Everett v. BRP-Powertrain GmbH & Co KG et al
Filing
45
ORDER signed by Judge Rudolph T. Randa on 1/20/2016. 36 Plaintiff's MOTION for Leave to File Amended Complaint GRANTED. 37 Plaintiff's MOTION for Reconsideration DENIED. 38 Plaintiff's Second MOTION for Leave to File Second Amended Complaint DENIED. (cc: all counsel)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GREGORY EVERETT,
Plaintiff,
-vs-
Case No. 14-C-1189
BRP-POWERTRAIN, GmbH, & Co. KG
formerly known as BOMBARDIER-ROTAX,
GmbH, MOTORENFABRIK, a foreign corporation,
BOMBARDIER RECREATIONAL PRODUCTS,
a foreign corporation, KODIAK RESEARCH, Ltd.,
a foreign corporation, and LEADING EDGE
AIR FOILS, LLC,
Defendants.
DECISION AND ORDER
The plaintiff, Gregory Everett, was seriously injured when his plane,
a small experimental aircraft, crashed into a bean field in his home state of
Missouri. Everett alleges that the crash was caused by a faulty engine that
he purchased at an air show in Oshkosh, Wisconsin. On September 9, 2015,
the Court issued an order granting motions to dismiss for lack of personal
jurisdiction filed by three of the four defendants in this case: BRPPowertrain, GmbH & Co. KG (“Powertrain”), an Austrian corporation that
designed and manufactured the engine at issue, a Rotax 582 Model DCDI;
Bombardier Recreational Products (“BRP”), a Canadian corporation and
intermediate parent of Powertrain; and Kodiak Research, Ltd. (“Kodiak”),
a Bahamian corporation and distributor of Rotax engines. Everett moves
for reconsideration and for leave to file an amended complaint. 1 These
motions are denied.2
Everett’s request to reconsider an interlocutory order is governed by
Federal Rule of Civil Procedure 54(b). Jackson v. McKay-Davis Funeral
Home, No. 07-C-1037, 2012 WL 5423739, at *1 (E.D. Wis. Nov. 6, 2012).
Reconsideration is appropriate to correct manifest errors of law or fact or to
present newly discovered evidence. Bordelon v. Chi. Sch. Reform Bd. of
Trustees, 233 F.3d 524, 529 (7th Cir. 2000).
In its Order, the Court held that Powertrain, BRP, and Kodiak are
not subject to general personal jurisdiction because they are not
“essentially at home” in Wisconsin. 2015 WL 5254555, at *3 (citing and
discussing Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct.
2846 (2011) and Daimler AG v. Bauman, 134 S. Ct. 746 (2014)). Everett
confusingly asserts that BRP “does business in Wisconsin and, therefore, is
undisputedly subject to general jurisdiction in Wisconsin.” This is not the
Everett actually filed two motions for leave to file an amended complaint. The
first motion addresses the Court’s concerns regarding the citizenship of the fourth
defendant, Leading Edge Air Foils (“LEAF”), for purposes of diversity jurisdiction. The
second motion, discussed herein, attempts to cure jurisdictional deficiencies regarding
the other three defendants.
1
2
Everett’s corresponding request for oral argument is denied.
-2-
standard. Everett also points to BRP’s physical presence in Wisconsin – a
research and development facility in Sturtevant, Wisconsin. Again, this is
insufficient to generate a prima facie case of general personal jurisdiction.
See id. at *6. Everett is rehashing well-worn territory, advancing
arguments the Court previously considered and rejected. The bottom line is
that the Supreme Court “has identified only two places where [the
‘essentially at home’] requirement will be met: the state of the corporation’s
principal place of business and the state of its incorporation.” Kipp v. Ski
Enterprise Corp. of Wis., Inc., 783 F.3d 695, 698 (7th Cir. 2015). Wisconsin
is not one of those places for any of these defendants.
As to specific jurisdiction, the Court held that Powertrain, BRP, and
Kodiak cannot be haled into Court in Wisconsin pursuant to the “stream of
commerce” theory of personal jurisdiction. The Court noted in passing that
the Supreme Court rejected a “pure stream of commerce” theory in J.
McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780 (2011). On further
reflection, this was perhaps an inaccurate characterization of J. McIntyre,
which was a plurality opinion addressing two of the differing stream of
commerce approaches set forth in Asahi Metal Indus. Co. v. Superior Court
of Cal., 480 U.S. 102 (1987): Justice Brennan’s “mere foreseeability” test,
480 U.S. at 117, and Justice O’Connor’s “foreseeability plus” test, 480 U.S.
-3-
at 112.
