FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORENZO MENDOZA MARTINEZ; No. 12-16043
ELIEZER MENDOZA MARTINEZ; ELIU
MENDOZA; GLORIA MARTINEZ D.C. No.
MONTES, 3:11-cv-03194-
Plaintiffs-Appellants, WHA
v.
OPINION
AERO CARIBBEAN; EMPRESSA
AEROCARIBBEAN, S.A.; CUBANA DE
AVIACION, S.A.; ATR; GIE AVIONS
DE TRANSPORT REGIONAL,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted
April 7, 2014—San Francisco, California
Filed August 21, 2014
Before: Barry G. Silverman, William A. Fletcher,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge W. Fletcher
2 MARTINEZ V. AERO CARIBBEAN
SUMMARY*
Personal Jurisdiction
The panel affirmed the dismissal for lack of personal
jurisdiction of a tort lawsuit against a French company.
The panel held that Burnham v. Superior Court, 495 U.S.
604 (1990) (holding that personal service upon physically
present defendant suffices to confer jurisdiction, without
regard to whether defendant was only briefly in state or
whether cause of action was related to his activities there),
does not apply to corporations. Accordingly, service of
process on a corporation’s officer within the forum state does
not create general personal jurisdiction over the corporation.
The panel held that a court may exercise general personal
jurisdiction over a corporation only when its contacts “render
it essentially at home” in the state. Applying Daimler AG v.
Bauman, 134 S. Ct. 746 (2014), the panel concluded that
under this “demanding” jurisdictional standard, the
defendant’s contacts were insufficient to subject it to general
jurisdiction in California.
COUNSEL
Brian J. Malloy (argued), Thomas John Brandi, Daniel
Dell’Osso, The Brandi Law Firm, San Francisco, California,
for Plaintiffs-Appellants.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MARTINEZ V. AERO CARIBBEAN 3
Eric C. Strain (argued), Cameron Robert Cloar, Brian C.
Dalrymple, Nixon Peabody LLP, San Francisco, California,
for Defendant-Appellee.
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs, the heirs of Lorenzo Corazon Mendoza
Cervantes, appeal the district court’s dismissal of their claims
against Avions de Transport Régional (“ATR”) for lack of
personal jurisdiction. Cervantes was a passenger on an
airplane that crashed in Cuba, killing everyone aboard. ATR,
a French company, designed and manufactured the airplane.
Plaintiffs sued ATR in federal court in California, alleging
that ATR’s defective design and construction of the airplane
caused the crash.
We must decide whether, under Burnham v. Superior
Court, 495 U.S. 604 (1990), service of process on a
corporation’s officer within the forum state creates general
personal jurisdiction over the corporation. We hold that
Burnham does not apply to corporations. A court may
exercise general personal jurisdiction over a corporation only
when its contacts “render it essentially at home” in the state.
Daimler AG v. Bauman, 134 S. Ct. 746, 751 (2014)
(alteration and internal quotation marks omitted). Because
ATR is not otherwise “essentially at home” in California, and
service on its corporate officer did not render it so, we affirm
the district court.
4 MARTINEZ V. AERO CARIBBEAN
I. Background
ATR designs, manufactures, and sells aircraft. In
November 2010, an airplane designed and built by ATR
crashed approximately 200 miles southeast of Havana, Cuba.
All sixty-eight people on board the airplane died, including
Cervantes. In 1995, ATR had sold the airplane to Commuter
Finance IV Ltd., a Grand Cayman company, which in the
same year sold the airplane to Continental Airlines, Inc., a
Texas corporation. Plaintiffs allege that at the time of the
crash, the airplane was owned, maintained, serviced, and
operated by some combination of Aero Caribbean, Empresa
Aerocaribbean S.A., and Cubana de Aviacion S.A.,
international airlines based in Cuba. There is no evidence the
airplane was ever operated in California or owned by a
California citizen or resident.
