SER Ford Motor Co. v. Hon. Warren R. McGraw, Judge

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2016 Term

FILED
May 18, 2016
released at 3:00 p.m.
No. 15-1149 RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

STATE OF WEST VIRGINIA EX REL.
FORD MOTOR COMPANY,
Petitioner

V.

HONORABLE WARREN R. MCGRAW,
JUDGE OF THE CIRCUIT COURT OF WYOMING COUNTY; AND

DANNY S. WELLMAN, ADMINISTRATOR OF THE ESTATE OF

JARRED S. WELLMAN,

Respondents

Petition for Writ of Prohibition

WRIT GRANTED AS MOULDED

Submitted: April 6, 2016
Filed: May 18, 2016

Jonathan D. Hacker Patrick E. McFarland
Pro Hac Vice Patrick E. McFarland, PLLC
Bradley N. Garcia Parkersburg, West Virginia
O’Melveny & Myers, LLP Christopher J. Heavens
Washington, D.C. Heavens Law Firm, PLLC
Michael Bonasso Charleston, West Virginia
Elizabeth L. Taylor Jamie D. Jackson
Mitchell B. Tuggle Pro Hac Vice
Flaherty, Sensabaugh, Bonasso, PLLC Atlee Hall, PLLC
Charleston, West Virginia Lancaster, Pennsylvania
Attorneys for the Petitioner Attorneys for the Respondent,
Danny S. Wellman

Christopher L. Slaughter
Steptoe & Johnson, PLLC
Huntington, West Virginia
Attorney for Amicus Curiae,
West Virginia Chamber of Commerce

Todd S. Wiseman
The Wiseman Law Firm
Vienna, West Virginia
Attorney for Amicus Curiae,
The Center for Auto Safety

L. Lee Javins, II
Bailey, Javins & Carter, LC
Charleston, West Virginia
Attorney for Amicus Curiae,
The Attorneys Information Exchange Group

JUSTICE DAVIS delivered the Opinion of the Court.
 SYLLABUS BY THE COURT

1. “When a court is attempting to proceed in a cause without jurisdiction,

prohibition will issue as a matter of right regardless of the existence of other remedies.”

Syllabus point 10, Jennings v. McDougle, 83 W. Va. 186, 98 S.E. 162 (1919).

2. “‘“‘The standard of jurisdictional due process is that a foreign

corporation must have such minimum contacts with the state of the forum that the

maintenance of an action in the forum does not offend traditional notions of fair play and

substantial justice.’ Syllabus Point 1, Hodge v. Sands Manufacturing Co., 151 W. Va. 133,

150 S.E.2d 793 (1966).” Syllabus point 1, Hill by Hill v. Showa Denko, K.K., 188 W. Va.

654, 425 S.E.2d 609 (1992), cert. denied, [508] U.S. [908], 113 S. Ct. 2338, 124 L. Ed. 2d

249 (1993).’ Syl. pt. 1, Norfolk Southern Ry. Co. v. Maynard, 190 W. Va. 113, 437 S.E.2d

277 (1993).” Syllabus Point 6, State ex rel. Bell Atlantic-West Virginia, Inc. v. Ranson, 201

W. Va. 402, 497 S.E.2d 755 (1997).

3. “A court must use a two-step approach when analyzing whether personal

jurisdiction exists over a foreign corporation or other nonresident. The first step involves

determining whether the defendant’s actions satisfy our personal jurisdiction statutes set forth

in W. Va. Code, 31-1-15 [2015] and W. Va. Code, 56-3-33 [2012]. The second step involves

i
determining whether the defendant’s contacts with the forum state satisfy federal due

process.” Syllabus point 5, Abbott v. Owens-Corning Fiberglass Corp., 191 W. Va. 198, 444

S.E.2d 285 (1994), superseded by statute on other grounds as stated in State ex rel. Ford

Motor Co. v. Nibert, 235 W. Va. 235, 773 S.E.2d 1 (2015).

4. “The Due Process Clause of the Fourteenth Amendment to the United

States Constitution operates to limit the jurisdiction of a state court to enter a judgment

affecting the rights or interests of a nonresident defendant. This due process limitation

requires a state court to have personal jurisdiction over the nonresident defendant.” Syllabus

point 1, Pries v. Watt, 186 W. Va. 49, 410 S.E.2d 285 (1991).

5. A court may assert general personal jurisdiction over a nonresident

corporate defendant to hear any and all claims against it when the corporation’s affiliations

with the State are so substantial, continuous, and systematic as to render the nonresident

corporate defendant essentially at home in the State.

6. “When a defendant files a motion to dismiss for lack of personal

jurisdiction under W. Va. R. Civ. P. 12(b)(2), the circuit court may rule on the motion upon

the pleadings, affidavits and other documentary evidence or the court may permit discovery

to aid in its decision. At this stage, the party asserting jurisdiction need only make a prima

ii
facie showing of personal jurisdiction in order to survive the motion to dismiss. In

determining whether a party has made a prima facie showing of personal jurisdiction, the

court must view the allegations in the light most favorable to such party, drawing all

inferences in favor of jurisdiction. If, however, the court conducts a pretrial evidentiary

hearing on the motion, or if the personal jurisdiction issue is litigated at trial, the party

asserting jurisdiction must prove jurisdiction by a preponderance of the evidence.” Syllabus

point 4, State ex rel. Bell Atlantic-West Virginia, Inc. v. Ranson, 201 W. Va. 402, 497 S.E.2d

755 (1997).

7. “Personal jurisdiction premised on the placement of a product into the

stream of commerce is consistent with the Due Process Clause and can be exercised without

the need to show additional conduct by the defendant aimed at the forum state.” Syllabus

point 2, in part, Hill by Hill v. Showa Denko, K.K., 188 W. Va. 654, 425 S.E. 2d 609 (1992).

8. A court may assert specific personal jurisdiction over a nonresident

defendant to hear claims against the defendant arising out of or relating to the defendant’s

contacts or activities in the state by which the defendant purposefully avails itself of

conducting activities in the state so long as the exercise of jurisdiction is constitutionally fair

and reasonable.

iii
 9. The purposeful availment requirement of specific personal jurisdiction

ensures that a defendant will not be haled into a jurisdiction as a result of isolated, fortuitous,

or random acts.

10. The specific personal jurisdiction fairness and reasonableness inquiry

may, in appropriate cases, include, but is not limited to, considering the burden on the

defendant, the interests of the state, the interest of the plaintiff in obtaining relief, the

interstate judicial system’s interest in obtaining efficient resolution of controversies, and the

shared interests of states in furthering fundamental substantive social policies. The analysis

is case specific, and all factors need not be present in all cases.

iv
Davis, Justice:

The petitioner herein and defendant below, Ford Motor Company (“Ford”),

requests this Court to issue a writ of prohibition to prevent the enforcement of orders entered

October 5 and 21, 2015, by the Circuit Court of Wyoming County and to dismiss Ford from

the underlying civil action. By those orders, the circuit court denied Ford’s motion to dismiss

the underlying complaint against it for lack of personal jurisdiction. Before this Court, Ford

contends the circuit court erred by refusing to dismiss it from the litigation because Ford is

a nonresident corporation over which the circuit court lacks personal jurisdiction.

Upon a review of the petition; the response of the respondent and plaintiff

below, Danny S. Wellman, Administrator of the Estate of Jarred S. Wellman, Deceased; the

record; and the pertinent authorities, we grant the requested writ of prohibition, as moulded,

and remand this case to the Circuit Court of Wyoming County for further proceedings

consistent with this opinion.1

1
We acknowledge the valuable contribution of amici West Virginia Chamber
of Commerce, The Center for Auto Safety, and The Attorney’s Information Exchange Group
who submitted briefs to this Court.

1

 I.

FACTUAL AND PROCEDURAL HISTORY

Jarred Wellman, a West Virginia resident, was killed on March 4, 2013, in a

one-car roll-over crash near Ghent, West Virginia. He was operating a 2002 Ford Explorer.

It is alleged that, during the crash, the Ford Explorer’s safety seatbelt released webbing, the

roof crushed, the driver’s window shattered out, and Jarred Wellman was partially ejected

from the vehicle such that his head and upper torso struck the pavement resulting in his death

due to head trauma.

The Ford Explorer was assembled at Ford’s manufacturing facility in

Louisville, Kentucky. It was sold to Sunrise Ford Company (“Sunrise”) in Fort Pierce,

Florida. The Ford Explorer arrived at Sunrise on December 19, 2001. Sunrise sold it to a

Florida resident on January 21, 2002. Ramey Automotive Group, Inc. (“Ramey”) in Beckley,

West Virginia, acquired the Ford Explorer with 67,017 miles in May 2009 and offered it for

sale. Ramey performed safety inspections, engine checks, battery system checks, engine

electrical checks, accessory installations, and other services on the Ford Explorer during

2009 and 2010. MacArthur Auto Body & Repair Shop (“MacArthur”) in Beckley, West

Virginia, purchased the Ford Explorer from Ramey. Jarred Wellman purchased the Ford

Explorer from MacArthur.

2

 The respondent herein and plaintiff below is Danny S. Wellman (“Mr.

Wellman”), the father and administrator of the estate of Jarred Wellman. Mr. Wellman is a

West Virginia resident. Mr. Wellman filed a complaint in the Circuit Court of Wyoming

County asserting causes of action grounded in claims of product liability, negligence, and

breach of warranty against Ford Motor Company and Ramey.

Ford was served with the summons and the complaint on February 10, 2015.

Ford removed the case to the United States District Court for the Southern District of West

Virginia and reserved the right to challenge personal jurisdiction. On March 31, 2015, Mr.

Wellman filed a motion to remand the action to the Circuit Court of Wyoming County. On

June 5, 2015, the federal district court entered an order granting the motion for a remand.

The remand was stayed pending a determination of attorney’s fees and costs incurred as a

result of the improvident removal. On September 11, 2015, a second order was entered by

the federal district court whereby the stay was lifted, the case was remanded, and the issue

of attorney’s fees and costs was reserved. During the period of time between the two orders

of the federal district court, Mr. Wellman and Ford negotiated regarding various discovery

matters, protocols, stipulations, and confidentiality issues. The two parties also negotiated

and agreed to a protocol for a vehicle inspection which governed an inspection of the Ford

Explorer that took place in August 2015.