The Seventh Circuit has yet to consider the impact of J. McIntyre on
the Supreme Court’s stream-of-commerce jurisprudence, but other circuits
have held that Justice Breyer’s concurring opinion must be followed as the
narrowest holding among the plurality opinions in that case. AFTG-TG,
LLC v. Nuvoton Tech. Corp., 689 F.3d 1358, 1363 (Fed. Cir. 2012);
Ainsworth v. Moffett Eng’g Ltd., 716 F.3d 174, 178 (5th Cir. 2013);
Williams v. Romarm, S.A., 756 F.3d 777, 784 (D.C. Cir. 2014). According to
the Federal Circuit, the “narrowest holding is that which can be distilled
from Justice Breyer’s concurrence – that the law remains the same after
McIntyre.” AFTG-TG, 689 F.3d at 1363. According to the Fifth Circuit,
“Justice Breyer’s concurrence was explicitly based on Supreme Court
precedent and on McIntyre’s specific facts, we find that this case falls
outside its limited scope.” Ainsworth, 716 F.3d at 179. Finally, the D.C.
Circuit took “no position” on “which Asahi theory should prevail.” Romarm,
756 F.3d at 784. Rather, the court relied on “Justice Breyer’s concurrence
… that certain facts, without more, are insufficient for personal
jurisdiction.” Id. (citing J. McIntyre, 131 S. Ct. at 2792).3 On the other
hand, a concurring opinion in AFTG-TG asserts that Justice Breyer’s
3
The D.C. Circuit did not discuss or even cite AFTG-TG or Ainsworth.
-4-
concurrence actually endorses Justice O’Connor’s approach in Asahi.
AFTG-TG, 689 F.3d at 1367 (“Justice Breyer applies Justice O’Connor’s
approach by emphasizing the relevant facts in McIntyre lacked ‘something
more’ to establish jurisdiction”) (Rader, C.J., concurring).
Whatever the import of J. McIntyre, the Court is still convinced that
Powertrain, BRP, and Kodiak cannot be forced to litigate in Wisconsin
without violating due process. Everett asserts that these defendants
purposefully availed themselves of the Wisconsin marketplace because
prospective purchasers can search the internet for “fly brp rotax engines,”
click the first result, www.flyrotax.com, click on “dealer locator” and then
“State of Wisconsin,” revealing three dealers in Wisconsin, including
LEAF, which purchases Rotax engines for resale from Kodiak. The problem
with this argument is that LEAF, the only link to the state of Wisconsin, is
not affiliated with the other defendants in this case, nor is LEAF subject to
a distribution agreement in Wisconsin. Stream of commerce “refers to the
movement
of
goods
from
manufacturers
through
distributors
to
consumers.” J. McIntyre at 2788 (emphasis added). None of these
defendants had any expectation that a Rotax engine would be sold to a
consumer residing in Wisconsin. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 298 (1980) (placing goods into the stream of
-5-
commerce “with the expectation that they will be purchased by consumers
within the forum State” may indicate purposeful availment) (emphasis
added). It bears repeating that in this case, the engine at issue was
purchased by a Missouri resident, not a Wisconsin resident.
The Court also rejects, once again, Everett’s assertion that he is
entitled to jurisdictional discovery. The law in this circuit is clear: “the
proponent of jurisdiction must make a ‘prima facie’ showing, and if the
defendant submits affidavits or other evidence in opposition to the exercise
of jurisdiction, the plaintiff ‘must go beyond the pleadings and submit
affirmative evidence supporting the exercise of jurisdiction.’” 2015 WL
5254555, at *6 (quoting Purdue Research Found. v. Sanofi-Synthelabo,
S.A., 338 F.3d 773, 783 (7th Cir. 2003)) (emphasis added). Everett came
forward with no such evidence. Therefore, he is not entitled to
jurisdictional discovery. Id.
Finally, Powertrain, BRP, and Kodiak request the entry of judgment
under Rule 54(b), which provides that the Court “may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties only of the
court expressly determines that there is no just reason for delay.” The
defendants do not explain why it is appropriate to enter judgment now
instead of at the end of this litigation. See In re Archdiocese of Milwaukee,
-6-
482 B.R. 792, 800 (E.D. Wis. 2012) (“Rule 54(b) judgments are generally
disfavored because they allow piecemeal appellate litigation”). The
defendants can renew their request for a Rule 54(b) judgment, but they
must make the appropriate showing so the Court can exercise its discretion
accordingly.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
1.
Everett’s first motion for leave to file an amended complaint
[ECF No. 36] is GRANTED;
2.
Everett’s motion to reconsider [ECF No. 37] is DENIED; and
3.
Everett’s second motion for leave to file an amended complaint
[ECF No. 38] is DENIED.
Dated at Milwaukee, Wisconsin, this 20th day of January, 2016.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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