ATR is organized under French law. Its headquarters and
principal place of business are in France. It is not licensed to
do business in California, and it has no office or other
physical presence there. It purchases parts from suppliers in
California, sends representatives to California to promote its
business, and advertises in trade publications available in
California. It has sold airplanes to Air Lease Corp., a
California corporation. Empire Airlines, a regional airline
unaffiliated with ATR, operates ATR airplanes on its route
between Santa Barbara and Ontario, California. Empire
Airlines purchased its ATR airplanes secondhand from third
parties, not directly from ATR. ATR North America, a
wholly owned subsidiary of ATR, had its headquarters in
Virginia at the time of the crash. It has since relocated its
headquarters to Florida.
MARTINEZ V. AERO CARIBBEAN 5
Cervantes’s widow, Gloria Martinez Montes, and his
three sons, Lorenzo Mendoza Martinez, Eliu Mendoza, and
Eliezer Mendoza Martinez, sued ATR in the United States
District Court for the Northern District of California. They
alleged claims for products liability, negligence, breach of
warranty, and wrongful death against ATR. Plaintiffs also
alleged various claims, which are not at issue in this appeal,
against Aero Caribbean, Empressa Aerocarribean S.A., and
Cubana de Aviacion S.A (collectively, “the Cuban
defendants”). Three of the four plaintiffs reside in California.
Montes resides in Mexico.
Plantiffs served the summons and complaint on ATR at
its headquarters in France. ATR moved to dismiss the
complaint for lack of personal jurisdiction. The district court
held that plaintiffs’ allegations did not support personal
jurisdiction over ATR, but it did not immediately grant
ATR’s motion. Instead, the court held the motion in
abeyance and gave plaintiffs slightly more than two months
to conduct limited jurisdictional discovery. During the
discovery period, plaintiffs served copies of the summons and
complaint on ATR’s vice president of marketing while he
was in California attending a conference on ATR’s behalf.
ATR does not dispute that this method of service was proper
under California law. See Cal. Civ. Proc. Code § 416.10(b).
After the close of discovery, plaintiffs filed a
supplemental opposition to ATR’s motion to dismiss.
Plaintiffs argued first that their in-state service on ATR’s vice
president of marketing created general personal jurisdiction
over ATR under Burnham v. Superior Court, 495 U.S. 604
(1990). Second, plaintiffs argued that ATR’s contacts with
California, not limited to the transient presence of ATR’s vice
president, were sufficiently extensive to create general
6 MARTINEZ V. AERO CARIBBEAN
personal jurisdiction. Plaintiffs also requested additional
discovery to investigate ATR North America’s contacts with
California.
The district court granted ATR’s motion to dismiss and
denied plaintiffs’ request for additional jurisdictional
discovery. Plaintiffs appealed. At that time, the Cuban
defendants had not yet been served. After plaintiffs filed
their notice of appeal to this court, they served the Cuban
defendants and continued to pursue their claims against those
defendants in the district court. Accordingly, we held that the
district court’s order granting ATR’s motion to dismiss was
not an appealable final judgment and ordered a limited
remand for the district court to decide whether to certify its
order as an appealable final judgment under Federal Rule of
Civil Procedure 54(b). Mendoza Martinez v. Aero
Caribbean, No. 12-16043 (9th Cir. May 30, 2014)
(unpublished order remanding to district court). We retained
jurisdiction over this appeal. Id. at *6.
On limited remand, the district court certified under Rule
54(b) its order dismissing plaintiffs’ claims against ATR. We
now have jurisdiction over that order under 28 U.S.C. § 1291.
II. Standard of Review
We review de novo the district court’s decision that it
lacks personal jurisdiction over ATR. See Schwarzenegger
v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).
Plaintiffs bear the burden of showing that jurisdiction is
proper, but “[w]here, as here, the motion is based on written
materials rather than an evidentiary hearing, the plaintiff[s]
need only make a prima facie showing of jurisdictional facts.”
Id. (internal quotation marks omitted). We review for abuse
MARTINEZ V. AERO CARIBBEAN 7
of discretion the district court’s denial of plaintiffs’ request
for additional discovery. Morton v. Hall, 599 F.3d 942, 945
(9th Cir. 2010).