3

 The federal district court order lifting the stay and remanding the action was

filed in Wyoming County Circuit Court on September 18, 2015. Thereafter, a Stipulated

Sharing and Non-Sharing Protective Order and a Stipulation and Order Regarding Access

to www.Forddocs.com, were signed by the trial court judge on September 16, 2015, and filed

by the clerk of the court on September 21, 2015. A Notice of Scheduling Conference was

entered on September 22, 2015. On September 23, 2015, Ford filed a Motion to Dismiss for

Lack of Personal Jurisdiction with an accompanying memorandum of law and supporting

affidavits from a Ford franchise strategy manager and a Ford retail communications manager.

The motion to dismiss was noticed for a hearing to be held on October 28, 2015.

On October 5, 2015, prior to the time that Mr. Wellman’s response in

opposition to the motion to dismiss was due and prior to the scheduled hearing on the motion,

the trial court entered a one paragraph order denying Ford’s motion to dismiss. On October

15, 2015, Ford submitted a motion requesting that the trial court issue an order with findings

of fact and conclusions of law so that it could proceed to file a writ of prohibition with this

Court to challenge the exercise of personal jurisdiction as to Ford. Ford also requested that

the trial court stay further proceedings pending resolution of the writ of prohibition.2

2
The trial court granted Ford’s motion to stay by order entered October 21,
2015.

4

 Again, without a hearing and with no opportunity provided to Mr. Wellman to

respond or to submit material to make a record, on October 21, 2015, the trial court entered

its Order Setting Forth Findings of Fact and Conclusions of Law that Support the Court’s

Order Denying Motion to Dismiss. As to findings of fact, the trial court, among other things,

found that “Ford Motor Company is a global operation,” Ford manufactured the vehicle

involved, and Ford “essentially claims” that it does not do business in West Virginia.

Regarding conclusions of law, the trial court found that, based upon the judicial

history of the litigation, granting the motion to dismiss would “effectively deprive” Mr.

Wellman of his constitutional right of access to open courts for injury done to him. The trial

court cited to Article 3, section 17 of the Constitution of West Virginia which provides that

“[t]he courts of this State shall be open, and every person, for an injury done to him in his

person, property or reputation, shall have remedy by due course of law; and justice shall be

administered without sale, denial or delay.” Also cited in support of the denial of the motion

to dismiss was the Due Process Clause of the Constitution of West Virginia, Article 3,

section 10, which provides that “[n]o person shall be deprived of life, liberty, or property,

without due process of law, and the judgment of his peers.”

Further, the order provided that to interpret the Constitution to allow summary

dismissal of a claim “based upon some complex and intricate interpretation of the law”

5

would violate the intent of the Constitution to guarantee the right to have one’s case heard

in court and decided by one’s peers. The trial court concluded that it is the “ultimate

absurdity” to suggest that Ford, the leading automobile manufacturer in the United States for

more than a century, does not do business in West Virginia. The order provided that “[t]o

hold Ford Motor Company does not do business in West Virginia to a sufficient degree to

be ‘at home’ in West Virginia and be required to respond in our courts meets the ultimate

[absurdity] definition from Black’s Law Dictionary. . . .” Finally, the trial court concluded

that “[t]he Ford emblem and logo, which may have existed for well over one-hundred years,

is notably proper for the world’s leading manufacturer of automobiles in that it is a globe of

the world. . . .” From this adverse ruling, Ford seeks extraordinary relief from this Court to

prohibit the trial court from enforcing its order.

II.

STANDARD FOR ISSUANCE OF WRIT

This Court has original jurisdiction in prohibition proceedings pursuant to

Article VIII, section 3 of the Constitution of West Virginia. That original jurisdiction is

recognized in Rule 16 of the West Virginia Rules of Appellate Procedure and by West

Virginia Code §§ 51-1-3 (1923) (Repl. Vol. 2008) and 53-1-2 (1933) (Repl. Vol. 2008). “A

writ of prohibition ‘lies as a matter of right whenever the inferior court (a) has [no]

jurisdiction or (b) has jurisdiction but exceeds its legitimate powers. . . .’” State ex rel.

6

Farber v. Mazzone, 213 W. Va. 661, 664, 584 S.E.2d 517, 520 (2003) (quoting State ex rel.

Valley Distrib., Inc. v. Oakley, 153 W. Va. 94, 99, 168 S.E.2d 532, 535 (1969)). As this

Court specified in Syllabus point 10 of Jennings v. McDougle, 83 W. Va. 186, 98 S.E. 162

(1919), “[w]hen a court is attempting to proceed in a cause without jurisdiction, prohibition

will issue as a matter of right regardless of the existence of other remedies.” However, relief

in prohibition is inappropriate where jurisdiction turns on contested issues of fact. See

Health Mgmt., Inc. v. Lindell, 207 W. Va. 68, 72, 528 S.E.2d 762, 766 (1999); Lewis v.

Fisher, 114 W. Va. 151, 154, 171 S.E. 106, 107 (1933).

The pivotal issue in the case sub judice is whether Ford is subject to the

jurisdiction of the courts of this State. “Where a court lacks jurisdiction over a nonresident

defendant, prohibition is the appropriate remedy to prevent further prosecution of the suit.”

Pries v. Watt, 186 W. Va. 49, 53, 410 S.E.2d 285, 289 (1991). See also Norfolk S. Ry. Co.

v. Maynard, 190 W. Va. 113, 120, 437 S.E.2d 277, 284 (1993) (observing that writ of

prohibition is traditional method used in challenge to denial of motion to dismiss for lack of

personal jurisdiction). This Court has explained:

“‘“The standard of jurisdictional due process is that a
foreign corporation must have such minimum contacts with the
state of the forum that the maintenance of an action in the forum
does not offend traditional notions of fair play and substantial
justice.” Syllabus Point 1, Hodge v. Sands Manufacturing Co.,
151 W. Va. 133, 150 S.E.2d 793 (1966).’ Syllabus Point 1, Hill
by Hill v. Showa Denko, K.K., 188 W. Va. 654, 425 S.E.2d 609
(1992), cert. denied, [508] U.S. [908], 113 S.Ct. 2338,

7

 124 L. Ed. 2d 249 (1993).” Syl. pt. 1, Norfolk Southern Ry. Co.
v. Maynard, 190 W. Va. 113, 437 S.E.2d 277 (1993).

Syl. pt. 6, State ex rel. Bell Atl.-W. Va., Inc. v. Ranson, 201 W. Va. 402, 497 S.E.2d 755

(1997).

Generally, this Court reviews findings of fact for clear error and conclusions

of law de novo. Ostensible findings of fact, which entail application of law or constitute

legal judgments that transcend ordinary factual findings, must be reviewed de novo. See Syl.

pt. 1, State ex rel. Cooper v. Caperton, 196 W. Va. 209, 470 S.E.2d 162 (1996). Guided by

these standards, we proceed to consider the parties’ arguments.

III.

DISCUSSION

Ford, a Delaware corporation with its principal place of business in Michigan,

seeks to prohibit enforcement of the trial court’s orders of October 5 and 21, 2015, which

denied Ford’s motion to dismiss for lack of personal jurisdiction.

In Syllabus point 5 of Abbott v. Owens-Corning Fiberglass Corp., 191 W. Va.

198, 444 S.E. 2d 285 (1994), superseded by statute on other grounds as stated in State ex rel.

Ford Motor Co. v. Nibert, 235 W. Va. 235, 773 S.E.2d 1 (2015), this Court, relying, in part,

8

on World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 290, 100 S. Ct. 559, 563, 62

L. Ed. 2d 490 (1980), determined that

[a] court must use a two-step approach when analyzing
whether personal jurisdiction exists over a foreign corporation
or other nonresident. The first step involves determining
whether the defendant’s actions satisfy our personal jurisdiction
statutes set forth in W.Va.Code, 31-1-15 [2015] and W.Va.Code,
56-3-33 [2012]. The second step involves determining whether
the defendant’s contacts with the forum state satisfy federal due
process.

Syl. pt. 5, Abbott, 191 W. Va. 198, 444 S.E.2d 285. In accordance with this holding, we

begin our analysis of this case with an examination of West Virginia’s long arm statutes. We

then undertake an analysis of personal jurisdiction in the context of due process, which will

include discussions of both general and specific jurisdiction. Finally, we will address the

question of whether Ford consented to jurisdiction.

A. West Virginia Long Arm Statute

The State’s primary long-arm statute, W. Va. Code § 56-3-33(a) (2008) (Repl.

Vol. 2012), confers in personam jurisdiction on a nonresident who engages in any one of

seven acts enumerated therein:

(1) Transacting any business in this State;

(2) Contracting to supply services or things in this State;

(3) Causing tortious injury by an act or omission in this State;

9

 (4) Causing tortious injury in this State by an act or omission
outside this State if he or she 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;

(5) Causing injury in this State to any person by breach of
warranty expressly or impliedly made in the sale of goods
outside this state when he or she might reasonably have
expected such person to use, consume or be affected by the
goods in this State: Provided, That he or she also 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;

(6) Having an interest in, using or possessing real property in
this State; or

(7) Contracting to insure any person, property or risk located
within this State at the time of contracting.

West Virginia’s second long-arm statute, W. Va. Code § 31D-15-1501(d)

(2008) (Repl. Vol. 2015), is more narrow in that it applies to for-profit corporations that are

incorporated under a law other than the law of West Virginia. For purposes of asserting

jurisdiction, the statute specifies that a foreign corporation will be deemed to be transacting

business in West Virginia if the following is met:

(1) The corporation makes a contract to be performed, in whole
or in part, by any party thereto in this State;

(2) The corporation commits a tort, in whole or in part, in this
State; or

10

 (3) The corporation manufactures, sells, offers for sale or
supplies any product in a defective condition and that product
causes injury to any person or property within this State
notwithstanding the fact that the corporation had no agents,
servants or employees or contacts within this State at the time of
the injury.

The trial court order made no mention of either of these long-arm statutes.

Ford addresses the long-arm statutes only in passing and does not appear to challenge the

initial applicability of the statutes.

Mr. Wellman bears the burden of establishing personal jurisdiction over Ford.

E.g., State ex rel. Bell Atl.-W. Va. v. Ranson, 201 W. Va. at 414, 497 S.E.2d at 767. There

must be a prima facie showing of jurisdiction, and the allegations in the pleadings must be

viewed in the light most favorable to the plaintiff. E.g., Lane v. Boston Sci. Corp., 198

W. Va. 447, 452, 481 S.E.2d 753, 758 (1996). The complaint at issue alleges that Ford

submitted itself to jurisdiction by several acts including: (1) committing a tortious act in the

State by selling and/or delivering a defective motor vehicle or its component parts for

placement into the West Virginia stream of commerce for ultimate users; (2) manufacturing,

testing, selling, distributing, assembling, and servicing Ford autos and component parts to

or for persons, firms, and/or corporations in West Virginia through its distributors,

wholesalers, and brokers when the Ford vehicles were used by West Virginia consumers in

the ordinary course of business; (3) causing the injuries to Jarred Wellman by its acts or

11

omissions; (4) engaging in the solicitation of activities in West Virginia to promote the sale,

consumption, use, maintenance, distribution, assembly, and repair of Ford vehicles, including

the 2002 Ford Explorer driven by Jarred Wellman; and (5) manufacturing, testing, selling,

distributing, or assembling Ford vehicles and component parts, including the 2002 Ford

Explorer, with knowledge or reason to foresee that Ford vehicles would be shipped in

interstate commerce and would reach the market of West Virginia users or consumers.

