Estate of Mark Rosado-Rosario et al v. Falken Tire Corporation et al

Filing 69

OPINION AND ORDER re 37 Motion to Dismiss for Lack of Jurisdiction and Motion to Dismiss for Failure to State a Claim. The Court finds that although the claims against P.T. Sumi are not time-barred, the Court lacks personal jurisdiction over P.T. Sumi. Accordingly, the Court GRANTS P.T. Sumi's motion to dismiss, (Docket No. 37). Plaintiff's claims against P.T. Sumi (Docket No. 9), are DISMISSED WITH PREJUDICE. There being no just reason for delay, partial judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 06/17/2015. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ESTATE OF MARK ROSADO ROSARIO,
et al.,
Plaintiffs,
v.

Civil No. 14-1505 (FAB)

FALKEN TIRE CORP., et al.,
Defendants.

OPINION AND ORDER1
BESOSA, District Judge.
Before the Court is defendant P.T. Sumi Rubber Indonesia’s
motion to dismiss (Docket No. 37) the Estate of Mark J. Rosado
Rosario’s second amended complaint (Docket No. 9) which the Estate
of Mark J. Rosado Rosario opposes (Docket No. 45).

For the reasons

discussed below, the motion to dismiss is GRANTED.

The second

amended complaint as to defendant P.T. Sumi Rubber Indonesia
(Docket No. 9) is DISMISSED.

1

Rachel L. Hampton, a second-year student at the University of
Michigan Law School, assisted in the preparation of Opinion and
Order.

Civil No. 14-1505 (FAB)
I.

2

BACKGROUND2
On July 29, 2013, in Rio Grande, Puerto Rico, Mark J. Rosado

Rosario (“Rosado”) was driving in a Toyota Camry equipped with
Falken Tires when the tires failed, causing him to crash into a
pole.

(Docket No. 9 at ¶¶ 24, 27.)

Rosado had purchased the

faulty tires from a Pep Boys store located in Rio Grande, Puerto
Rico.

(Docket No. 45 at ¶ 17.)

Rosado was killed.

As a result of the accident,

Id. at ¶ 18.

On June 25, 2014, almost one year after the accident, Rosado’s
minor children, MJRC and KNRC, and his wife Milagros Carrasquillo
Santiago (“Carrasquillo”), constituting the Estate of Mark J.
Rosado Rosario (“Estate of Rosado”) (collectively, “plaintiffs”),
filed this lawsuit pursuant to article 1802 of the Puerto Rico
Civil Code, P.R. Laws Ann. tit. 31, § 5141, against Falken Tire
Corporation (“FTC”), Sumitomo Rubber Industries, Ltd. (“Sumitomo”),
Dunlop Falken Tires, Ltd. (“Dunlop”), and other unnamed defendants
(collectively, “defendants”).

(Docket No. 1.)

On July 2, 2014, plaintiffs filed an amended complaint,3
(Docket No. 6), and on August 6, 2014, they filed a second amended

2

The Court sketches a general factual composite at the outset and
incorporates additional facts as is necessary.

3

The amended complaint modified the original complaint to add a
security restriction to the minors’ names. (Docket No. 6.)

Civil No. 14-1505 (FAB)

3

complaint, in which they added as a defendant P.T. Sumi Rubber
Indonesia (“P.T. Sumi”), an entity organized under the laws of
Indonesia with its principle place of business and “nerve center”
located in Indonesia (Docket No. 9 at pp. 16-17).

Plaintiffs

allege that P.T. Sumi “researched, developed, designed, tested,
manufactured, inspected, labeled, distributed, marketed, promoted,
sold, and otherwise released into the stream of commerce the Falken
Tires” that caused Rosado’s fatal crash.

(Docket No. 9 at pp.

16-17).
On November 12, 2014, P.T. Sumi moved for dismissal on two
grounds: (1) statute of limitations, and (2) lack of personal
jurisdiction.

(Docket No. 37.)

opposed the motion to dismiss.

On December 23, 2014, plaintiffs
(Docket No. 45.)

On January 9,

2015, P.T. Sumi replied to plaintiffs’ opposition (Docket No. 48),
to which the plaintiffs filed a sur-reply on January 13, 2015
(Docket No. 51).
II.

LEGAL STANDARD
Defendant P.T. Sumi moves to dismiss pursuant to Federal Rules

of Civil Procedure 12(b)(1), (2), and (6).

(Docket No. 37).