III. Discussion
“Where, as here, there is no applicable federal statute
governing personal jurisdiction, the district court applies the
law of the state in which the district court sits.”
Schwarzenegger, 374 F.3d at 800 (citing Fed. R. Civ. P.
4(k)(1)(A)). “California’s long-arm statute, Cal. Civ. Proc.
Code § 410.10, is coextensive with federal due process
requirements, so the jurisdictional analyses under state law
and federal due process are the same.” Mavrix Photo, Inc. v.
Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). The
district court held it could not exercise personal jurisdiction
over ATR consistent with federal due process. We agree.
A. Personal Jurisdiction Over ATR
It is well established that the Fourteenth Amendment’s
Due Process Clause limits the power of a state’s courts to
exercise jurisdiction over defendants who do not consent to
jurisdiction. Goodyear Dunlop Tires Operations, S.A. v.
Brown, 131 S. Ct. 2846, 2850 (2011). There are two kinds of
personal jurisdiction that a state’s courts may exercise over an
out-of-state defendant. Id. at 2851. The first, known as
“specific jurisdiction,” exists when a case “aris[es] out of or
relate[s] to the defendant’s contacts with the forum.”
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 414 n.8 (1984); see Daimler, 134 S. Ct. at 755
(observing that “specific jurisdiction has become the
centerpiece of modern jurisdiction theory” (quoting
Goodyear, 131 S. Ct. at 2854) (internal quotation marks
8 MARTINEZ V. AERO CARIBBEAN
omitted)). The second, known as “general jurisdiction,”
allows “a defendant to be haled into court in the forum state
to answer for any of its activities anywhere in the world.”
Schwarzenegger, 374 F.3d at 801. General jurisdiction over
a corporation is appropriate only when the corporation’s
contacts with the forum state “are so constant and pervasive
as to render it essentially at home” in the state. Daimler,
134 S. Ct. at 751 (quoting Goodyear, 131 S. Ct. at 2851)
(internal quotation marks and alteration omitted).
Although the terms “specific” and “general” jurisdiction
were not adopted by the Supreme Court until fairly recently,
these two kinds of personal jurisdiction can be traced back to
the Court’s decision in International Shoe Co. v. Washington,
326 U.S. 310 (1945). International Shoe reconceptualized
the Court’s earlier approach to personal jurisdiction, most
famously described in Pennoyer v. Neff, 95 U.S. 714 (1878),
which generally limited a court’s jurisdiction to “the
geographic bounds of the forum.” Daimler, 134 S. Ct. at 753.
“[S]purred by ‘changes in the technology of transportation
and communication, and the tremendous growth of interstate
business activity,’” the Court in International Shoe developed
a new concept of contacts-based jurisdiction as a flexible and
context-specific alternative to Pennoyer’s focus on a
defendant’s physical presence within the forum. Id. at 753
(quoting Burnham, 495 U.S. at 617 (opinion of Scalia, J.));
see also Burnham, 495 U.S. at 619 (observing that
International Shoe developed its approach “by analogy to
‘physical presence’” (emphasis omitted)).
International Shoe’s contacts-based approach to personal
jurisdiction supplemented Pennoyer’s approach but did not
entirely supplant it. In Burnham, the Court held that
Pennoyer’s category of “jurisdiction based on physical
MARTINEZ V. AERO CARIBBEAN 9
presence alone” survived International Shoe as an
independent basis for personal jurisdiction, at least for natural
persons. Burnham, 495 U.S. at 619. The defendant in
Burnham was a New Jersey resident personally served with
a divorce petition while visiting his children in California.
No part of the divorce proceedings arose out of the
defendant’s California contacts. See id. at 608. The Court
nevertheless held that California’s courts could exercise
general personal jurisdiction over the defendant. The Court
reaffirmed the historical rule that “personal service upon a
physically present defendant suffice[s] to confer jurisdiction,
without regard to whether the defendant was only briefly in
the State or whether the cause of action was related to his
activities there.” Id. at 612. This kind of jurisdiction is often
known as “tag jurisdiction.”