Additionally, Mr. Wellman alleged that Ford transacts business and derives substantial

revenues from business within the State of West Virginia and Wyoming County such that it

is susceptible to personal jurisdiction. Mr. Wellman also asserted that, at the time the Ford

Explorer was introduced into the stream of commerce, it was not merchantable and was not

safe as it was not fit for the particular purpose for which it was intended to be used.

Plainly, Mr. Wellman set forth sufficient allegations in the complaint such that

he asserted a prima facie case of jurisdiction as to Ford in West Virginia under both the

general long-arm statute, W. Va. Code §§ 56-3-33(a)(1)-(5), and the corporation-specific

long-arm statute, W. Va. Code §§ 31D-15-1501(d)(1) and (3). However, this conclusion

does not end the inquiry. The second step requires undertaking an analysis to determine

whether Ford’s contacts with West Virginia are such that the maintenance of the suit does

not offend constitutional due process concerns of fair play and substantial justice.

12

 B. Due Process

The Due Process Clause of the Fourteenth Amendment sets the outer

boundaries of a state court’s authority to proceed against a defendant because the assertion

of jurisdiction subjects defendants to the state’s coercive power. Shaffer v. Heitner, 433 U.S.

186, 216, 97 S. Ct. 2569, 2586, 53 L. Ed. 2d 683 (1977). Personal jurisdiction protects an

individual liberty interest and represents a restriction on judicial power. Insurance Corp. of

Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S. Ct. 2099, 2104, 72

L. Ed. 2d 492 (1982). As this Court has held,

[t]he Due Process Clause of the Fourteenth Amendment
to the United States Constitution operates to limit the
jurisdiction of a state court to enter a judgment affecting the
rights or interests of a nonresident defendant. This due process
limitation requires a state court to have personal jurisdiction
over the nonresident defendant.

Syl. pt. 1, Pries v. Watt, 186 W. Va. 49, 410 S.E2d 285 (1991).

It is well-established that a state may authorize its courts to exercise personal

jurisdiction over an out-of-state defendant if the defendant has “certain minimum contacts

with [the state] such that the maintenance of the suit does not offend ‘traditional notions of

fair play and substantial justice.’” International Shoe v. Washington, 326 U.S. 310, 316,

66 S. Ct. 154, 158, 90 L. Ed. 2d 95 (1945) (citation omitted). The due process standard for

determining whether a court may exercise personal jurisdiction over a nonresident depends

on whether the defendant’s contacts with the forum state provide the basis for the suit. As

13

we discuss in detail below, such personal jurisdiction may be either general or specific.

General jurisdiction, also known as all-purpose jurisdiction, applies in those situations where

the cause of action is distinct from and is not related to a non-resident defendant’s contacts

with a forum. Specific jurisdiction, also known as case-linked jurisdiction, refers to

jurisdiction which arises out of or relates to the defendant’s contacts with a forum. In other

words, general jurisdiction is dispute blind, while specific jurisdiction requires the activities

of the nonresident defendant in the forum be related to or give rise to the liabilities sued on.

At this stage of the litigation, Mr. Wellman attempts to invoke both general and specific

jurisdiction.3 Before individually addressing the concepts of general and specific

jurisdiction, however, we begin by discussing the opinion of the United States Supreme

Court in Daimler AG v. Bauman, ___ U. S. ___, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014),

along with a review of the history of personal jurisdiction.

1. Daimler AG v. Bauman. Ford asserts that, under Daimler AG v. Bauman,

___ U.S.___, 134 S. Ct. 746, 187 L. Ed. 2d 624, it cannot be subjected to general personal

jurisdiction in West Virginia because it has no manufacturing plants, offices, or agents in

West Virginia. Additionally, Ford claims to be wholly independent from the dealers in the

State that sell and service Ford vehicles. The assertion by Ford commands that we consider

3
It is observed that the amici define the case at issue differently. The West
Virginia Chamber of Commerce addresses the issue through the lens of general jurisdiction.
The Center for Auto Safety and The Attorney’s Information Exchange Group analyze the
issue as one involving only specific jurisdiction.

14

the Daimler opinion which, Mr. Wellman argues, did not overrule longstanding precedent

and is distinguishable from the present circumstances.

Daimler involved an unusual fact setting with no connection whatsoever to the

United States. In Daimler, twenty-two Argentinian residents filed a complaint in federal

district court in California against Daimler Chrysler Aktiengesellschaft (“Daimler”), a

German company that manufactures Mercedes-Benz automobiles in Germany. The

complaint alleged that, in the late 1970s and early 1980s, during what is known as

Argentina’s “Dirty War,” Daimler’s Argentinian subsidiary collaborated with state security

forces to kidnap, detain, torture, and kill Argentinian workers at the subsidiary facility.

Jurisdiction in California was predicated on the California contacts of a Daimler subsidiary

incorporated in Delaware with a principal place of business in New Jersey. The subsidiary

distributed vehicles manufactured by Daimler throughout the United States, including

California. California had no connection to the atrocities, the perpetrators of the atrocities,

or the victims. The Argentinian plaintiffs invoked general jurisdiction. The federal district

court dismissed for lack of general personal jurisdiction. Initially, the Ninth Circuit Court

of Appeals affirmed. It subsequently reconsidered and reversed, holding that Daimler had

continuous and systematic contacts with California and that the exercise of personal

jurisdiction would be fair and reasonable.

15

 In an opinion authored by Justice Ginsburg, the United States Supreme Court

held in Daimler that due process did not permit the exercise of general jurisdiction over the

corporation in California. Indeed, the opening sentence of the opinion foreshadowed the

conclusion that jurisdiction would not be appropriate: “This case concerns the authority of

a court in the United States to entertain a claim brought by foreign plaintiffs against a

defendant based on events occurring entirely outside the United States.” Daimler, ___U.S. at

___, 134 S. Ct. at 750, 187 L. Ed. 2d 624. The question presented was stated as “whether the

Due Process Clause of the Fourteenth Amendment precludes the District Court from

exercising jurisdiction over Daimler in this case, given the absence of any California

connection to the atrocities, perpetrators, or victims described in the complaint.” Daimler,

___U.S. at ___, 134 S. Ct. at 751, 187 L. Ed. 2d 624.

The Daimler opinion began with an extensive discussion of the history of

personal jurisdiction beginning with Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1878),

overruled in part, Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977),

which held, in formalistic territorial fashion, that a “tribunal’s jurisdiction over persons

reaches no farther than the geographic bounds of the forum.” Daimler, ___U.S. at ___, 134

S. Ct. at 753, 187 L. Ed. 2d 624. As observed by the Daimler majority, the strict territorial

approach gave way to a less rigid concept that was informed by advances in modern

technology, transportation, communication, and the growth of interstate commerce. Daimler,

16

___U.S. at ___, 134 S. Ct. at 753, 187 L. Ed. 2d 624. International Shoe v. Washington, 326

U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), was cited as the “canonical opinion” regarding

personal jurisdiction. Daimler, ___U.S. at ___, 134 S. Ct. at 754, 187 L. Ed. 2d 624.

As it did the United States Supreme Court, it serves our analysis to recall the

teaching of personal jurisdiction precedent beginning with International Shoe, which

involved an action by the State of Washington to collect payments to the State’s

unemployment fund. International Shoe was a Delaware corporation with a principal place

of business in St. Louis, Missouri. The business was the manufacture and sale of shoes.

International Shoe had no office, maintained no inventory, and made no delivery of goods

in Washington. It had several salesmen in Washington who it claimed were independent.

The salesmen lived in Washington, their activities were confined to Washington, and they

were compensated by commission based on sales. They had a line of samples to display to

potential buyers. Prices were fixed by International Shoe. The salesmen sent orders to St.

Louis, and the items were shipped to buyers with invoice made at the place of shipment.

The State of Washington sent notices of unemployment compensation fund

assessments to the salesmen and copies to International Shoe in St. Louis. International Shoe

appeared before the unemployment office and challenged the assessments on the basis of the

17

lack of personal jurisdiction. The Washington tribunals rejected the challenge, ruling that

the State was entitled to recover the unpaid contributions.

In establishing what plainly continues to be the “canonical opinion” in the area

of personal jurisdiction, the United States Supreme Court rejected the arguments of

International Shoe that its activities in Washington were not sufficient to manifest its

presence there. The Court held that, with respect to a defendant who is not found to be

present in the territory, “due process requires only that . . . he have certain minimum contacts

with it such that the maintenance of the suit does not offend traditional notions of fair play

and substantial justice.” International Shoe, 326 U.S. at 316, 66 S. Ct. at 158, 90 L. Ed. 95.

The activities or contacts with the forum must be such to make it reasonable to require a

corporation to defend in the forum. Id. Furthermore, it was noted that presence in a forum

has never been doubted “when the activities have not only been continuous and systematic,

but also give rise to the liabilities sued on, even though there was no consent to be sued or

authorized agent for service of process.” Id. at 317, 66 S. Ct. at 159, 90 L. Ed. 95. It was

specifically observed that no bright line existed by which activities that justify jurisdiction

and those that do not are easily distinguished. The analysis is not mechanical or quantitative.

Instead, “[w]hether due process is satisfied must depend rather upon the quality and nature

of the activity in relation to the fair and orderly administration of the laws.” Id. at 318, 66

S. Ct. at 159, 90 L. Ed. 95.

18

 As Justice Ginsburg’s opinion in Daimler notes, after International Shoe, “the

relationship among the defendant, the forum, and the litigation, rather than the mutually

exclusive sovereignty of the states on which the rules of Pennoyer rest, became the central

concern of the inquiry into personal jurisdiction.” Daimler, ___U.S. at ___, 134 S. Ct. at

754, 187 L. Ed. 2d 624. Significantly, the Daimler opinion also noted that International

Shoe is the foundation for the two categories of personal jurisdiction. One category of

personal jurisdiction is general which involves “situations where a foreign corporation’s

continuous corporate operations within a state [are] so substantial and of such a nature as to

justify suit against it on causes of action arising from dealings entirely distinct from those

activities.” Daimler, ___U.S. at ___, 134 S. Ct. at 754, 187 L. Ed. 2d 624 (citations omitted).

