Smith v. Teledyne Continental Motors Inc
IT IS ORDERED that Teledyne's motions to dismiss (15)(60) be, and are hereby, DENIED in case 9:10-cv-02152-WOB -BHH. In case 9:10-cv-02546-WOB -BHH, the (81) Motion to Dismiss is denied. The parties shall adhere to the discovery deadline previously set by the Court. Signed by Honorable William O Bertelsman on 1/3/12. Associated Cases: 9:10-cv-02152-WOB -BHH, 9:10-cv-02546-WOB -BHH(cper, )
TO BE PUBLISHED IN FEDERAL SUPPLEMENT 2D
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CIVIL ACTION NO. 9:10cv2152
EDWARD I. SMITH
MOTORS, INC., ET AL.
OPINION AND ORDER
CIVIL ACTION NO. 9:10cv2546
JENNIFER DAWN JONES, Individually
And as Administrator of the Estate of
Robert Gary Jones
TELEDYNE CONTINENTAL MOTORS,
INC., ET AL.
BERTELSMAN, SENIOR DISTRICT JUDGE:1
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
On March 15, 2010, at about 6:00 p.m., Robert Gary Jones, vacationing
from his home in Georgia, was jogging on the beach at Hilton Head, South
Carolina, when he was struck and killed by an airplane.
The plane, operated by Edward I. Smith, was a light single-engine aircraft
Smith had made from a kit. As he was flying the plane up the Atlantic coast about
ten miles offshore, the propeller fell off the plane and into the sea.
Smith attempted to make the Hilton Head airport, but came up short, crash
landing on the beach and fatally striking Jones.
Jones was a 38-year-old stockbroker who left behind his wife and two small
children. The Joneses were all citizens of Georgia.
Subsequently, Jones’s wife, Jennifer, was appointed administrator of his
estate and filed this action in the United States District Court for the District of
South Carolina. She named as defendants: Teledyne Continental Motors, Inc., the
manufacturer of the airplane’s engine, a citizen of Delaware and Alabama; Smith,
a citizen of Virginia, as pilot of the plane; Lancair International, Inc.,
manufacturer of the airframe, a citizen of Oregon; Penn Yan Aero Service, Inc., a
citizen of New York, which had serviced the plane prior to the crash; and Hartzell
Propeller, Inc., a citizen of Ohio, manufacturer of the propeller.
Smith filed a separate action against defendants, Teledyne Continental
Motors, Inc. and Hartzell Propeller, Inc., for damage to his airplane.
was later consolidated with that of the Jones estate.
Lancair International, Inc. was subsequently dismissed by agreement.
All defendants have acceded to the personal jurisdiction of this Court except
Teledyne, which filed motions to dismiss for lack of personal jurisdiction. The
Court ordered discovery to be conducted on this issue and appropriate briefing.
Oral argument was held on the motions on December 15, 2011, at Charleston, and
the motion is now ripe for decision.
A. Preliminary matters
Although some of the parties have argued the case as one of “general
jurisdiction,” under which rubric it must be shown that a party’s presence in the
forum state is so continuous and systematic that it may be deemed to be “at home”
there,2 as the subsequent discussion herein will illustrate, Teledyne’s presence in
South Carolina is not that pervasive. For the reasons hereafter discussed,
however, the Court does hold that specific jurisdiction over Teledyne is proper and
its motions to dismiss must be DENIED.
See Goodyear Dunlop Tires Operations v. Brown, __U.S. __ , 131 S. Ct. 2846, 2851 (2011).
B. McIntyre Machinery, Ltd. v. Nicastro
Having carefully analyzed precedents of the Supreme Court of the United
States and the Fourth Circuit, this Court concludes that the recent decision of the
Supreme Court in J. McIntyre Machinery, Ltd. v. Nicastro, __ U.S. __, 131 S. Ct.
2780 (2011), and existing Fourth Circuit precedents are dispositive of the issue at
The McIntyre decision is somewhat difficult to interpret because no single
opinion was adopted by a majority of the Justices. Rather, there are three opinions
which must be synthesized.
At the outset, a caveat must be noted: The plurality opinion, expressing the
views of four Justices, does not state the holding of the Court.
It is well established, under Marks v. United States, 430 U.S. 188, 97
S.Ct. 990, 51 L.Ed.2d 260 (1977), that when a decision of the Court
lacks a majority opinion, the opinion of the Justices concurring in the
judgment on the “narrowest grounds” is to be regarded as the Court’s
holding. 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).
The Marks rule does not apply, however, unless “the narrowest
opinion represents ‘a common denominator of the Court’s reasoning’
and ‘embod[ies] a position implicitly approved by at least five Justices
who support the judgment.’” Association of Bituminous Contractors,
Inc. v. Apfel, 156 F.3d 1246, 1254 (D.C. Cir. 1988) (quoting King v.