Relying on Burnham, plaintiffs argue that in-state service
of process on a corporate officer who is acting on behalf of
the corporation at the time of service creates tag jurisdiction
over the corporation. That is, they contend that their service
on ATR’s vice president of marketing while he was in
California gave the district court general personal jurisdiction
over ATR. We disagree.
Burnham was a split decision, with no opinion receiving
the support of a majority of the Court. Justice Scalia, in a
plurality opinion joined in full by Chief Justice Rehnquist and
Justice Kennedy and in part by Justice White, concluded that
tag jurisdiction satisfied due process because it accorded with
the “firmly established” historical principle that “the courts
of a State have jurisdiction over nonresidents who are
physically present in the State.” Id. at 610. Justice Brennan,
joined by Justices Marshall, Blackmun, and O’Connor, did
not approve tag jurisdiction based on its historical pedigree.
10 MARTINEZ V. AERO CARIBBEAN
Rather, he believed that it should be tested against
“contemporary notions of due process.” Id. at 630 (Brennan,
J., concurring in the judgment). Under this test, Justice
Brennan concluded that “as a rule” tag jurisdiction satisfies
due process. Id. at 639. Justices White and Stevens
concurred separately in terse, somewhat enigmatic opinions.
Id. at 628 (White, J., concurring in part and concurring in the
judgment); id. at 640 (Stevens, J., concurring in the
judgment).
None of the various opinions in Burnham discussed tag
jurisdiction with respect to artificial persons. Physical
presence is a simple concept for natural persons, who are
present in a single, ascertainable place. This is not so for
corporations, which can only act through their agents and can
do so in many places simultaneously. See Int’l Shoe,
326 U.S. at 316–17. Natural persons can be present in a state
both physically and through their contacts with the state.
Corporations, on the other hand, can be present only through
their contacts:
Since the corporate personality is a fiction . . .
it is clear that unlike an individual its
‘presence’ . . . can be manifested only by
activities carried on in its behalf by those who
are authorized to act for it. . . . [T]he terms
‘present’ or ‘presence’ are used merely to
symbolize those activities of the corporation’s
agent within the state which courts will deem
to be sufficient to satisfy the demands of due
process. Those demands may be met by such
contacts of the corporation with the state of
the forum as make it reasonable . . . to require
MARTINEZ V. AERO CARIBBEAN 11
the corporation to defend the particular suit
which is brought there.
Int’l Shoe, 326 U.S. at 316–17 (citations omitted). As a
result, corporations “have never fitted comfortably in a
jurisdictional regime based primarily upon ‘de facto power
over the defendant’s person.’” Burnham, 495 U.S. at 610 n.1
(opinion of Scalia, J.) (quoting Int’l Shoe, 326 U.S. at 316).
An officer of a corporation is not the corporation, even
when the officer acts on the corporation’s behalf. See
1 William Meade Fletcher, Cyclopedia of the Law of
Corporations § 25 (Supp. 2011) (“The corporation and its
directors and officers are . . . not the same personality.”); id.
§ 30 (“A corporation is a distinct legal entity that can act only
through its agents.”). While a corporation may in some
abstract sense be “present” wherever its officers do business,
such presence is not physical in the way contemplated by
Burnham. See Burnham, 495 U.S. at 617–19 (distinguishing
the physical presence required for tag jurisdiction from the
“purely fictional” concept of constructive “presence” through
business contacts).
On the assumption that tag jurisdiction exists only over
natural persons who are physically present in a forum state,
International Shoe indicates that a corporation may be subject
to personal jurisdiction only when its contacts with the forum
support either specific or general jurisdiction. In the almost
seventy years since International Shoe, the Supreme Court
has never suggested anything else. See Goodyear, 131 S. Ct.
at 2853 (noting that “International Shoe classified cases
involving out-of-state corporate defendants” into two
categories: specific and general jurisdiction). To the
contrary, the Court has required an analysis of a corporation’s
12 MARTINEZ V. AERO CARIBBEAN
contacts with the forum state even when tag jurisdiction, if
available, would have made such analysis unnecessary.