International Shoe involved an exercise of specific jurisdiction in that the minimum contacts

with the forum gave rise to the asserted causes of action. Daimler, ___U.S. at ___, 134 S. Ct.

at 754, 187 L. Ed. 2d 624. We will further discuss separately the two types of personal

jurisdiction, beginning with general jurisdiction.

2. General Jurisdiction. The Daimler opinion noted that it had addressed

very few general jurisdiction issues since International Shoe. Indeed, it was observed that

the decision in Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S. Ct. 413, 96

L. Ed. 485 (1952), “remains the textbook case of general jurisdiction appropriately exercised

over a foreign corporation that has not consented to suit.” Daimler, ___U.S. at ___, 134

19

S. Ct. at 755-56, 187 L. Ed. 2d 624. In Perkins, the plaintiff was an Ohio resident who sued

Benguet in relation to its alleged failure to issue a stock certificate. The cause of action did

not arise out of anything done in Ohio. Benguet was incorporated in the Philippines where

it owned and operated gold and silver mines. Its operations were halted during the Japanese

occupation of the Philippines. The president, who was also the company’s manager and

principal shareholder, left the Philippines and returned to a home in Ohio. He maintained

an office for personal affairs and kept the files of Benguet in Ohio. He also carried on the

correspondence of Benguet, drew a salary, and paid two secretaries. A bank account was

maintained in Ohio. The activities of Benguet were limited by the occupation. There was

no mining property in Ohio. Benguet had no license to transact business in Ohio and had no

designated agent for service of process. At the time the case was brought, the occupation

was over. The Perkins opinion noted that Benguet’s contacts with Ohio were limited and

indicated that the case took the jurisdictional issue one step further than International Shoe

due to the fact that the cause of action did not arise out of any activities of the corporation

in the forum state. Nevertheless, the Perkins majority found that Ohio could exercise general

jurisdiction over Benguet without offending due process.

Following Perkins, the next general jurisdiction case on point and discussed

in Daimler was Helicopteros Nationales de Columbia, S.A. v. Hall, 466 U.S. 408, 104 S. Ct.

1868, 80 L. Ed. 2d 404 (1984). Helicopteros arose from a helicopter crash in Peru in which

20

four United States citizens were killed. The four were employed by a Peruvian consortium

and were working on a pipeline. A wrongful death suit was brought in Texas state court

against Helicopteros, the owner and operator of a Columbian company. Helicopteros was

not authorized to do business in Texas, had no agent for service of process in Texas,

performed no operations in Texas, sold no products in Texas, solicited no business in Texas,

had no employees in Texas, and had no real or personal property, offices, records, or

shareholders in Texas. Helicopteros’ contacts with Texas were limited to “sending its chief

executive to Houston for a contract-negotiation session; accepting into its New York bank

account checks drawn on a Houston bank; purchasing helicopters, equipment and training

services from [a Texas-based helicopter company] for substantial sums; and sending

personnel to [Texas] for training.” Daimler, ___U.S. at ___, 134 S. Ct. at 757, 187 L. Ed. 2d

624. The parties all agreed that the case did not arise out of and was not related to any of

Helicopteros’ activities in Texas, and, therefore, specific jurisdiction was not applicable. The

Court ultimately held that mere purchases within the forum state were not enough to warrant

the exercise of general personal jurisdiction over a non-resident.

Finally, the Court in Daimler analyzed and relied upon Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011), wherein

the Court found that foreign subsidiaries of a United States parent corporation are not

amenable to suit in state court on claims which were unrelated to any activity of the

21

subsidiaries in the forum state, because they did not have a sufficient affiliation with the

forum state. In Goodyear, a bus carrying young soccer players from North Carolina turned

over on a road outside Paris, France. The bus rollover was attributed to a tire that had failed.

The tire was manufactured in Turkey at the foreign subsidiary of The Goodyear Tire and

Rubber Company (“Goodyear”), an Ohio corporation. The plaintiffs filed suit in North

Carolina and named as defendants Goodyear and its Turkish, French, and Luxembourgian

subsidiaries. The three foreign subsidiaries lacked any affiliation with North Carolina. An

extremely small percentage of specialized tires manufactured by Goodyear’s foreign

subsidiaries for use in such goods as boat and horse trailers made their way into North

Carolina. On that ground, the North Carolina Court of Appeals found that the subsidiaries

were amenable to the general jurisdiction of North Carolina courts.

The United States Supreme Court reversed. It observed that North Carolina

failed to recognize the distinction between case-specific and all-purpose or general

jurisdiction. The Court noted that a defendant placing a product in the stream of commerce

was a factor relevant in an analysis applicable to specific jurisdiction, but did not warrant a

determination that a forum has general jurisdiction in a case unrelated to that activity.

Additionally, the connections were found to be too attenuated to support general jurisdiction

in North Carolina. The decision in Goodyear provided that a court may assert general

jurisdiction over out-of-state corporations only where “their affiliations with the [forum]

22

State are so ‘continuous and systematic’ as to render them essentially at home [there].”

Goodyear, 564 U. S. at 919, 131 S. Ct. at 2851, 180 L. Ed. 2d 796.

With that historical background, the Court in Daimler found that “Daimler’s

slim contacts with the State hardly render it at home there.” Daimler, ___U.S. at ___, 134

S. Ct. at 760, 187 L. Ed. 2d 624. The analysis was not whether the foreign corporation’s

contacts within a forum can be said to be continuous and systematic in some way, but rather,

whether the affiliations with the forum are so continuous and systematic as to render the

corporation at home in the state. Id. Under the facts of the “Argentinian-rooted case,” it

would amount to an “exorbitant exercise” of all-purpose jurisdiction to find Daimler at home

in California. Id. at ___, 134 S. Ct. at 761, 187 L. Ed. 2d 624.

Based upon the foregoing discussion, this Court holds that a court may assert

general personal jurisdiction over a nonresident corporate defendant to hear any and all

claims against it when the corporation’s affiliations with the State are so substantial,

continuous, and systematic as to render the nonresident corporate defendant essentially at

home in the State.

In the instant matter, Ford, citing Daimler, argues that it is not “at home” in

West Virginia and cannot be subjected to general personal jurisdiction in this State. Ford

23

asserts, and offers supporting affidavits to the effect, that it has no manufacturing plants,

offices, or agents in West Virginia. It further claims that it is independent from the Ford

dealers in West Virginia that sell and service Ford vehicles. We note that, while referencing

dealership contracts to argue that it is independent from Ford dealerships in West Virginia,

Ford failed to provide a copy of any such contract for full review and consideration. We

further observe that, in its cross-claim against Ford, Ramey alleges that it is party to a

contract with Ford wherein Ford agreed to provide Ramey with indemnification and a

defense in litigation such as Mr. Wellman’s.

Mr. Wellman looks to the long-standing precedent of Perkins and Helicopteros

to support his argument that Ford is subject to general jurisdiction in West Virginia. It is

argued by Mr. Wellman that Daimler is highly distinguishable from the facts at issue here.

Mr. Wellman also contends that Daimler did not overrule or reject the rules or reasoning of

International Shoe, Perkins, or Helicopteros relating to the assertion of general jurisdiction.

Our analysis of the issue of general jurisdiction leads us to conclude that the

“canonical” principles of International Shoe and the “textbook” case of Perkins were

reaffirmed in Daimler. Specifically, the Daimler opinion does not completely preclude

jurisdiction over corporations outside the paradigm of the state of incorporation and the

principal place of business. Clearly, the place of incorporation and the principal place of

24

business are the exemplar places of general jurisdiction. However, the Daimler Court

explained:

We do not foreclose the possibility that in an exceptional
case, see, e.g., Perkins . . ., a corporations’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 the State. But this case
presents no occasion to explore that question, because Daimler’s
activities in California plainly do not approach that level. It is
one thing to hold a corporation answerable for operations in the
forum State, . . . quite another to expose it to suit on claims
having no connection whatever to the forum State.

Daimler, ___ U.S. at ___ n.19, 134 S. Ct. at 761 n.19, 187 L. Ed. 2d 624 (citations omitted).

To further clarify the general jurisdiction inquiry, the Court in Daimler stated

that the focus is not “solely on the magnitude of the defendant’s in-state contacts.” Daimler,

___ U.S. at ___ n.20, 134 S. Ct. at 762 n.20, 187 L. Ed. 2d 624. Instead, there must be an

“appraisal of a corporation’s activities in their entirety, nationwide and worldwide.” Id. The

point was that general jurisdiction was not merely synonymous with “doing business” tests

that evolved prior to International Shoe and the recognition of specific jurisdiction.

We also observe that the Court in Daimler paid significant attention to the

“transnational context” of the dispute. The Court found that the Ninth Circuit “paid little

heed to the risks to international comity its expansive view of general jurisdiction posed.”

Daimler, ___ U.S. at ___, 134 S. Ct. at 763, 187 L. Ed. 2d 624. The Court remarked that

25

other nations do not share such an expansive view of jurisdiction. The Court gave due

deference and consideration to the information provided by the Solicitor General that the

objections of foreign governments to the approach of the United States to general jurisdiction

had “impeded negotiations of international agreements on the reciprocal recognition and

enforcement of judgments.” Id. Thus, the Court commented that the “considerations of

international rapport” reinforced the determination that subjecting Daimler to general

jurisdiction with respect to a suit on claims having “no connection whatever to the forum

State” would not be in accord with due process demands of “fair play and substantial

justice.” Id.

Notably, Daimler, Goodyear, and Helicopteros all involved international

considerations. Daimler was a German corporation, and every act complained of took place

not only outside California, but also outside the United States. Goodyear involved Turkish,

French, and Luxembourgian entities, and the product defect complained of manifested in

injury in France. There were no corporate affiliations in North Carolina. Similarly,

Helicopteros involved a Columbian company, activities resulting in deaths in Peru, and mere

purchases in Texas that were unrelated to the cause of action.

In the instant matter, we are not confronted with issues of international rapport,

friction, or comity. Additionally, the alleged defect manifested itself in West Virginia and

26

resulted in the death of a West Virginia resident who purchased the allegedly defective

product in West Virginia. Thus, the fact setting is unlike those confronted by the United

States Supreme Court in Daimler, Helicopteros, or Goodyear.

