tree has any connection to any activity allegedly directed at North Carolina by HydraTech.3
Ms. Hutton, nevertheless, maintains that she can establish “purposeful availment”
based on the stream of commerce theory. (ECF No. 126 at 10.) The stream of commerce
theory refers to “‘the movement of goods from manufacturers through distributors to
consumers,’ ending in the forum state.” Syngenta Crop Prot., LLC v. Willowood, LLC, 139 F.
Supp. 3d 722, 730 (M.D.N.C. 2015) (quoting J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780,
2788 (2011) (plurality opinion)).

The Supreme Court has stated that “[a] defendant’s

placement of goods into the stream of commerce ‘with the expectation that they will be
purchased by consumers within the forum State’ may indicate purposeful availment.” Nicastro,
131 S. Ct. at 2783 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298 (1980)).
However, the mere awareness that a product will sweep into the forum state is not enough;
there must be a “specific effort” on the part of the defendant to target the forum state.
Williams v. Romarm, 116 F. Supp. 3d 631, 640 (D. Md. 2015) (quoting Nicastro, 131 S. Ct. at
2792 (Breyer, J. concurring)); see also Butler v. Ford Motor Co., 724 F. Supp. 2d 575, 588 (D.S.C.

3

In fact, Mr. Hudson testified during his deposition that he assumed that the warranty repair took
place at Davey Tree’s facility in Kent, Ohio, (ECF No. 127-2 at 208:6–9), based on his review of the
invoice, (see ECF No. 127-4 at 43–44).

12

2010) (explaining that the stream of commerce theory “cannot supplant the requirement that
a defendant some way purposefully avail itself of forum state law”).
Ms. Hutton claims that Hydra-Tech “engaged in a regular course of sales in the State
of North Carolina from 1982 through 2008,” “permitted at least two distributors to advertise
and sell” in North Carolina, and “attended national trade shows . . . with knowledge that it
was possible to speak with and sell to interested customers in North Carolina.” (ECF No. 126
at 11.) The Court rejects Ms. Hutton’s argument that Hydra-Tech regularly made sales in
North Carolina from 1982 to 2008. As this Court has explained, Hydra-Tech’s contacts in
North Carolina were isolated and minimum. See Nicastro, 131 S. Ct. at 2792 (explaining that
there was no regular course or flow of sales in the forum in rejecting specific jurisdiction based
on stream of commerce); Burger King, 471 U.S. at 476 n.18 (noting that the “reasonable
foreseeability of litigation in the forum is substantially diminished” when acts are occasional
or isolated and thus create an attenuated affiliation with the forum); Eagle Coffee Co. v. Eagle
Coffee Int’l, Inc., No. L-09-2585, 2010 WL 481201, at *4 (D. Md. Feb. 4, 2010) (concluding that
seven sales over a twenty-five year period, although all occurring within the past two years,
cannot be considered anything more than isolated occurrences). The Court further rejects Ms.
Hutton’s assertion that “purposeful availment” exists merely because of Hydra-Tech’s
attendance at national trade shows, which took place outside of North Carolina, see Nicastro,
131 S. Ct. at 2786, 2791–92 (rejecting the argument that jurisdiction based on stream of
commerce existed because defendant had attended national conventions throughout the
country), or because of its website, see ALS Scan, Inc. v. Dig. Serv. Consultants, Inc., 293 F.3d 707,
715 (4th Cir. 2002) (explaining that defendant did not, through its website, “direct its electronic
13

activity specifically at any target in Maryland” and “did not manifest an intent to engage in a
business or some other interaction in Maryland”); Eagle Coffee Co., 2010 WL 481201, at *4
(explaining that defendant did not “purposefully direct[] its activities, electronic or otherwise”
to the forum state, as “nothing on [defendant’s] website suggests that it intended to target”
residents of the forum state “more than residents of any other state”).
None of the alleged activity on which Ms. Hutton relies for her stream of commerce
argument has anything to do with this case. See Windsor v. Spinner Indus. Co., 825 F. Supp. 2d
632, 639 (D. Md. 2011) (describing conduct of distributors and manufacturers who have no
connection to this case “miss[es] the substance of the jurisdictional inquiry, which is whether,
focusing upon the relationship between ‘the defendant, the forum, and the litigation,’ it is fair,
in light of the defendant’s contacts with that forum, to subject the defendant to suit there”
(quoting Nicastro, 131 S. Ct. at 2793)); see also Abraham v. Agusta, S.P.A., 968 F. Supp. 1403,
1411 (D. Nev. 1997) (noting that whether the defendant sold other products to Nevada
residents is irrelevant to the specific jurisdictional analysis, as it turns on the defendant’s
contacts in relation to the instant cause of action). The aerial device at issue in this case was
not sold into North Carolina. See Williams, 116 F. Supp. at 641 (“Where Plaintiffs have not
even shown that the firearm used in the shooting was sold into Maryland, the fortuity that the
firearm apparently found its way into Maryland is insufficient to establish minimum
contacts.”); Windsor, 825 F. Supp. 2d at 639 (explaining that defendant’s online activities are
immaterial because the plaintiffs did not purchase their bike on the internet). Nor did the
aerial device make it into North Carolina through any intentional conduct directed to North
Carolina by Hydra-Tech; rather, it was the unilateral activity of Davey Tree out of Ohio that
14