In Perkins v. Benguet Consolidated Mining Co., 342 U.S.
437, 447–48 (1952), the Court held that Ohio could exercise
general jurisdiction over a Philippines company that, during
World War II, directed the bulk of its operations from Ohio.
See Daimler, 134 S. Ct. at 755–56 (summarizing Perkins).
The plaintiffs personally served the company’s president in
Ohio. Perkins, 342 U.S. at 439–40. If tag jurisdiction had
been available, that alone would have resolved the case. But
the Court upheld jurisdiction only after deciding whether “the
business done in Ohio . . . was sufficiently substantial” to
allow jurisdiction over claims unrelated to the company’s
Ohio contacts. Id. at 447. Cases decided after Burnham have
consistently understood Perkins as relying on the extent of
the company’s contacts with Ohio, not on the in-state service
on the company’s president. See, e.g., Daimler, 134 S. Ct. at
755, 756 n.8 (describing Perkins as “the textbook case of
general jurisdiction” and identifying “the point on which
[Perkins] turned: All of [the company’s] activities were
directed by the company’s president from within Ohio”).
Nor has our court ever indicated that Burnham applies to
corporations. In Chan v. Society Expeditions, Inc., 39 F.3d
1398 (9th Cir. 1994), the plaintiffs were injured while
traveling on a cruise ship. They sued the ship’s operator, a
German corporation, in federal district court in Washington
State. Id. at 1401–02. They personally served the
corporation’s president and sole owner in Washington. We
held that service was effective under the Federal Rules of
Civil Procedure. Id. at 1404. In response to the defendant’s
argument that Burnham did not authorize service, we
MARTINEZ V. AERO CARIBBEAN 13
distinguished between the effectiveness of service and the
exercise of personal jurisdiction. We wrote:
[The defendant] argues that the rule allowing
transient or “tag” jurisdiction was never
adopted in the context of a corporation. . . .
While it is true that a corporate defendant
does not submit to jurisdiction by one of its
officers voluntarily entering a state, this
situation is not what is at issue here. We hold
only that service of process . . . is effective in
this instance, not that plaintiffs generally can
acquire personal jurisdiction over corporate
defendants by serving the persons who happen
to own the corporation.
Id. at 1404 n.8 (citation omitted). We then remanded to the
district court to determine whether the corporation’s contacts
with Washington were sufficient to authorize personal
jurisdiction. Id. at 1404–06. Remand would have been
unnecessary had tag jurisdiction existed over the corporation.
See also King v. Am. Family Mut. Ins. Co., 632 F.3d 570, 579
(9th Cir. 2011) (holding that a corporation’s designation of an
agent for in-state service of process does not create general
jurisdiction over the corporation); Wenche Siemer v. Learjet
Acquisition Corp., 966 F.2d 179, 182–83 (5th Cir. 1992)
(holding that Burnham did not authorize tag jurisdiction
based on in-state service on a corporation’s registered agent).
Of the other federal courts of appeals, only two have
reached decisions arguably contrary to ours. In Northern
Light Technology, Inc. v. Northern Lights Club, 236 F.3d 57
(1st Cir. 2001), the First Circuit stated in a footnote that
service on a corporation’s president conferred general
14 MARTINEZ V. AERO CARIBBEAN
personal jurisdiction over the corporation. Id. at 63 n.10.
The court did not explain its decision or cite any supporting
cases. Id. In First American Corp. v. Price Waterhouse LLP,
154 F.3d 16 (2d Cir. 1998), the Second Circuit allowed
general jurisdiction over a partnership based on in-state
service on one of its partners. Id. at 19–21. We need not
decide here whether we agree with the court’s holding in
First American, for partnerships differ from corporations in
the important respect that “a partnership (unlike a
corporation) has no separate existence” from its partners. Id.
at 19.