However, we are unable to undertake the kind of analysis required to make a

determination regarding the application of general jurisdiction. The trial court failed to

conduct an appropriate analysis of the issues including the due process requirements relevant

to general jurisdiction. It appears that the trial court applied a “doing business” approach

rather than conducting an appraisal of the nature and substance of Ford’s operations. The

trial court’s order also focused on the plaintiff’s relationship with the forum rather than that

of the defendant. Most concerning is the fact that the trial court “jumped the gun” and

entered orders with no opportunity for Mr. Wellman to respond to the substantive argument,

meet the affidavits of the Ford witnesses, submit material to become part of the record, or

engage in any jurisdictional discovery.

As this Court has established,

[w]hen a defendant files a motion to dismiss for lack of
personal jurisdiction under W. Va. R. Civ. P. 12(b)(2), the
circuit court may rule on the motion upon the pleadings,
affidavits and other documentary evidence or the court may
permit discovery to aid in its decision. At this stage, the party
asserting jurisdiction need only make a prima facie showing of
personal jurisdiction in order to survive the motion to dismiss.
In determining whether a party has made a prima facie showing

27

 of personal jurisdiction, the court must view the allegations in
the light most favorable to such party, drawing all inferences in
favor of jurisdiction. If, however, the court conducts a pretrial
evidentiary hearing on the motion, or if the personal jurisdiction
issue is litigated at trial, the party asserting jurisdiction must
prove jurisdiction by a preponderance of the evidence.

Syl. pt. 4, Bell Atlantic-W. Va., 201 W. Va. 402, 497 S.E.2d 755.

The Court in Bell Atlantic-W. Va. also recognized that, in those instances when

a nonresident defendant files a motion to dismiss challenging personal jurisdiction and offers

“affidavits or depositions, . . . the party resisting such motion may not stand on its pleadings

[but] must come forward with affidavits or other proper evidence detailing specific facts

demonstrating that the court has jurisdiction over the defendant.” Id., 201 W. Va. at 415, 497

S.E.2d at 768 (citations omitted).

The trial court’s orders, entered prior to the time Mr. Wellman was to respond

to the motion to dismiss and prior to the scheduled and noticed hearing on the motion,

deprived Mr. Wellman of any opportunity to “come forward with affidavits or other proper

evidence detailing specific facts demonstrating that the court has jurisdiction over” Ford. Id.

The trial court’s orders are deficient in the conclusory finding that Ford was subject to

jurisdiction. Thus, this Court is confronted with an essentially blank record that does not

afford us the necessary factual information to consider whether the instant case is one in

28

which Ford’s operations in West Virginia are so “continuous and systematic” as to render it

“at home” in West Virginia.

We note that Mr. Wellman has pointed to numerous facts outside the record

that he contends support general jurisdiction. These include the establishment of a network

of West Virginia Ford dealers; financing of West Virginia Ford dealers; financing of West

Virginia consumers; promoting sales incentives and rebate programs with West Virginia

dealers and consumers; entering into indemnity agreements with dealers; certifying dealers

to perform repairs on Ford vehicles; training Ford mechanics and technicians; providing

procedures to follow when making repairs on Ford vehicles; sending Ford representatives

into the State to assist with warranty matters; sending Ford recall notices to West Virginia

residents who own Ford vehicles regardless of whether the vehicle was purchased from a

dealer; advertising in West Virginia through web sites, pop-up ads, television ads, radio ads,

internet ads, and print ads; requiring dealers to advertise within specified Ford parameters;

registering to do business in West Virginia; designating an agent for service of process in

West Virginia; requiring dealers to conform to Ford signage and appearance requirements;

paying property taxes in various counties in West Virginia; maintaining and operating a joint

venture website with West Virginia Ford dealers, either directly or indirectly, in order to

promote Ford vehicles and products and sales to West Virginia residents; and actively

litigating and defending cases in the State.

29

 It is clear that Mr. Wellman recognizes the challenges presented by the bare

record. In his brief to this Court, Mr. Wellman states that, “[c]ontrary to Ford’s assertion, the

relevant facts are highly disputed, and resolution of the present issue turns primarily on

determination of fact. Should this Court determine that further development of the

underlying facts is necessary, it may remand this matter to the circuit court for discovery

proceedings.” Alternatively, Mr. Wellman has suggested that this Court could make use of

a special master to address jurisdictional facts. We decline to use such a process. Mr.

Wellman made an effort to “informally gather publicly available evidence that demonstrates

Ford’s contacts with and conduct towards West Virginia” with his motion for leave to submit

a supplemental appendix to which Ford objected. We granted the motion, but only insofar

as supplementation was permitted with respect to material that already was part of the record

of the trial court. The result was that the factual material identified by Mr. Wellman and

outlined generically above was not provided. Under the procedural and substantive

circumstances, such facts should be developed at the trial court level so that they become a

part of the record and inform a fact and law-based analysis of personal jurisdiction. We are

compelled to note that our analysis and summary of the informal facts pointed to by Mr.

Wellman is not intended to suggest that building a record with some or all of the asserted

facts necessarily will lead to a conclusion that general jurisdiction is appropriate as to Ford,

but, rather, that Mr. Wellman should have been permitted to provide such proof to inform the

circuit court’s determination of such jurisdictional issue. We observe that in State v. Lewis,

30

188 W. Va. 85, 95, 422 S.E.2d 807, 817 (1992), this Court concluded that an insufficient

factual record may foreclose consideration of the issues presented in a writ of prohibition.

Having outlined the constitutional due process boundaries of general

jurisdiction as well as the limitations to our review resulting from the lack of a developed

record in the case sub judice, we now turn our attention to the invocation of specific

jurisdiction.

3. Specific Jurisdiction. As we earlier indicated, specific jurisdiction is

distinguished from general jurisdiction in that the in-state activities of the non-resident

defendant give rise to or are related to the cause of action sued on. A footnote in the Daimler

decision describes in easily understood hypothetical fashion the distinction between the two

types of jurisdiction as follows:

Colloquy at oral argument illustrated the respective
provinces of general and specific jurisdiction over persons. Two
hypothetical scenarios were posed: First, if a California
plaintiff, injured in a California accident involving a Daimler­
manufactured vehicle, sued Daimler in California court alleging
that the vehicle was defectively designed, that court’s
adjudicatory authority would be premised on specific
jurisdiction. See Tr. Of Oral Arg. 11 (Daimler’s counsel
acknowledged that specific jurisdiction “may well
be . . . available” in such a case, depending on whether Daimler
purposefully availed itself of the forum). Second, if a similar
accident took place in Poland and injured Polish plaintiffs sued
Daimler in California court, the question would be one of plain
general jurisdiction.

31

Daimler, ___ U.S. at ___ n.5, 134 S. Ct. at 754 n.5, 187 L. Ed. 2d 624.

The inquiry in specific jurisdiction “focuses on the relationship among the

defendant, the forum, and the litigation.” Walden v. Fiore, ___U.S.___, ___, 134 S. Ct.

1115, 1121, 188 L. Ed 2d 12 (2014). The specific jurisdiction analysis for determining

whether a forum’s exercise of jurisdiction over a nonresident defendant meets due process

standards is multi-pronged. The first prong requires a determination that the nonresident

defendant has minimum contacts with the forum. Establishing minimum contacts involves

an examination of whether the defendant purposefully availed itself of the privilege of

conducting activities within the forum. Two general methods for assessing minimum

contacts for purposes of specific personal jurisdiction are stream of commerce and stream

of commerce plus. To meet the second prong, it must be determined that the plaintiff’s

claims arise out of or relate to the defendant’s contacts with the forum. Under the third

prong, it must be constitutionally reasonable to assert the jurisdiction so as to comport with

fair play and justice. The reasonableness factors were identified in Asahi Metal Industry Co.

v. Superior Court of California, 480 U.S. 102, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987), and

include considering “the burden on the defendant,” “the interests of the forum State,” “the

plaintiff’s interest in obtaining relief,” “the interstate judicial system’s interest in obtaining

the most efficient resolution of controversies,” and “the shared interest of the several States

32

in furthering fundamental substantive social policies.” Id. at 113, 107 S. Ct. at 1033, 94

L. Ed. 2d 92 (internal quotations and citation omitted).

Ford argues that it is not subject to specific jurisdiction in West Virginia

because there are no facts establishing that Ford purposefully availed itself of conducting

activities in West Virginia. Additionally, Ford asserts that West Virginia has rejected the

stream of commerce theory for establishing the purposeful availment prong of specific

jurisdiction. Ford also contends that there has been no showing that the claims arose out of

or resulted from Ford’s activities in the State.

Mr. Wellman argues that Ford is subject to specific jurisdiction in West

Virginia because Ford has purposefully directed its conduct toward the State by placing its

products in the stream of commerce. He asserts that the stream of commerce theory applies

in West Virginia for establishing the purposeful availment prong of specific jurisdiction. Mr.

Wellman also contends that whether the facts as to Ford’s contacts with West Virginia are

analyzed under a stream of commerce approach or a more rigid stream of commerce plus

approach, the result would be the same in finding specific jurisdiction. He also argues that,

inasmuch as this litigation arises out of claims of vehicle defect resulting in injury, it arises

out of Ford’s contacts with the State which involve the business of selling Ford vehicles,

parts, and accessories and promoting a market within the State for Ford products.

33

 The issue of specific jurisdiction requires us to revisit the due process analysis

in light of World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62

L. Ed 2d 490 (1980), and its progeny. World-Wide is the seminal case addressing specific

personal jurisdiction, and it did so in the context of a product liability action. In World-Wide,

the United States Supreme Court announced the use of the stream of commerce test for

purposes of analyzing when a state may subject a foreign manufacturer to jurisdiction within

the parameters of the Due Process Clause. The stream of commerce test provides a

mechanism for analyzing the purposeful availment prong of specific jurisdiction.

In World-Wide, Harry and Kay Robinson purchased a new Audi from Seaway

Volkswagen, Inc., a dealer in Massena, New York. The following year, the Robinsons left

New York to drive to their new home in Arizona. While driving through Oklahoma, another

car struck their Audi in the rear. A fire erupted that severely burned Kay and her two

children.

The Robinsons filed a products liability action in state court in Oklahoma

against the Audi manufacturer, the importer, the regional distributor, and the retail dealer.

Among other things, the Robinsons claimed that their injuries resulted from defective design

and placement of the gas tank and fuel system. Notably, the foreign manufacturer and the

importer did not contest personal jurisdiction in Oklahoma. The regional distributor, World­

34

Wide, and the retail dealer, Seaway Volkswagen, Inc. (“Seaway”), challenged personal

jurisdiction.