First, pursuant to Rules 12(b)(1) and 12(b)(6), P.T. Sumi argues
that the complaint should be dismissed because the applicable
statute of limitations expired before plaintiffs added P.T. Sumi to
the complaint.

Id. at pp. 1-2.

Motions to dismiss brought

Civil No. 14-1505 (FAB)

4

pursuant to Rule 12(b)(1) are subject to a similar standard as
those brought pursuant to Rule 12(b)(6) in that a court must take
all of plaintiff’s allegations as true and view them in the light
most favorable to the plaintiff. Torres Maysonet v. Drillex, S.E.,
229 F. Supp. 2d 105, 107 (D.P.R. 2002); see also Negron-Gaztambide
v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994).

In so far as

the defendant is moving under Rule 12(b)(1), the parties may attach
documents and exhibits and the Court may review them.

Gonzalez v.

United States, 284 F.3d 281, 288 (1st Cir. 2002), as corrected (May
8, 2002).
Second, pursuant to Rule 12(b)(2), P.T. Sumi argues that
dismissal

is

warranted

jurisdiction over it.

because

this

Court

(Docket No. 37 at p. 2.)

lacks

personal

Plaintiff bears

the burden of showing that jurisdiction exists over the defendant.
Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290
F.3d 42, 50 (1st Cir. 2002).

When considering a motion to dismiss

pursuant to Rule 12(b)(2), a court may choose among several methods
for determining whether a plaintiff has met its burden, including
the “prima facie” standard, the “preponderance-of-the-evidence”
standard, or the “likelihood” standard.

Id. at 50-51.

When a district court considers a motion to dismiss for lack
of personal jurisdiction without holding an evidentiary hearing,
the prima facie standard governs. United States v. Swiss Am. Bank,

Civil No. 14-1505 (FAB)

5

Ltd., 274 F.3d 610, 618 (1st Cir. 2001).

The prima facie standard

requires a plaintiff to demonstrate the existence of jurisdiction
under

both

the

Constitution.

forum’s

Id.

long-arm

statute

and

the

federal

To do this, it must provide affirmative proof

by going beyond the pleadings and by attaching supplementary
filings, such as affidavits.

Id.; Ticketmaster-New York, Inc. v.

Alioto, 26 F.3d 201, 203 (1st Cir. 1994).

In conducting its

analysis, a court accepts supported proffers of evidence by the
plaintiff.
review

Swiss Am. Bank, 274 F.3d at 618.

facts

put

contradicted.

forward

by

the

defendant

A court may also
if

they

are

not

Daynard, 290 F.3d at 51.

III. DISCUSSION
Plaintiffs contend that P.T. Sumi is liable for, inter alia,
manufacturing the Falken Tires that caused Rosado’s car crash and
his resulting death.

(Docket No. 9 at ¶¶ 10-28.)

P.T. Sumi seeks

dismissal of plaintiff’s claims on two grounds:

(1) statute of

limitations, and (2) lack of personal jurisdiction.
37.)

(Docket No.

The Court will address each argument in turn.
A.

Statute of Limitations
As an initial matter, when jurisdiction is based on the

diversity

of

citizenship,

substantive law.

federal

courts

will

apply

state

Erie R. Co. v. Tompkins, 304 U.S. 64, 91-92

(1938); see also Hanna v. Plumer, 380 U.S. 460, 466 (1965).

The

Civil No. 14-1505 (FAB)

6

statute of limitations is substantive law, so the law of the forum
state - here, Puerto Rico - controls.

See, e.g., Alejandro-Ortiz

v. P.R. Elec. Power Auth. (PREPA), 756 F.3d 23, 27 (1st Cir. 2014).
In this case, plaintiffs are bringing a diversity product liability
tort action pursuant to article 1802 of the Civil Code, P.R. Laws
Ann. tit. 31, § 5141.4

The statute of limitations for article 1802

claims is one year from the time the aggrieved party has knowledge.
P.R. Laws Ann. tit. 31, § 5298; Kaiser v. Armstrong World Indus.,
Inc., 872 F.2d 512, 515 (1st Cir. 1989).

Knowledge is defined as

notice of the injury and of the person who caused it.

Torres v.

E.I. Dupont De Nemours & Co., 219 F.3d 13, 18 (1st Cir. 2000).
P.T. Sumi maintains that the applicable one-year statute
of limitations bars plaintiffs’ claims because plaintiffs did not
name P.T. Sumi as a defendant until the filing of its second
amended complaint on August 6, 2014, which was eight days after the
putative limitations period had expired. (Docket No. 37.) Because
the statute of limitations functions differently for minors, the
Court will first discuss the defense as it pertains to the minor
plaintiffs, MJRC and KNRC, and then turn to its application to
plaintiff Carrasquillo.