Palmer , 950 F.2d 771, 781 (D.C. Cir. 1991)).
A.T. Massey Coal Co., Inc. v. Massanari, 305 F.3d 226, 236 (4th Cir. 2002).
As this Court interprets McIntyre, the “common denominator of the Court’s
reasoning” and “a position approved by at least five Justices who support the
judgment” is the “stream-of-commerce plus” rubric enunciated in an opinion by
Justice O’Connor in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102,
McIntyre, like Asahi, is a products liability case involving a product which
was manufactured in a foreign country, which the “stream of commerce” brought
to the United States. In Asahi, it was valve stems for motorcycle tires; in McIntyre,
it was an industrial machine. The defendants were foreign corporations. The
commerce was foreign commerce.
In both cases, the Court held that personal jurisdiction did not exist because
the defendants had engaged in no conduct which would subject them to being sued
in a foreign country without offending “traditional notions of fair play and
In Asahi, Justice O’Connor filed an opinion. Part II-B, in which seven
Justices concurred, applied a straightforward reasonableness test. Under this test,
these Justices agreed that it would be unduly burdensome on this foreign defendant
-- and thus a violation of due process -- to permit it to be subjected to suit in the
United States when it had engaged in minimal activity in this country, even though
a fair number of its valve stems were found in tires sold here.
See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation and internal
quotation marks omitted).
Justice O’Connor was joined by three other Justices in Part II-A of the same
opinion stating that the mere foreseeability that a product placed into interstate
commerce would end up in the forum state was not enough for personal
jurisdiction, as advocated by four Justices in a concurring opinion. Asahi, 408 U.S.
Rather, she referred to cases which held that to be subject to such
jurisdiction manufacturers “must have made deliberate decisions to market their
products in the forum state.” Id. at 111-12.
Justice O’Connor continued:
We now find this latter position to be consonant with the requirements
of due process. The “substantial connection,” Burger King, 471 U.S.,
at 475, 105 S.Ct., at 2184; McGee, 355 U.S., at 223, 78 S.Ct., at 201,
between the defendant and the forum State necessary for a finding of
minimum contacts must come about by an action of the defendant
purposefully directed toward the forum State. Burger King, supra,
471 U.S., at 476, 105 S.Ct., at 2184; Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984). The
placement of a product into the stream of commerce, without more, is
not an act of the defendant purposefully directed toward the forum
State. Additional conduct of the defendant may indicate an intent or
purpose to serve the market in the forum State, for example, designing
the product for the market in the forum State, advertising in the forum
State, establishing channels for providing regular advice to customers
in the forum State, or marketing the product through a distributor who
has agreed to serve as the sales agent in the forum State. But a
defendant’s awareness that the stream of commerce may or will sweep
the product into the forum State does not convert the mere act of
placing the product into the stream into an act purposefully directed
toward the forum State.
Id. at 112 (underlining added).
This view has come to be known as the “stream-of-commerce plus” test.
Although it did not win the support of a majority of the Court in Asahi, in the view
of this Court, it has now done so in McIntyre.
As noted, McIntyre also involved a product -- an industrial machine -- which
was manufactured outside the United States and caused an injury in the United
Three opinions were filed by various members of the Court.
In the plurality opinion, four Justices expressed their strong view that the
propriety of exercising personal jurisdiction should be based on concepts of
national or state sovereignty rather than on foreseeability, convenience or the
interests of the judicial system. McIntyre, 131 S. Ct. at 2789-90.
However, when this mode of analysis was applied to the facts (which
reflected minimal activity by the defendant), the rationale was similar to Justice
O’Connor’s “stream-of-commerce plus” test.
Id. at 2790-91.
emphatically rejected the pure “foreseeability” test, advocated by a dissenting
opinion in which three Justices joined. Id.
The concurring opinion by two Justices agreed with the result of the
plurality opinion, but rejected the plurality’s stricter approach emphasizing
sovereignty. Id. at 2793-94. These concurring Justices expressed the view that the
case could be resolved by existing precedents, including Justice O’Connor’s
opinion in Asahi and the balancing test put forth in World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286 (1980). Id. at 2792. Thus, six Justices agree that, at a
minimum, the limitations of Justice O’Connor’s test should be applied, although
the plurality would apply an even stricter test, the parameters of which were not
Therefore, the “stream-of-commerce plus” test now commands a majority of
C. Fourth Circuit Cases
The Fourth Circuit has already adopted this view and, therefore, the longarm cases in the Fourth Circuit are not affected by McIntyre. In this respect, this
Court agrees with the analysis in the recent Maryland District Court opinion by
Judge Bredar. Windsor v. Spinner Industry Co., Ltd., __ F.Supp. 2d __, Civil No.