World-Wide was incorporated in New York where it also had its business

office. It distributed vehicles, parts, and accessories to retail dealers in New York, New

Jersey, and Connecticut. Seaway also was incorporated and had its principle place of

business in New York. Neither company engaged in any business in Oklahoma. They did

not ship or sell products to, or in, Oklahoma. Further, they did not have agents in Oklahoma

to receive service of process, and there was no evidence of any advertising in Oklahoma.

Nevertheless, the Oklahoma courts, relying on the long-arm statute as well as

the type of product involved, found that it was foreseeable that the car would be driven in

Oklahoma. The United States Supreme Court reversed, finding that it was unreasonable to

impose personal jurisdiction under the facts of an “isolated occurrence” and the “fortuitous

circumstances” of the car being in Oklahoma.

The case was significant for its development of the stream of commerce

approach for analyzing the purposeful availment prong with respect to specific personal

jurisdiction. The theory was articulated as follows:

Hence if the sale of a product of a manufacturer or distributor
such as Audi or Volkswagon is not simply an isolated

35

 occurrence, but arises from the efforts of the manufacturer or
distributor to serve, directly or indirectly, the market for its
product in other 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. The
forum State does not exceed its powers under the Due Process
Clause if it asserts personal jurisdiction over a corporation that
delivers its products into the stream of commerce with the
expectation that they will be purchased by consumers in the
forum State.

World-Wide Volkswagen, 444 U.S. at 297-98, 100 S. Ct. at 567, 62 L. Ed 2d 490 (emphasis

added).

The Court also reaffirmed that a state court may exercise specific personal

jurisdiction over a nonresident defendant so long as minimum contacts exist between the

defendant and the forum state. Id. at 291, 100 S. Ct. at 564, 62 L. Ed 2d 490. Note was

made of the fundamental transformation of the American economy in terms of the

nationalization of commerce, modern transportation, and modern communication such that

the limits imposed by the Due Process Clause on state jurisdiction “have been substantially

relaxed over the years.” Id. at 292-93, 100 S. Ct. at 565, 62 L. Ed 2d 490. The benchmark

for exercising specific personal jurisdiction is not the mere likelihood that a product makes

its way into the forum state. “Rather, it is that the defendant’s conduct and connection with

the forum State are such that he should reasonably anticipate being haled into court there.”

Id. at 296-97, 100 S. Ct. at 567, 62 L. Ed 2d 490.

36

 The next time that the U.S. Supreme Court dealt with specific jurisdiction in

the context of stream of commerce theory in a product liability action was in Asahi Metal

Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S. Ct. 1026, 94 L. Ed. 2d 92.

The case arose out of an incident on an interstate in California. Gary Zurcher was severely

injured and his passenger wife was killed when he lost control of his motorcycle and collided

with a tractor-trailer. Zurcher alleged that he lost control when his rear tire exploded after

a sudden loss of air due to a defect in the tire, tube, and sealant.

Among others, Zurcher sued Cheng Shin Rubber Industrial Co. Ltd. (“Cheng

Shin”), the Taiwanese manufacturer of the tube. Cheng Shin filed a cross-complaint seeking

indemnification from Asahi Metal Industry Co. (“Asahi”), the Japanese manufacturer of the

tube’s valve assembly. Subsequently, Chen Shin and other defendants settled their claims

with Zurcher, leaving only Cheng Shin’s indemnity action against Asahi. Asahi challenged

the exercise of personal jurisdiction as inconsistent with the Due Process Clause.

The facts established that Asahi manufactured valve assemblies in Japan,

which it sold to Cheng Shin and other tire manufacturers, for use as a component part in

finished tire tubes. Asahi’s sales to Cheng Shin took place in Taiwan, and shipments went

from Japan to Taiwan. Asahi’s income from sales to Cheng Shin was 1.24 percent of all

income. Cheng Shin represented that approximately twenty percent of its sales in the United

37

States were in California. Cheng Shin purchased valve assemblies from other manufacturers

and sold tubes around the world.

Asahi’s president filed an affidavit to the effect that it never contemplated that

its sales to Cheng Shin in Taiwan would subject it to litigation in California. Additionally,

Asahi had no offices, property, or agents in California. Asahi had no website advertising its

products and engaged nobody in the United States to promote its products.

The Supreme Court of California found that Asahi knew that some of the valve

assemblies sold to Cheng Shin would be in tire tubes sold in California and that it benefitted

from the sale of products incorporating its component. The component parts were placed in

the stream of commerce, and Asahi was aware that some of those parts would find their way

into California. That connection was deemed sufficient for jurisdiction.

The United States Supreme Court reversed. However, the Court was divided

in its rationale. In an opinion authored by Justice O’Connor and joined in by Chief Justice

Rehnquist and Justices Powell and Scalia, the analysis focused on the stream of commerce

and the defendant’s purposeful availment of the forum state. The approach taken by Justice

O’Connor was set out as follows:

The placement of a product into the stream of commerce,
without more, is not an act of the defendant purposefully

38

 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 a 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 State.

Asahi, 480 U.S. at 112, 107 S. Ct. at 1032, 94 L. Ed. 2d 92.

Justice O’Connor’s opinion addressed the reasonableness of the exercise of

jurisdiction. The burden on Asahi was found to be severe. Not only was the distance

between Japan and California noted, the analysis also remarked on the burden placed on a

manufacturer who is required to defend in a foreign legal system. The interest of Cheng Shin

and California in the exercise of jurisdiction over Asahi was said to be slight in that all that

remained was an indemnification claim based on a transaction that took place in Taiwan.

Because Cheng Shin was not a California resident, California’s interest was significantly

diminished as the action was about indemnification rather than safety standards. The fact

that the procedural and policy interests of other nations were at issue was also considered to

be important.

39

 Justice Brennan also authored an opinion that was joined in by Justices White,

Marshall, and Blackmun. The Brennan opinion agreed that the exercise of personal

jurisdiction over Asahi would not comport with “fair play and substantial justice.” However,

Justice Brennan disagreed with Justice O’Connor’s conclusion that Asahi did not

purposefully avail itself of the California market. Rather, the opinion explained that the facts

presented one of those rare cases where “fair play and substantial justice” defeat the

reasonableness of jurisdiction even though the defendant purposefully engaged in forum

activities.

Justice Brennan rejected the notion that in a stream of commerce case a

plaintiff would be required to show additional conduct directed toward the forum state in

order to establish the exercise of jurisdiction over the defendant. Instead, he articulated the

stream of commerce analysis as follows:

The stream of commerce refers not to unpredictable currents or
eddies, but to the regular and anticipated flow of products from
manufacture to distribution to retail sale. As long as a
participant in this process is aware that the final product is being
marketed in the forum State, the possibility of a lawsuit there
cannot come as a surprise. Nor will the litigation present a
burden for which there is no corresponding benefit. A
defendant who has placed goods in the stream of commerce
benefits economically from the retail sale of the final product in
the forum State, and indirectly benefits from the State’s laws
that regulate and facilitate commercial activity. These benefits
accrue regardless of whether that participant directly conducts
business in the forum State, or engages in additional conduct
directed toward the State.

40

Asahi, 480 U.S. at 112, 107 S. Ct. at 1034-35, 94 L. Ed. 2d 92.

Justice Stevens, joined by Justices White and Blackmun, also wrote a separate

opinion. Justice Stevens likewise agreed that California’s exercise of jurisdiction over Asahi

would be unreasonable and unfair. He saw no reason for any articulation of “purposeful

direction,” i.e., purposeful availment, or any other test. Justice Stevens suggested that the

jurisdictional analysis is “affected by the volume, the value, and the hazardous character” of

the goods. Id., 480 U.S. at 112, 107 S. Ct. at 1037, 94 L. Ed. 2d 92. Moreover, Justice

Stevens found that, even if one used a purposeful availment analysis in application, given the

volume of units delivered, he would be inclined to find that there was “purposeful

availment.” Id.

Thus, in Asahi, all of the Justices agreed that jurisdiction over Asahi did not

comport with fair play and substantial justice. However, there was no majority reached on

the issue of minimum contacts. In summary, in terms of the result, all the Justices agreed that

it was not fair or reasonable to advance specific jurisdiction in California in a case including

a Taiwanese manufacturer as a plaintiff, a Japanese manufacturer as a defendant, and purely

an indemnity dispute concerning a transaction that took place in Taiwan.

41

 It would be more than two decades before the United States Supreme Court

revisited the stream of commerce test. Once again, when the Court spoke, it did so in a

fractured voice. J. McIntyre Machinery, LTD. v. Nicastro, 564 U.S. 873, 131 S. Ct. 2780,

180 L. Ed. 2d 75 (2011), involved a products liability action against a foreign manufacturer,

J. McIntyre Machinery (“J. McIntyre”), which was incorporated and operating in England.

Robert Nicastro was a New Jersey resident who worked in New Jersey’s extensive scrap

recycling industry. Mr. Nicastro was severely injured and lost part of his hand while using

a three-ton metal shearing machine manufactured by J. McIntyre.

J. McIntyre held both the United States and European patents on the recycling

technology. J. McIntyre used an exclusive, independent, U.S. based distributor to sell its

machines in the United States. Officials of the company attended and exhibited products at

scrap metal trade shows and expositions in various states throughout the United States. At

least four of J. McIntyre’s machines were in use in New Jersey. J. McIntyre had no office

in New Jersey, paid no taxes in New Jersey, owned no property there, did no advertising

there, and sent no employees there.

The New Jersey Supreme Court held that J. McIntyre could be sued in New

Jersey based upon a stream of commerce analysis. Writing for only a plurality, Justice

Kennedy, joined by Chief Justice Roberts, Justice Scalia, and Justice Thomas, reversed,

42

finding that the exercise of jurisdiction by New Jersey would violate due process. Justice

Kennedy observed that the competing opinions in Asahi had resulted in confusion.

The Kennedy plurality opinion analyzed purposeful availment utilizing a

somewhat modified stream of commerce plus approach similar to that of Justice O’Connor’s

opinion in Asahi. Significantly, the Kennedy opinion remarked that such an analysis “does

not by itself resolve many difficult questions of jurisdiction that will arise in particular

cases.” J. McIntyre, 564 U.S. at 885, 131 S. Ct. at 2790, 180 L. Ed. 2d 75. Moreover, the

Kennedy opinion acknowledged the necessity of a forum-by-forum and a case-by-case

analysis indicating that “the defendant’s conduct and the economic realities of the market the

defendant seeks to serve will differ across cases, and judicial exposition will, in common-law

fashion, clarify the contours of that principle.” Id. The Kennedy opinion acknowledged that

purposeful availment by the defendant can sometimes be shown by the sending of goods into

a forum. The transmission of goods permits the exercise of jurisdiction “only where the

defendant can be said to have targeted the forum; as a general rule, it is not enough that the

defendant might have predicted that its goods will reach the forum State.” Id. at 882, 131

S. Ct. at 2788, 180 L. Ed. 2d 75 (emphasis added).

Justices Breyer and Alito joined in an opinion concurring in the judgment that

Nicastro failed to meet his burden to demonstrate that it was constitutionally proper to

43

exercise jurisdiction over J. McIntyre. The opinion found that the case was readily

determined by existing precedents. Justice Breyer found that the limited facts simply did not

provide the minimum contacts between the British manufacturer and the State of New Jersey

sufficient to support jurisdiction. There was no showing that J. McIntyre “delivered its goods

into the stream of commerce with the expectation that they will be purchased in New Jersey.”