4

The parties do not contest the choice of law in this matter.
Docket Nos. 37, 45.

See

Civil No. 14-1505 (FAB)
1.

7

MJRC and KNRC’s Claims
Plaintiffs contend that MJRC and KNRC are minors and

that the statute of limitations has not run against them.
No. 45 at p. 3.)

The Court agrees.

(Docket

In Puerto Rico, the statute of

limitations clock does not begin to tick against minors until they
turn twenty-one, Santana-Concepcion v. Centro Medico Del Turabo,
Inc., 768 F.3d 5, 11 (1st Cir. 2014); P.R. Laws Ann. tit 32, §
254(1), even if the minors are represented by a parent, De Jesus v.
Chardon, No. 0-84-533, 1985 WL 301252, at *308 (P.R. Mar. 19,
1985).

This provision extends to causes of action inherited while

still under legal age.

De Jesus, 1985 WL 301252, at *308.

MJRC and KNRC are minors, (Docket No. 9

Here,

at ¶¶ 7, 8), so the

statute of limitations clock has not yet been triggered against
them.

MJRC and KNRC’s own causes of action as well as the actions

inherited from their father, Rosado, were thus timely brought
against P.T. Sumi.
Consequently, P.T. Sumi’s motion to dismiss the
complaint as time-barred pursuant to Rules 12(b)(1) and 12(b)(6),
in so far as it relates to minor plaintiffs MJRC and KNRC, is
DENIED.
2.

Carrasquillo’s Claims
P.T.

Sumi

additionally

asserts

its

statute

of

limitations defense against the non-minor plaintiff, Carrasquillo,

Civil No. 14-1505 (FAB)

8

for whom it argues no tolling provision applies.

Puerto Rico law

provides that the statute of limitations period is one year for
claims pursuant to article 1802.

P.R. Laws Ann. tit. 31, § 5298;

Rodriguez-Suris v. Montesinos, 123 F.3d 10, 13 (1st Cir. 1997).
The statute of limitations starts to run once the injured party
knew or should have known of (1) the injury;5 and (2) the person
who caused it.

Rodriguez v. Suzuki Motor Corp., 570 F.3d 402, 406

(1st Cir. 2009); see also Torres, 219 F.3d at 18.
The parties do not dispute the date of plaintiff’s
notice as to the injury: July 29, 2013, the day of Rosado’s fatal
accident.

Instead,

the

parties

disagree

about

the

date

of

plaintiff’s knowledge as to the author of the injury.
Knowledge of the author of the injury can be found
when: (1) the plaintiff has actual knowledge of the defendant’s
involvement,

or

(2)

with

the

exercise

of

due

diligence,

plaintiff should know of the defendant’s involvement.
Lugo, 312 F.3d 1, 4 (1st Cir. 2002).

the

Espada v.

The concept of deemed

knowledge is essentially parlance for the discovery rule, which
stands

5

for

the

proposition

that

“[t]he

one-year

[statute

of

A plaintiff acquires notice of the injury if there are “‘some
outward or physical signs through which the aggrieved party may
become aware and realize that [s]he has suffered an injurious
aftereffect.’”
Espada v. Lugo, 312 F.3d 1, 3 (1st Cir. 2002)
(quoting Kaiser, 872 F.2d at 516).

Civil No. 14-1505 (FAB)

9

limitations] does not begin to run until the plaintiff possesses,
or with due diligence would possess, information sufficient to
permit suit.”

Alejandro-Ortiz, 756 F.3d at 27.

The plaintiff

bears the burden of establishing that she lacked the necessary or
imputed knowledge before filing her claim.

Espada, 312 F.3d at 4.

The standard for evaluating what a reasonable plaintiff should have
known is an objective one.

Donahue v. United States, 634 F.3d 615,

624 (1st Cir. 2011).
P.T. Sumi first contends that Carrasquillo’s claims
against

it

are

time-barred

because

Carrasquillo

had

actual

knowledge of P.T. Sumi’s involvement on the day of the accident,
July 29, 2013, yet she only made P.T. Sumi a party to the suit in
the second amended complaint on August 6, 2014, eight days past the
expiration of the one-year statute of limitations.