JKB-10-114, 2011 WL 5005199, at *5 (D. Md. Oct. 20, 2011).
Windsor cites as embodying Fourth Circuit law Lesnick v. Hollingsworth &
Vose Co., 35 F.3d 939 (4th Cir. 1994). This Court agrees.
In Lesnick, the Court thoroughly explored the Supreme Court cases,
especially World-Wide Volkswagen and Asahi. Following an extensive analysis of
these precedents, the court succinctly summarized the proper analysis for long-arm
issues in product liability cases:
Cf. Oticon v. Sebotek Hearing Sys., LLC, __ F. Supp.2d __, Civil Action No. 08-5489 (FLW),
at *9 (D.N.J. Aug. 22, 2011).
Thus, we hold that the test to be applied in considering the reach of personal
jurisdiction inquires whether (1) the defendant has created a substantial
connection to the forum state by action purposefully directed toward the
forum state or otherwise invoking the benefits and protections of the laws of
the state; and (2) the exercise of jurisdiction based on those minimum
contacts would not offend traditional notions of fair play and substantial
justice, taking into account such factors as (a) the burden on the defendant,
(b) the interests of the forum state, (c) the plaintiff’s interest in obtaining
relief, (d) the efficient resolution of controversies as between states, and (e)
the shared interests of the several states in furthering fundamental
substantive social policies. See Hanson, 357 U.S. at 253, 78 S.Ct. at 1239;
Burger King, 471 U.S. at 475, 105 S.Ct. at 2183; Asahi, 480 U.S. at 113, 107
S.Ct. at 1033.
Id. at 945-46.
A word shall be said about World-Wide Volkswagen. Despite the title, the
defendants in that case were a Northeastern retailer and distributor of Audi
automobiles, one of which was involved in an accident in the forum state. Key to
the Court’s rejection of personal jurisdiction was its observation that the
defendants “carry on no activity whatsoever in Oklahoma . . . no sales . . . no
services . . . . They avail themselves of none of the privileges and benefits of
Oklahoma law. They solicit no business there . . . or seek to serve the Oklahoma
market.” 444 U.S. at 295.
The Court observed further that it is whether the “defendant’s conduct and
connection with the forum State are such that [it] should reasonably anticipate
being haled into court there” that is the critical factor.
444 U.S. at 297.
Teledyne’s activities in South Carolina are such that it should have had such
D. Personal Jurisdiction over Teledyne is Proper.
1. Substantial Connection to South Carolina
The first question in the Lesnick analysis is “whether the defendant has
created a substantial connection to the forum state by action purposefully directed
toward the forum state or otherwise invoking the benefits and protection of the
laws of the state.” Lesnick, 35 F.3d at 945-46.
It is apparent that Teledyne meets this test. Over the past ten years,
Teledyne has sold at least 400 engines directly to South Carolina purchasers at a
cost of about $40,000 apiece for a total revenue of approximately $1,600,000.
(Doc. 148 at 21; Doc. 158-2 at 24). Further, its engines are installed in
approximately one-third of general aviation aircraft based in South Carolina. It
maintains a continuous relationship with the owners of these engines through its
Further, it advertises in South Carolina through aviation magazines. It
maintained a distributor here until 2004. It directly sells parts for its engines and
other products to South Carolina customers through one or more interactive
websites. It provides warranty work on its engines in the state. It investigates
crashes in South Carolina involving airplanes containing its engines.
Significantly, Teledyne maintains ongoing relationships with at least eleven
“fixed base operators” (FBOs). These are stores/service centers located at South
Carolina airports. Teledyne has a contract with each FBO which requires it to
display Teledyne’s logos and actively promote the sale of its products. Teledyne
maintains a continuing interactive internet relationship with these FBOs, through
which it provides them with technical support in repairing Teledyne products.
Teledyne warranty work must be performed by these FBOs.
Teledyne both buys and sells products over the internet and through retailers
to South Carolina residents. It admits it has derived over $1 million in revenue
from its sales to South Carolina residents over the past 10 years. (Doc. 148 at 3738).
One may assume that Teledyne -- not appearing to be a corporate shrinking
violet -- would sue any of the FBOs which violated their contracts, or any of its
customers who did not pay their bills. Thus, it has “invoked the benefits and
protections” of South Carolina law.5
It may be seen from the above that Teledyne meets the literal requirements
of the South Carolina long-arm statute,6 which provides that a court may exercise
Jones’s memorandum in opposition enumerates many more significant contacts by which
Teledyne targets or purposefully directs commercial activities at South Carolina.