arranged for the aerial device, which was sold F.O.B. Fort Wayne, Indiana, to be taken to
North Carolina. See Soto v. Meadow Mills, Inc., No. 3:09cv292-HEH, 2009 WL 1873785, at *3
(E.D. Va. June 29, 2009) (declining to exercise jurisdiction over defendant that shipped goods
FOB North Carolina when those good were shipped to or through Virginia); see also Bay
Tobacco, LLC v. Bell Quality Tobacco Prods., LLC, 261 F. Supp. 2d 483, 494 (E.D. Va. 2003).
Thus, Ms. Hutton has failed to establish purposeful availment through the stream of
commerce theory.
Ms. Hutton next contends that she may establish purposeful availment through the
“conspiracy theory of jurisdiction.” (ECF No. 126 at 11.) A defendant can be held to have
availed itself of the privilege of conducting business in the forum state if a plaintiff establishes
a plausible claim: “(1) that a conspiracy existed; (2) that the . . . defendant[ ] participated in
the conspiracy; and (3) that a coconspirator’s activities in furtherance of the conspiracy had
sufficient contacts with [North Carolina] to subject that conspirator to jurisdiction in [North
Carolina].” BeoCare Grp. Inc. v. Morrissey, 124 F. Supp. 3d 696, 701–02 (W.D.N.C. 2015)
(alterations in original) (quoting Unspam Techs. Inc. v. Chernuk, 716 F.3d 322, 329 (4th Cir.
2013)). A plaintiff may not satisfy these elements by relying on bare allegations. Chernuk, 716
F.3d at 329. A plaintiff must plead these requirements with particularity. Id.
Ms. Hutton asserts that the Amended Complaint’s concealment of insurance and unfair
and deceptive trade practices claims allege that Hydra-Tech Defendants conspired to conceal
the existence of an insurance policy that Hydra-Tech had purchased as part of the assets sale
with Altec, LLC. (See ECF No. 126 at 12.) The Court disagrees. Nowhere in Ms. Hutton’s
Amended Complaint does she allege facts related to a conspiracy, and certainly not with any
15

level of particularity. (See ECF No. 18 ¶¶ 69–85.) Moreover, the evidence in the record does
not plausibly suggest that Hydra-Tech Defendants conspired with any Altec defendant to
conceal the insurance policy in this case. Mr. Hudson testified that he did not know of Mr.
Hutton’s death until he was served with legal documents in September 2014. (See ECF No.
122-2 at 157:15–19, 158:1–2.) By that time, the insurance policy had expired. (ECF No. 1221 ¶ 19 (“The policy period ran from 12/31/2008 to 12/31/2013.).) Ms. Hutton has failed to
point to any evidence to the contrary and thus she cannot demonstrate that a plausible
conspiracy existed between Hydra-Tech Defendants and any Altec defendant.
Ms. Hutton has failed to establish that Hydra-Tech purposefully availed itself of the
privilege of doing business in North Carolina to an extent sufficient to justify specific, personal
jurisdiction over it in this case.
2. Whether Ms. Hutton’s claims arise out of Hydra-Tech’s Contacts with the
Forum
Even if Ms. Hutton could establish purposeful availment, she must still establish that
her claims arise out of Hydra-Tech’s contact with the forum. To satisfy this component of
specific jurisdiction, her claims must arise out of activities directed at the forum state. Tire
Eng’g & Distrib., 682 F.3d at 303. “Where activity in the forum state is ‘the genesis of [the]
dispute,’ this prong is easily satisfied.” Id. (alteration in original) (quoting CFA Inst., 551 F.3d
at 295).
Hydra-Tech’s alleged contacts with North Carolina neither relate to, nor give rise to,
Ms. Hutton’s claims. As earlier noted, the aerial device at issue in this case was ordered by
Davey Tree in Ohio who arranged for it to be shipped to North Carolina. There is no nexus

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between any of Hydra-Tech’s alleged contacts with North Carolina and Ms. Hutton’s claims
in this case. Ms. Hutton, therefore, cannot establish the second part of the test.
B. Alter Ego
Finally, the Court notes that Ms. Hutton does not argue that this Court has personal
jurisdiction over Mr. Hudson based on any individual contacts he might have with North
Carolina. Rather, Ms. Hutton attempts to establish personal jurisdiction over him based on
the alter ego theory of jurisdiction. (See ECF No. 126 at 16.) This theory would ordinarily
allow a court to exercise jurisdiction over a party not otherwise subject to personal jurisdiction
when that party is an alter ego of a corporation that is subject to personal jurisdiction in the
court. See Newport News Holdings Corp. v. Virtual City Vision, Inc., 650 F.3d 423, 433 (4th Cir.
2011) (quoting Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640, 653 & n.18 (5th Cir. 2002))
Because this Court lacks personal jurisdiction over Hydra-Tech, it necessarily follows that it
may not exercise personal jurisdiction over Mr. Hudson as Hydra-Tech’s purported alter ego.
V.

CONCLUSION
Ms. Hutton has failed to establish by a preponderance of the evidence that this Court

has either general or specific jurisdiction over Hydra-Tech Defendants. The Court, therefore,
does not address Hydra-Tech Defendants’ remaining arguments for dismissal under Rule
12(b)(6) for failure to state a claim.

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For the reasons outlined herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Hydra-Tech Defendants’ Renewed Motion to
Dismiss (ECF No. 120) is GRANTED, based on lack of personal jurisdiction, and they are
DISMISSED WITHOUT PREJUDICE.
This, the 30th day of September, 2016.

/s/ Loretta C. Biggs
United States District Judge

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