(Docket No. 37

at pp. 9-10.)
In opposition, Carrasquillo argues that it was not
until after August 6, 2013, that she acquired actual knowledge of
the likely identity of P.T. Sumi because, among other reasons,
Rosado’s Toyota Camry was impounded until after August 6, 2013, and
thus she was unable to make an investigation into the tire numbers
prior to that day.

(Docket No. 45 pp. 5-7.)

By filing her second

amended complaint on August 6, 2014, within the year from August 6,
2013, she argues that her causes of action against P.T. Sumi are

Civil No. 14-1505 (FAB)
not time-barred.

10

Id. at p. 7.

At this stage, the Court takes as

true her allegations as to when she gained actual knowledge.

See

Estate of Alicano Ayala v. Philip Morris, Inc., 263 F. Supp. 2d
311, 316 (D.P.R. 2003).
P.T. Sumi secondly contends that Carrasquillo, with
the exercise of due diligence, should or could have known of P.T.
Sumi’s involvement on the day of the accident, July 29, 2013.
(Docket No. 37 at p. 9.)

P.T. Sumi argues that Carrasquillo could

have acted with due diligence by conducting an internet search of
the tire Identification Number on the National Highway Traffic
Safety Administration (“NHTSA”) website.

Id. at pp. 9-10.

P.T.

Sumi asserts that had she conducted the internet search, she would
have identified P.T. Sumi as of July 29, 2013, the day of the

Civil No. 14-1505 (FAB)

11

accident, or at least have been timely (earlier than eight days
after the accident).6

Id.

In opposition, Carrasquillo argues that she could
not have gained knowledge of P.T. Sumi’s involvement sooner than
eight days after the death of her husband by the exercise of due
diligence.

(Docket No 45 at p. 7.)

To support her argument,

Carrasquillo contends that she lacked the knowledge required to
decipher the tire code and the online instructions do not clearly
explain that the “DOT code contains a code that identifies the
manufacturer.” Id. at p. 6. Carrasquillo additionally argues that
she

could

not

have

found

P.T.

Sumi

earlier

because

any

investigation as to the DOT numbers contained on the Falken Tire
had to take place well after August 6, 2013, once Rosado’s Toyota
Camry was released by the police.

6

Id. at pp. 6-7.

While she did

The parties additionally quibble over the significance of an
email that was sent to plaintiff’s counsel by defendant’s counsel
on February 5, 2014, naming P.T. Sumi as the manufacturer of the
Falken tires. (See Docket Nos. 48, 51.) P.T. Sumi argues that
Carrasquillo’s attorneys were made aware of P.T. Sumi’s involvement
as manufacturer of the Falken brand tires through the email, but
failed to include P.T. Sumi in their original complaint on June 25,
2014.
(Docket No. 48 at p. 10.)
This email, however, is not
helpful to the defendant’s position. If anything, it shows that
plaintiffs were diligently trying to identify the person who caused
the accident. Moreover, if February 5, 2014, is taken as the date
of plaintiffs knowledge of P.T. Sumi’s identity, as the defendant
argues, then Carrasquillo’s causes of action are not time-barred
because the second amended complaint was filed on August 6, 2014,
(Docket No. 9), which would be within one year of the February 5,
2014, email.

Civil No. 14-1505 (FAB)

12

have the purchase receipt of the Falken Tires from the Pep Boys
store, Carrasquillo contends that this receipt did not make any
mention of P.T. Sumi.

Id.7

The Court finds that the record indicates that
Carrasquillo did not sit on her claims, but that she instead acted
with the amount of diligence expected of a reasonable person.

She

filed her claim within a year and eight days of her husband’s
deathly accident.

Contra Estate of Castro Martinez v. Philip

Morris Inc., Civ. No. 02-2171 (HL), 2004 WL 870677, at *3 (D.P.R.
Mar. 30, 2004) (holding that a wait of more than four years to
bring suit for smoking related health conditions was unreasonable
because due diligence would have informed plaintiffs of numerous
suits by state governments years prior to filing suit). Whether or
not

Carrasquillo’s

lack

of

instruction

as

to

the

tire

code

establishes her inability to gain knowledge with due diligence, the
fact remains that Rosado’s car was not released from police custody
until after August 6, 2013.

For at least eight days after her

husband’s accident, Carrasquillo did not have the tires to look up
their code numbers, and thus due diligence on her part would not

7

To support her argument, Carrasquillo attaches to her opposition
to the motion to dismiss multiple documents, including Exhibit 1,
the Unsworn Statement Under Penalty of Perjury of Milagros
Carrasquillo, and Exhibit 3, the purchase receipt of the Falken
Tire bought by Rosado at the Rio Grande Pep Boys’ store that
contains no indication of P.T. Sumi. (Docket No. 45).