S.C. Code Ann. § 36-2-803.
specific personal jurisdiction over an entity which “acts directly or by an agent as
to a cause of action arising from” the entity’s
(4) causing tortious injury or death in this State by an act or omission outside
this State if [it] regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from goods used
or consumed or services rendered in this state.
S.C. Code Ann. § 36-2-803(A)(4).
Teledyne argues that it is saved from the effects of this unambiguous
provision by S.C. Code Ann. § 36-2-803(B), which provides : “When jurisdiction
over a person is based solely upon this section, only a cause of action arising from
acts enumerated in this section may be asserted against him.”
This argument is without merit because the complaints allege that Teledyne,
by supplying an engine with design or manufacturing defects outside South
Carolina, did “caus[e] tortious injury [and] death in this State by an act or omission
outside this State.” Thus, the causes of action alleged did arise from the acts
enumerated in the statute, i.e., the “act” of supplying an allegedly defective
engine.7 The “substantial revenue” language is not “an act enumerated in the
statute” from which a cause of action could arise, but merely refers to the
minimum contacts required.
The South Carolina long-arm statute has been held to be co-extensive with due process, and
thus only due process analysis need be performed. Cockrell v. Hillerich & Bradsby Co., 611
S.E.2d 505, 508 (S.C. 2005); Meyer v. Paschal, 498 S.E.2d 635, 638 (S.C. 1998). It should be
noted, however, that Teledyne’s activities here satisfy the literal text of the statute.
2. Traditional notions of fair play and substantial justice.
The second branch of the Fourth Circuit’s Lesnick test requires an inquiry
whether “the exercise of jurisdiction based on those minimum contacts would not
offend traditional notions of fair play and substantial justice. . . .” Lesnick, 35 F.3d
The Lesnick court enumerated four factors derived from the Supreme
Court’s personal jurisdiction cases, to be considered in this determination:
a. the burden of the defendant;
b. the interests of the forum state;
c. the plaintiff’s interest in obtaining relief;
d. the efficient resolution of controversies as between states; and
e. the shared interests of the several states in furthering substantive
The application of these factors to the claims against Teledyne compel the
conclusion that the exercise of specific jurisdiction over it would not “offend
traditional notions of fair play and substantial justice.”
The additional burden on the defendant is relatively slight as
compared to the cost of litigating the matter in its home state.
Teledyne has a national presence and organization.
It has, not
unfairly, been referred to as the “Ford Motor Company of aviation.”
The interests of the forum state are extremely strong, in that
South Carolina, located on a major coastal air corridor, has a
compelling interest in protecting its citizens and visitors and their
property from damage from falling airplanes.
The plaintiffs and other parties can only obtain a complete
resolution of their claims and defenses in an action where all of the
claims among the parties can be resolved in one forum. Otherwise,
they would have to sue Teledyne separately in its home state,
Alabama. The defendants in South Carolina could then point to the
empty chair, placing blame on Teledyne, while Teledyne similarly
points to the empty chairs in Alabama.
d. and e.
The interests of the judicial system and of the various
sovereigns involved also require the resolution of these claims in one
forum. It seems likely to this Court that liability may need to be
apportioned among the various claimants and defendants. This can
only be done in a single forum. If claims among all parties are not
resolved here there will have to be equally complex suits for
contribution and indemnity in other courts in other states, a situation
which would give rise to the danger of inconsistent results and burden
the courts of several states with excessive, overlapping litigation.
Thus, litigation would be prolonged over decades rather than years.
The best chance of a settlement, thus avoiding a highly-complex trial,
is if all the claims can be resolved in one court.
In Goodyear Dunlop Tires, the Supreme Court states:
The North Carolina court’s stream-of-commerce analysis elided the
essential difference between case-specific and all-purpose (general)
jurisdiction. Flow of a manufacturer’s products into the forum, we
have explained, may bolster an affiliation germane to specific
jurisdiction. See, e.g., World-Wide Volkswagen, 444 U.S., at 297, 100
S.Ct. 559 (where “the sale of a product . . . is not simply an isolated
occurrence, but arises from the efforts of the manufacturer or
distributor to serve . . . the market for its product in [several] States, it
is not unreasonable to subject it to suit in one of those States if its
allegedly defective merchandise has there been the source of injury to
its owner or to others” (emphasis added).
Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2855 (2011)
This language fits the present case exactly. In none of the cases cited by
Teledyne did the defendant have the degree of contacts with the forum state
approaching those of Teledyne in this case.
Therefore, the exercise of specific jurisdiction over Teledyne in this case is
Therefore, having reviewed this matter, and being otherwise sufficiently
IT IS ORDERED that Teledyne’s motions to dismiss (Docs. 15, 60) be, and
are hereby, DENIED. The parties shall adhere to the discovery deadline
previously set by the Court.
This 3rd day of January, 2012.
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