In sum, personal jurisdiction exists over ATR only if
ATR’s contacts with California support either specific or
general jurisdiction. Plaintiffs do not argue that specific
jurisdiction exists over ATR, given that no part of their
lawsuit “aris[es] out of or relate[s] to” ATR’s contacts with
California. Helicopteros, 466 U.S. at 414 n.8. Instead, as an
alternative to tag jurisdiction, plaintiffs argue that ATR’s
contacts with California are so extensive that they create
general jurisdiction. Plaintiffs rely on five sets of contacts:
(1) ATR’s contracts, “worth between $225 and $450 million,”
to sell airplanes to Air Lease Corp., a California corporation;
(2) ATR’s contracts with eleven California component
suppliers; (3) ATR’s sending of representatives to California
to attend industry conferences, promote ATR products, and
meet with suppliers; (4) Empire Airlines’ use of ATR
airplanes in its California route; and (5) ATR’s advertising in
trade publications with distribution in California. These
contacts are plainly insufficient to subject ATR to general
jurisdiction in California.
The Supreme Court’s recent decision in Daimler makes
clear the demanding nature of the standard for general
MARTINEZ V. AERO CARIBBEAN 15
personal jurisdiction over a corporation. In Daimler, the
Court held that DaimlerChrysler Aktiengesellschaft
(“Daimler”), a German corporation, was not subject to
general jurisdiction in California based on the California
contacts of its subsidiary, Mercedes–Benz USA (“MBUSA”).
Daimler, 134 S. Ct. at 750–51. MBUSA, a Delaware
corporation, is Daimler’s exclusive importer and distributor
for the United States. Its principal place of business is in
New Jersey, but it has multiple facilities in California and is
“the largest supplier of luxury vehicles to the California
market. . . . MBUSA’s California sales account for 2.4% of
Daimler’s worldwide sales.” Id. at 752. The Court assumed
that MBUSA would be subject to general jurisdiction in
California and that MBUSA’s California contacts could be
imputed to Daimler, but it still held that Daimler’s contacts
with California were not “so constant and pervasive as to
render [it] essentially at home” in California. Id. at 751
(internal quotation marks omitted) (alteration in original).
The Court in Daimler rejected the plaintiffs’ argument,
also pressed by plaintiffs here, that general jurisdiction is
appropriate whenever a corporation “engages in a substantial,
continuous, and systematic course of business” in a state. Id.
at 761 (internal quotation marks omitted). It emphasized that
the “paradigm” fora for general jurisdiction are a
corporation’s place of incorporation and principal place of
business. Id. at 760 (internal quotation marks omitted). Only
in an “exceptional case” will general jurisdiction be available
anywhere else. Id. at 761 n.19.
This is not such an exceptional case. ATR is organized
and has its principal place of business in France. It has no
offices, staff, or other physical presence in California, and it
is not licensed to do business in the state. See Mavrix Photo,
16 MARTINEZ V. AERO CARIBBEAN
647 F.3d at 1225. Its California contacts are minor compared
to its other worldwide contacts. See Daimler, 134 S. Ct. at
762 n.20 (“General jurisdiction . . . calls for an appraisal of a
corporation’s activities in their entirety, nationwide and
worldwide. A corporation that operates in many places can
scarcely be deemed at home in all of them.”).
B. Plaintiffs’ Request for Additional Discovery
The district court did not abuse its discretion in denying
plaintiffs’ request for additional jurisdictional discovery
about ATR North America. It is apparent that nothing
plaintiffs could discover about ATR North America’s
contacts with California would make ATR “essentially at
home” in California. See id. at 760–62. “[A] refusal [to grant
discovery] is not an abuse of discretion when it is clear that
further discovery would not demonstrate facts sufficient to
constitute a basis for jurisdiction.” Wells Fargo & Co. v.
Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir.
1977).
Conclusion
We hold that ATR is not subject to personal jurisdiction
in California. Burnham does not authorize tag jurisdiction
over corporations, and ATR’s contacts with California are
insufficient to support general jurisdiction. Additional
jurisdictional discovery would be futile. We affirm the
district court’s dismissal of plaintiffs’ claims against ATR for
lack of personal jurisdiction.
AFFIRMED.