Civil No. 14-1505 (FAB)

13

have allowed her to gain knowledge of P.T. Sumi’s identity during
this time.

See Attallah v. United States, 955 F.2d 776, 780 (1st

Cir.

(finding

1992)

appellants

did

diligence

could

criminal

a

not

delayed

know,

have

involvement

nor

known,
until

accrual
in

of
the

the
the
time

warranted
exercise

because

of

reasonable

appellee-customs
of

their

the

agents’

indictment).

Furthermore, the receipt from Pep Boys, which made no indication of
P.T. Sumi, would not have allowed Carrasquillo to learn of P.T.
Sumi sooner.

Contra Alejandro-Ortiz, 756 F.3d at 29 (discussing

plaintiff’s failure to exercise due diligence when “a mere glance
at her electricity bill would have allowed [her] . . . to discover
that the owner of the power line was PREPA.”).

Because the date of

Carrasquillo’s earliest knowledge of P.T. Sumi (August 7, 2013) is
one year before the date she named P.T. Sumi in the complaint
(August

6,

2014),

Carrasquillo’s

claims

are

not

barred

by

limitations as a matter of law.
Consequently, P.T. Sumi’s motion to dismiss the
complaint as time-barred pursuant to Rules 12(b)(1) and 12(b)(6),
in so far as it relates to Carrasquillo, is DENIED.
B.

Personal Jurisdiction
P.T.

Sumi

additionally

argues

that

it

lacks

the

sufficient minimum contacts with Puerto Rico to allow this Court to
exercise personal jurisdiction over it.

(Docket No. 37.)

P.T.

Civil No. 14-1505 (FAB)
Sumi

therefore

contends

14
that

dismissal

of

plaintiff’s

second

amended complaint against it is warranted pursuant to Federal Rule
of Civil Procedure 12(b)(2).
Personal

Id.

jurisdiction

refers

to

a

court’s

power

to

exercise authority over a person or entity under both the forum’s
long-arm statute and the Due Process Clause of the Fourteenth
Amendment.

Negron-Torres v. Verizon Communs., Inc., 478 F.3d 19,

24 (1st Cir. 2007); see also Mapfre Puerto Rico v. GuadalupeDelgado, 608 F. Supp. 2d 255, 258 (D.P.R. 2009) (Besosa, J.).

It

is the plaintiff’s burden to demonstrate the existence of every
fact required to satisfy both the statutory and constitutional
requirements.

Swiss Am. Bank, 274 F.3d at 618.

Here, because

Puerto Rico’s long-arm statute extends jurisdiction to the maximum
limits imposed by the Constitution, the due process analysis is
determinative.

Negron-Torres, 478 F.3d at 24.

The Court will

therefore proceed with the constitutional inquiry.
Personal
“specific.”

jurisdiction

may

be

Daynard, 290 F.3d at 51.

either

See id.
“general” or

In determining whether

general or specific jurisdiction exists, a court should look to the
existence of “minimum contacts” between the defendant and the forum
that renders such jurisdiction consistent with “traditional notions
of

fair

play

and

substantial

justice.”

Int’l

Shoe

Co.

v.

Civil No. 14-1505 (FAB)

15

Washington, 326 U.S. 310, 316 (1945). The Court will consider both
general and specific jurisdiction.
1.

General Jurisdiction
General jurisdiction may be found when a defendant

has “continuous and systematic activity” in the forum state, even
if the activity is unrelated to the claims at hand, Daynard, 290
F.3d at 51, so long as the exercise of jurisdiction would be
reasonable, Swiss Am. Bank, 274 F.3d at 619.

This standard is

considerably stringent because it allows a defendant to be brought
into court in the forum state to “answer for any of its activities
anywhere in the world.”

Canatelo, LLC v. NUVICO, Inc., Civ. No.

12-1430 (JAG), 2013 WL 4546017, at *2 (D.P.R. Aug. 27, 2013)
(internal quotation marks and citation omitted).
P.T. Sumi contends that the Court lacks general
personal jurisdiction over it.

(Docket No. 37 at p. 14.)

The

Court agrees. The Supreme Court has stated that for a corporation,
the paradigmatic forum for the exercise of general jurisdiction is
the place where the corporation is “fairly regarded as at home.”
Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846,
2854 (2011).
Rico,

as

it

It is clear that P.T. Sumi is not “at home” in Puerto
is

uncontested

by

plaintiffs

that

P.T.