Id. at 889, 131 S. Ct. at 2791, 180 L. Ed. 2d 75.

Justice Breyer’s opinion disagreed with the “plurality’s seemingly strict no-

jurisdiction rule.” Id. at 890, 131 S. Ct. at 2793, 180 L. Ed. 2d 75. The opinion also

indicated that Justice Breyer was not persuaded by the “absolutist” approach of the New

Jersey Supreme Court, which he viewed as subjecting a producer to jurisdiction for a

products liability action if the products are distributed through a system that might lead to the

products being sold in any of the fifty states. Id. Justice Breyer’s concurrence is the binding

law because there was no majority opinion. See Marks v. United States, 430 U.S. 188, 193,

97 S. Ct. 990, 993, 51 L. Ed. 2d 60 (1977) (when fragmented court decides case, holding may

be viewed as that position taken by those members who concurred in judgment on narrowest

ground). Thus, stream of commerce theory for meeting the requirement of purposeful

availment remains a viable framework for analyzing whether a nonresident defendant may

be subject to specific personal jurisdiction in a forum for tort claims relating to the use of its

products by resident plaintiffs.

44

 The analysis of Justice Breyer is instructive regarding “modern concerns” and

the need for fact-specific review with an understanding of the relevant contemporary

circumstances. For instance, in questioning what it means for a defendant to submit to the

power of a sovereign or to target a forum, the following was said:

But what do these standards mean when a company targets the
world by selling products from its Web site? And does it matter
if, instead of shipping the products directly, a company consigns
the products through an intermediary (say, Amazon.com) who
then receives and fulfills the orders? And what if the company
markets its products through popup advertisements that it knows
will be viewed in a forum?

J. McIntyre, 564 U.S. at 890, 131 S. Ct. at 2793, 180 L. Ed. 2d 75.

Finally, Justice Ginsburg, joined by Justice Sotomayor and Justice Kagan,

wrote a dissent that, in part, employed an International Shoe and World-Wide approach of

reasonableness and fairness. Justice Ginsburg found that the exercise of jurisdiction by New

Jersey was consistent with due process. Adopting terminology of the Kennedy plurality,

Justice Ginsburg noted that the manufacturer “targeted” the entire United States as its

territory for product development. Accordingly, she reasoned, when a manufacturer or

distributor aims to sell its products to customers in several states, it is reasonable to subject

it to suit in any one of those states if the product has resulted in injury in the state.

45

 Following Asahi, this Court adopted Justice Brennan’s World-Wide

Volkswagen approach to stream of commerce as a method of establishing purposeful

availment. See Hill by Hill v. Showa Denko, K.K., 188 W. Va. 654, 425 S.E.2d 609 (1992).

Hill involved contaminated L-tryptophan drug product that resulted in serious injuries and

deaths. The contamination occurred in connection with conversion to a less expensive

manufacturing process. As a result of taking the product, Mrs. Hill developed a rare and

disabling blood disorder.

The Hills sued their pharmacy; the American supplier of the product to the

pharmacy; the raw supplier and American distributor of the drug, Showa Denko America,

Inc. (“SDA”); and Showa Denko K.K. (“SDK”), a Japanese corporation located in Tokyo

that owned 100 percent of SDA’s stock. SDK’s manufacturing and research facility was

located in Japan. SDK had no offices or places of business in the United States. It owned

no property in the United States. SDA’s business was purchasing, importing, and reselling

SDK’s products in the United States. SDA purchased more than ten million dollars worth

of product from SDK. When SDK learned of the link between the product and the blood

disorder, it directed SDA to immediately cease sales.

The trial court found that jurisdiction was not established as to SDK. This

Court reversed after reviewing International Shoe, World-Wide, and Asahi. The Court

46

concluded that “[p]ersonal jurisdiction premised on the placement of a product into the

stream of commerce is consistent with the Due Process Clause and can be exercised without

the need to show additional conduct by the defendant aimed at the forum state.” Syl. pt. 2,

in part, Hill, 188 W. Va. 654, 425 S.E.2d 609. The analysis regarding jurisdiction did not

conclude with the fact that product ended up in West Virginia and injury occurred here. The

Court also analyzed the matter with respect to traditional notions of fair play and substantial

justice. In so doing, the Court observed that SDK benefitted from its contacts with West

Virginia regardless of whether they were direct or indirect through the wholly-owned

subsidiary; the nature of the distribution pattern of the product and the profitability of the

product; West Virginia’s substantial interest in exercising jurisdiction; and the burdens on

the plaintiff and on SDK.

Ford argues that this Court rejected the Hill stream of commerce approach in

Griffith v. ConAgra Brands, Inc., 229 W. Va. 190, 728 S.E.2d 74 (2012), when it held that

the Due Process Clause’s purposeful direction, i.e., availment, requirement could not be

satisfied by placing a product in the stream of commerce. Ford’s characterization of Griffith

constitutes a misreading of the facts, analysis, and holding of that case.

Griffith has no application to the question presently before this Court. Griffith

involved a taxpayer’s appeal of assessments of corporation net income tax and business

47

franchise tax. This Court affirmed a lower court ruling that set aside a tax assessment for

unpaid corporation net income tax and business franchise tax relating to royalties received

from a foreign licensor that were earned from the nationwide licensing of food industry

trademarks and trade names. The circumstances were that the licensor had no physical

presence in the State and did not sell or distribute food-related products or provide services

in West Virginia. Further, all the trademarked or trade name products were manufactured

by unrelated licensees of the foreign licensor outside of West Virginia. The foreign licensor

did not direct or dictate how the licensees distributed the products, and the licensees had no

retail stores in West Virginia. The Court applied a constitutional analysis of the Due Process

and Commerce Clauses as developed in the discrete area of state taxation of foreign

corporations.

Griffith simply has no bearing on this matter. Griffith addresses the

considerations in determining when an out-of-state entity has tax liability for economic

impact in this State in a field complicated by abstraction. Ford is incorrect in asserting that

the stream of commerce theory was rejected. Perhaps Ford’s confusion results from the Tax

Commissioner’s argument that the mere placement of the trademarks and trade names in the

stream of commerce was adequate for warranting the tax assessments. The Court referenced

Syllabus point 2 of Hill and observed that jurisdiction over a Japanese drug manufacturer had

been proper since the manufacturer derived substantial revenue in West Virginia from the

48

purchase of its medication in this State. The Japanese manufacturer distributed goods

through a wholly-owned American distributor that it had the ability to direct and control.

Such ability to direct and control was not the case with the foreign licensee taxpayer in

Griffith. Plainly, the Court in Griffith did not overrule Hill and did not in any way disavow

Syllabus point 2 of Hill. Had the Court chosen to reject stream of commerce as an approach

to purposeful availment in a tort action involving product defect claims, it would have

overruled Hill.

Ford also suggests that even if the stream of commerce test was not rejected

in Griffith, it should now be abandoned in accordance with decisions by other courts. Ford

directs this Court to Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939 (4th Cir. 1994), and

In re Celotex Corp. v. Rapid American Corp., 124 F.3d 619 (4th Cir. 1997), arguing that this

Court should follow the Fourth Circuit Court of Appeals and apply a stream of commerce

plus analysis.

This Court pays due deference and respect to opinions and analysis of the

Fourth Circuit. However, we are not bound to adopt the approach of the Fourth Circuit as

to minimum contacts and the use of the stream of commerce analysis for determining the

purposeful availment prong of specific jurisdiction. Having determined that this Court has

not abandoned the stream of commerce test for determining specific personal jurisdiction in

49

a products liability action, we decline to overrule our precedents to impose a more restrictive

test.4 This is not to say that plaintiffs are foreclosed from grounding arguments regarding

specific jurisdiction in a more restrictive stream of commerce plus approach like the non­

binding plurality tests articulated by Justice O’Connor in Asahi or Justice Kennedy in J.

McIntyre, but they are not required to do so.

We observe that some other state appellate courts also have declined to adopt

a stricter test subsequent to the J. McIntyre decision and have instead concluded that their

existing precedent on the stream of commerce test remains good law. See, e.g., Book v.

Doublestar Dongfeng Tyre Co., Ltd., 860 N.W.2d 576 (Iowa 2015) (declining to adopt

stream of commerce plus test for jurisdiction in product liability cases); Jacobsen v. Asbestos

Corp. Ltd., 119 So. 3d 770, 782 (La. Ct. App. 2013) (concluding that court is free to continue

to apply stream of commerce theory); Butler v. JLA Indus. Equip., Inc. 845 N.W.2d 834, 846

(Minn. Ct. App. 2014) (distilling principles from J.McIntyre and continuing to apply stream

of commerce test); Sproul v. Rob & Charlies, Inc., 304 P.3d 18, 33 (N.M. Ct. App. 2012)

(because J.McIntyre did not result in majority opinion, law using the stream of commerce test

4
In State ex rel. CSR Ltd. v. MacQueen, 190 W. Va. 695, 441 S.E.2d 658
(1994), this Court held that West Virginia had personal jurisdiction over a sales agent who
introduced asbestos fibers into the stream of commerce knowing that products containing
fibers would be distributed throughout the United States. In Syllabus point 2, the Court held
that, “[i]n determining whether our courts have jurisdiction under the stream of commerce
theory articulated in Asahi . . . , the rule in West Virginia will always be congruent with the
outer edge of the due process envelope that, as determined by the Supreme Court of the
United States, circumscribes jurisdiction.” Id. (citation omitted).

50

remains binding in New Mexico). Additionally, we note that some federal courts also have

continued to apply the stream of commerce test in analyzing the purposeful availment prong

of specific jurisdiction. See, e.g., In re Chinese-Manufactured Drywall Prods. Liab. Litig.,

753 F.3d 521 (5th Cir. 2014); Ainsworth v. Moffett Eng’g, Ltd., 716 F 3d 174 (5th Cir. 2013),

cert. denied, ___ U.S. ___, 134 S. Ct. 644, 187 L. Ed. 2d 420 (2013); AFTG-TG, LLC v.