Sumi

is

organized under the laws of Indonesia with its principal place of
business and “nerve center” located in Indonesia. (Docket No. 9 at

Civil No. 14-1505 (FAB)
¶ 16.)

16

Furthermore, plaintiffs have failed to allege continuous

and systematic activity in Puerto Rico that would nonetheless allow
this Court to exercise general jurisdiction over P.T. Sumi.
Docket Nos.

9,

45.

Although

plaintiffs allege

a

See

dealership

arrangement between P.T. Sumi and FTC (a California corporation)
and FTC and Pep Boys (a nationwide retailer), they fail to provide
something more that establishes continuous and systematic activity
with

Puerto

Rico,

such

as

contract

transactions, or service visits.

negotiations,

business

See Mapfre, 608 F. Supp. 2d

at 261 (finding no general jurisdiction where plaintiff did not
establish that defendant-manufacturer “purposefully sought a dealer
in Puerto Rico to serve the market or that negotiations existed
that lead to the establishment of such a dealer”).

As a result,

plaintiffs have not made the prima facie showing necessary for the
exercise of general personal jurisdiction.
2.

Specific Jurisdiction
In the absence of general jurisdiction, a court may

still exercise specific jurisdiction over a person.

Swiss Am.

Bank, 274 F.3d at 623. Specific jurisdiction may be exercised over
an out-of-state defendant where the claim “arises directly out of,
or relates to, the defendant’s forum-based contacts.”

United

Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960
F.2d 1080, 1088-89 (1st Cir. 1992).

To determine whether specific

Civil No. 14-1505 (FAB)

17

jurisdiction exists, the First Circuit Court of Appeals considers
three

factors:

reasonableness.

relatedness,

purposeful

Daynard, 290 F.3d at 60.

availment,

and

The Court will consider

each prong.
i.

Relatedness
To satisfy the relatedness prong, the claim

underlying the cause of action must directly relate to - or arise
out of - a defendant’s forum state activities.

Daynard, 290 F.3d

at 60; Ticketmaster, 26 F.3d at 206 (“[Relatedness] focuses on the
nexus between the defendant’s contacts and the plaintiff’s cause of
action.”).

That is, the defendant’s in-state activities must form

a material element of proof in the plaintiff’s case.

Harlow v.

Children’s Hosp., 432 F.3d 50, 61 (1st Cir. 2005).
Plaintiffs claim that the relatedness test is
met because Rosado purchased the defective Falken Tire at the Pep
Boys store in Rio Grande, Puerto Rico, and the Toyota Camry that
crashed, causing Rosado to die on July 29, 2013, was outfitted with
those

same

Falken

Tires.

(Docket

No.

45

at

pp.

16,

21.)

Plaintiffs highlight that P.T. Sumi manufactured the tires that
were sold to FTC - an entity based in California - and that FTC
sells to Pep Boys, which markets and sells across the United States
and Puerto Rico.

Id. at p. 21.

Plaintiffs fail to present

evidence, however, that shows that P.T. Sumi participated in the

Civil No. 14-1505 (FAB)

18

sale of the tire in Puerto Rico, or that Pep Boys in Rio Grande
contacted P.T. Sumi and that P.T. Sumi referred them to FTC, the
distributor.

See Mapfre, 608 F. Supp. 2d at 262 (finding that the

relatedness prong was not met where plaintiff failed to present
evidence or allege that defendant participated in the sale of a
good in Puerto Rico).

The Court thus finds the relatedness prong

is not met.
ii.

Purposeful Availment
To satisfy the purposeful availment prong, the

defendant’s contacts with Puerto Rico must constitute purposeful
availment of the benefits and protections afforded by Puerto Rico’s
laws.

See Swiss Am. Bank, 274 F.3d at 620.

The purposeful

availment prong focuses on the defendant’s intentionality and is
only satisfied when the defendant “purposefully and voluntarily
directs his activities toward the forum so that he should expect,
by virtue of the benefit he receives, to be subject to the court’s
jurisdiction based on these contacts.”
citations

omitted).

“Voluntary”

Id. at 623-24 (internal

means

that

the

defendant’s

contacts with the forum state must not be based on the unilateral
actions of another party or a third person, Nowak v. Tak How Invs.,
Ltd., 94 F.3d 708, 716 (1st Cir. 1996) (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475 (1985)), but must instead result from
actions by the defendant himself, Phillips v. Prairie Eye Ctr., 530

Civil No. 14-1505 (FAB)

19

F.3d 22, 28 (1st Cir. 2008) (internal citations omitted).

To

establish purposefulness, a court may consider “prior negotiations,
contemplated future consequences, the terms of the contract and the
parties’ actual course of dealing.”

Mapfre, 608 F. Supp. 2d at 262

(citing Burger King, 471 U.S. at 475).
The question here is:

can an entity based in

Indonesia (P.T. Sumi), who manufactured a tire that they sold to a
corporation in California (FTC), who sold to a nationwide retail
and service chain (Pep Boys), who ultimately sold the specific tire
in its Rio Grande, Puerto Rico shop, be said to have purposefully
availed itself of the privilege of conducting activities in Puerto
Rico?
To help answer this question, plaintiffs rely
upon the stream of commerce theory.
2849.

See Goodyear, 131 S. Ct. at

Under stream of commerce theory, a court may bring a

manufacturer into its jurisdiction if the manufacturer’s allegedly
defective goods are the source of the injury and the sale of the
product was not simply an isolated occurrence, but rather related
to the efforts of that manufacturer to target the particular forum.
J. McIntyre Mach., Ltd., v. Nicastro, 131 S. Ct. 2780, 2788 (2011);
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
As a general rule, however, the stream of commerce theory may not
be

used

to

assert

jurisdiction

when

a

defendant

“simply

Civil No. 14-1505 (FAB)
manufactures

products

20
that

eventually

arrive

in

the

forum.”

Canatelo, LLC v. AXIS Commc’ns AB, 953 F. Supp. 2d 329, 336-37
(D.P.R. 2013) (citing J. McIntyre, 131 S. Ct. at 2792 (Breyer, J.,
concurring)).

Furthermore, simply “doing business with a company

that does business in [the forum] is not the same as doing business
in [the forum].” Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc.,
148 F.3d 1355, 1361 (Fed. Cir. 1998).
Plaintiff’s claim of jurisdiction centers on
the fact that P.T. Sumi, a company with its principal place of
business and “nerve center” in Indonesia, as a subsidiary of the
Japanese corporation Sumitomo, manufactures the Falken Tire.

P.T.

Sumi partners with FTC - a corporation organized under the laws of
the state of California, and a corporation advertised as Sumitomo’s
sale division in North America - to sell the Falken Tire directly
to FTC.

FTC sells the Falken Tire to Pep Boys, a nationwide retail

and service chain with over 800 stores across the United States.
Pep Boys has a store in Rio Grande, Puerto Rico, which sold the
allegedly

faulty

pp. 17-19.)
that P.T.

Falken

Tire

to

Rosado.

(Docket

No.

45

at

Based on this attenuated chain, plaintiffs contend
Sumi

distributors.

“cannot

willfully

ignore” the

actions

of

its

Id. at 20.
But this distribution chain does not show that

P.T. Sumi directly targeted Puerto Rico.

The fact that P.T. Sumi

Civil No. 14-1505 (FAB)

21

sells to FTC, who in turn distributes to Pep Boys nationwide,
including stores in Puerto Rico, does not show that P.T. Sumi
purposefully availed itself of Puerto Rico’s laws because there is
no

evidence

voluntary.

that

P.T.

Sumi’s

contacts

with

Puerto

Rico

are

This distribution chain merely indicates incidental

contacts based on the actions of third parties, which is not
enough. Nowak, 94 F.3d at 716. Furthermore, plaintiffs present no
facts

demonstrating

that

P.T.

Sumi

purposefully

directed

its

activities toward Puerto Rico. Plaintiffs did not present evidence
to show, for example, any negotiation, or contract between P.T.
Sumi and FTC, or Pep Boys, that specified sales in Puerto Rico.
Mapfre, 608 F. Supp. 2d at 262.

From the tenuous nature of the

distribution chain, it appears instead that P.T. Sumi simply
manufactured a Falken Tire that eventually arrived for sale in
Puerto Rico.

AXIS Commc’ns, 953 F. Supp. 2d at 336-37.
Thus, because the evidence presented does not

show that P.T. Sumi intended to direct its activities toward Puerto
Rico voluntarily and purposefully such that it should expect to be
subject to Puerto Rico’s jurisdiction, the Court cannot conclude
the purposeful availment prong has been met.
iii. Reasonableness
To satisfy the reasonableness prong, the court
should assess the fairness of subjecting a nonresident defendant to

Civil No. 14-1505 (FAB)

22

the court’s authority.

See Ticketmaster, 26 F.3d at 209.