Nuvoton Tech Corp., 689 F. 3d 1358, 1363 (Fed. Cir. 2012).

Continuing in the specific jurisdiction analysis, we next address Ford’s

assertion that there is no nexus between the allegations of the complaint and the activities of

Ford in West Virginia. As to nexus, specific jurisdiction asks whether the litigation results

from alleged injuries that “arise out of or relate to” the nonresident defendant’s activities in

the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 2182, 85

L. Ed. 2d 528 (1985). Ford relies on Pitts v. Ford Motor Co., 127 F. Supp. 3d 676 (S.D.

Miss. 2015), as support for the argument that Mr. Wellman cannot establish that his claims

arose out of or resulted from any forum-related activities on the part of Ford. Ford contends

that because the Ford Explorer was manufactured in Kentucky, sold to a dealer in Florida,

and entered West Virginia via a third party, Ford’s asserted activities in West Virginia do not

have anything to do with the West Virginia claim.

51

 In Pitts, the plaintiffs, who were Texas residents, purchased a Ford vehicle

from a Ford dealership in Texas. They were injured in an auto accident in Mississippi. The

plaintiffs filed a complaint in federal district court in Mississippi contending the vehicle was

defective in design, engineering, and manufacturing with respect to the passenger seatbelt

and restraint system and the airbag system.

The court found that Ford was amenable to suit under the Mississippi long-arm

statutes because the alleged tort was committed, in part, in Mississippi and because the

plaintiff’s injuries occurred in Mississippi. In analyzing the due process concerns, the court

found that Ford was not at home in Mississippi for purposes of general jurisdiction.

However, the court next found that the submission of facts and exhibits consisting of such

information as the identity of Ford’s registered agent for service of process, screen shots of

a Ford dealer’s website, and promotional videos made it clear that Ford had deliberately

targeted Mississippi and purposefully availed itself of the privileges of conducting business

in the forum. Thus, the court found that the minimum contacts prong of specific jurisdiction

was satisfied. However, the court concluded that there was no nexus between Ford’s

contacts and the plaintiff’s claims. The court focused on the fact that the plaintiffs bought

the vehicle in Texas and unilaterally transported it to Mississippi where they claim they were

injured as a result of product defects. The focus of the court was narrowly directed at the

place of sale.

52

 As Mr. Wellman observes, in the instant matter, both the purchase of the Ford

Explorer and the accident resulting in death took place in West Virginia. Thus, the present

facts are distinguishable from those in Pitts. Also important is that we find the nexus

analysis in Pitts to be so rigid and formalistic as to undermine the precedent of World-Wide

and its progeny. We decline to use the place of sale as a per se rule to defeat specific

jurisdiction. Such an approach ignores even the plurality in J. McIntyre that indicated that

the inquiry considers both the defendant’s conduct and the economic realities of the market

the defendant seeks to serve. It also utterly ignores the “targeting” of a forum for the purpose

of developing a market. The focus in a stream of commerce or stream of commerce plus

analysis is not the discrete individual sale, but, rather, the development of a market for

products in a forum. The court in Pitts failed to consider the nature of product liability

claims.

In support of our conclusion that the Pitts analysis is too narrow, we note that

underlying the Daimler opinion is the perspective that, while application of “specific

jurisdiction has been cut loose from Pennoyer’s sway,” the Court has declined to stretch

general jurisdiction as far. Daimler, ___, U.S. at ___, 134 S. Ct. at 757, 187 L. Ed. 2d 624.

The Court noted that specific jurisdiction occupies a place of greater dominance than general

jurisdiction. Id. at ___, 134 S. Ct. at 758, 187 L. Ed. 2d 624. As she has before, Justice

Ginsburg cited academics for the paramount importance of specific jurisdiction. “We do not

53

need to justify broad exercises of dispute-blind jurisdiction unless our interpretation of the

scope of specific jurisdiction unreasonably limits state authority over nonresident

defendants.” Id. at ___ n.9, 134 S. Ct. at 758 n.9, 187 L. Ed. 2d 624 (citing Mary Twitchell,

The Myth of General Jurisdiction, 101 Harv. L. Rev. 610, 676 (1988) (advocating a limited

scope for general jurisdiction and a broad, expanded scope for specific jurisdiction)). The

nexus interpretation in Pitts is one that unreasonably limits state authority such that we

decline to apply it.

Our analysis leads us to hold that a court may assert specific personal

jurisdiction over a nonresident defendant to hear claims against the defendant arising out of

or relating to the defendant’s contacts or activities in the state by which the defendant

purposefully avails itself of conducting activities in the state so long as the exercise of

jurisdiction is constitutionally fair and reasonable. In addition, we hold that the purposeful

availment requirement of specific personal jurisdiction ensures that a defendant will not be

haled into a jurisdiction as a result of isolated, fortuitous, or random acts. Finally, we hold

that the specific personal jurisdiction fairness and reasonableness inquiry may, in appropriate

cases, include, but is not limited to, considering the burden on the defendant, the interests of

the state, the interest of the plaintiff in obtaining relief, the interstate judicial system’s interest

in obtaining efficient resolution of controversies, and the shared interests of states in

54

furthering fundamental substantive social policies. The analysis is case specific, and all

factors need not be present in all cases.

Having established the principles of specific jurisdiction and outlined the

positions of the parties, our normal course would be to apply the same to the instant matter.

However, as with general jurisdiction, this Court finds itself unable to undertake the required

fact-based analysis to make a determination as to whether Ford is subject to specific

jurisdiction in this State. Our previous discussion regarding the bare record and the

deficiencies of the trial court’s orders apply equally, if not more so, to the issue of specific

jurisdiction. The trial court simply did not address any of the three prongs of specific

jurisdiction analysis: (1) the purposeful availment (stream of commerce) requirement; (2) the

arising out of or relating to requirement; or (3) the reasonableness requirement. As

discussed, these prongs require an analysis whereby the facts are applied to the principles of

law.

We next proceed to address the issue of consent raised by Mr. Wellman.

C. Consent to Jurisdiction

Mr. Wellman argues that Ford consented to the jurisdiction of the circuit court

by appearing in that court to file joint stipulation orders regarding discovery matters prior to

55

filing the motion to dismiss for lack of personal jurisdiction. The discovery stipulations were

negotiated between the parties during the period when the matter was stayed in the federal

district court. The remand order was entered on September 11, 2015, and filed with the

circuit court on September 18, 2015. The stipulated discovery orders use the style of the

action as pending in the Circuit Court of Wyoming County, West Virginia. The jurisdictional

challenges of Ford are not explicitly preserved by the terms of the orders. An order regarding

confidentiality was signed by counsel for Mr. Wellman on July 27, 2015; by counsel for

Ramey on August 11, 2015; and by counsel for Ford on September 10, 2015. A stipulated

order regarding document access does not indicate the date counsel for the parties signed the

document. Both stipulated discovery orders were signed by the trial court judge on

September 16, 2015, and filed with the clerk of the court on September 21, 2015. Ford’s

motion to dismiss was not filed until September 23, 2015. Mr. Wellman asserts that the

filing of the stipulated discovery orders amounted to a consent to the jurisdiction of the trial

court as it constituted an appearance for matters other than to contest jurisdiction.

Vanscoy v. Anger, 203 W. Va. 624, 510 S.E.2d 283 (1998) (per curiam), is

cited by Mr. Wellman as support for the argument that Ford consented to jurisdiction by first

entering an appearance regarding discovery matters. In Syllabus point 2 of Vanscoy, this

Court held that “‘“[a]t [sic] an appearance in a suit or action for any purpose other than to

question the jurisdiction of the court, or to set up a lack of process, or defective service is a

56

general appearance.” Syl. pt. 1, Stone v. Rudolph, 127 W. Va. 335, 32 S.E.2d 742 (1944).’

Syl. pt. 5, Lemley v. Barr, 176 W. Va. 378, 343 S.E.2d 101 (1986).” In Vanscoy, the

defendant appeared for matters other than to challenge jurisdiction when he signed a

scheduling order and submitted a joint motion for a continuance. In so doing, this Court held

that he waived his challenge to the jurisdiction of the trial court.

We observe that Rule 12(b)(2) of the West Virginia Rules of Civil Procedure

permits the defense of lack of personal jurisdiction to be asserted in the responsive pleading

or by motion. The former distinctions between special and general appearances no longer

apply. When the objection to personal jurisdiction is timely made, a defendant does not

thereafter waive the defense by further participation. Teachout v. Larry Sherman’s Bakery,

Inc., 158 W. Va. 1020, 216 S.E.2d 889 (1975).

Vanscoy is distinguishable from the facts here inasmuch as the defendant in

Vanscoy did not file a motion or responsive pleading raising a challenge to jurisdiction. The

defendant in Vanscoy appeared in the litigation by initialing a scheduling order and

submitting a joint motion to the court. Here, Ford properly raised the jurisdictional challenge

in its very first action, which was the removal to federal court. While the better practice may

have been to specifically note the jurisdictional challenge in the agreed discovery orders, the

record does not reflect any action on the part of Ford to waive the challenge to jurisdiction.

57

 IV.

CONCLUSION

Due to the lack of a sufficient factual record, we find that Ford has not shown

that it is entitled to a writ of prohibition as requested whereby this Court would dismiss it

from the underlying civil action. However, the assertions of Ford regarding its challenge to

jurisdiction are of such a significant nature that the parties are entitled to an opportunity to

develop the record and submit argument to be considered and determined by the circuit court.

Based upon the foregoing, the Petition for a Writ of Prohibition is granted, as moulded, and

this matter is remanded with instructions. The trial court is directed to provide Mr. Wellman

with an opportunity to meet the affidavit-supported challenge of Ford to the imposition of

personal jurisdiction. Upon development of the factual record, the parties shall be afforded

an opportunity to submit written memoranda of law, and the trial court shall proceed to

analyze and decide the matter in accord with the law, authorities, and principles discussed

herein and with due consideration of the arguments of the parties. We observe that we are

not dictating whether or to what extent jurisdictional discovery should be permitted as this

is a matter to be determined in the first instance by the trial court. Nor are we directing

whether there should be an evidentiary hearing on the question of jurisdiction. We simply

are remanding this case for the court to undertake the proceedings it deems appropriate and

58

to enter an order analyzing and determining the due process requirements with respect to the

challenges to both general and specific personal jurisdiction raised by the parties.

Writ Granted as Moulded.

59