The

Supreme Court has identified five factors to consider, known
collectively as the “gestalt factors.”
defendant’s

burden

of

appearance;

Id.
(2)

They are:
the

(1) the

forum

state’s

adjudicatory interest; (3) the plaintiff’s interest in obtaining
convenient relief; (4) the judicial system’s interest in obtaining
effective

resolution

interests

of

policies.

Id. (citing Burger King, 471 U.S. at 477).

all

of

the

sovereigns

controversy;
in

and

promoting

(5)

the

common

substantive

social

In assessing

the reasonableness prong, the First Circuit Court of Appeals has
adopted a sliding scale approach: the weaker the plaintiff’s
showing on the relatedness and purposeful availment prong, the less
the defendant must show in terms of unreasonableness.

Id.

that

purposeful

the

plaintiff’s

availment

was

not

showing
met,

the

of

relatedness

defendant’s

and
hurdle

to

Given

show

unreasonableness to defeat jurisdiction is significantly lower.
Id.
The Court finds that the “gestalt factors” do
not cut towards exercising personal jurisdiction because, first, it
would be a burden for P.T. Sumi to be brought into a forum of which
it

has

not

availed

itself.

Second,

although

this

forum

is

interested in exercising jurisdiction over one who causes tortious
injuries within its borders, Ticketmaster, 26 F.3d at 201, the

Civil No. 14-1505 (FAB)

23

interest is lessened by doubts as to whether P.T. Sumi purposefully
availed itself of the forum.

Third, plaintiffs clearly have an

interest in convenient relief, but this cannot tip the scales in
their favor against the notions of fair play and substantial
justice that prevent P.T. Sumi from having to defend itself in a
place it

did

not

purposefully

target.

Fourth,

the

judicial

system’s interest in obtaining the most effective resolution of the
controversy does not appear to cut either way because plaintiffs
have additional claims against other manufacturer and distributor
defendants

who

may

have

minimum

contacts

with

Puerto

Rico.

Finally, “the most prominent policy implicated is the ability of a
state to provide a convenient forum for its residents to redress
injuries inflicted by out-of-forum actors.”
70 F.3d 1381, 1395 (1st Cir. 1995).

Sawtelle v. Farrell,

But again, convenience does

not carry enough weight to allow the Court to haul P.T. Sumi into
Puerto Rico.

Thus, the Court finds that the reasonableness prong

does not allow for the Court’s exercise of jurisdiction.
For the above reasons, the Court finds that the
relatedness, purposeful availment, and reasonableness prongs are
not met and, therefore, specific personal jurisdiction over P.T.
Sumi is lacking.

Civil No. 14-1505 (FAB)
3.

24

Jurisdictional Discovery
As

a

last-ditch

effort,

plaintiffs

ask

for

permission to conduct jurisdictional discovery because they have
“made

a

colorable

jurisdiction.”

case

for

the

existence

(Docket No. 45 at p. 21.)

of

in

personam

As a general matter,

even when a plaintiff has made a “colorable claim” for personal
jurisdiction, the district court has broad discretion to decide
whether to grant its request for jurisdictional discovery.
Am. Bank, 274 F.3d at 626.

Swiss

A plaintiff’s failure to allege

specific contacts that would be relevant to establish personal
jurisdiction

may

discovery request.

prove

fatal

to

that

party’s

jurisdictional

Id. at 626-27.

As discussed above, plaintiffs have failed to make
a

colorable

Accordingly,

claim
the

for

personal

Court,

in

jurisdictional discovery request.

jurisdiction
its

over

discretion,

P.T.
denies

Sumi.
the

See Mapfre, 608 F. Supp. 2d at

263 (holding it “prudent” and within the court’s discretion to deny
the jurisdictional discovery request where the plaintiff failed to
show personal jurisdiction).
Consequently, P.T. Sumi’s motion to dismiss the
second amended complaint pursuant to Rule 12(b)(2) is GRANTED.

Civil No. 14-1505 (FAB)
IV.

25

CONCLUSION
For the reasons explained above, the Court finds that although

the claims against P.T. Sumi are not time-barred, the Court lacks
personal jurisdiction over P.T. Sumi.

Accordingly, the Court

GRANTS P.T. Sumi’s motion to dismiss, (Docket No. 37). Plaintiff’s
claims against

P.T.

Sumi

(Docket

No. 9),

are

DISMISSED

WITH

PREJUDICE.
There being no just reason for delay, partial judgment shall
be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 17, 2015.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE