Theodore Koziol v. Bombadier-Rotax

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 04-12041 ELEVENTH CIRCUIT
APRIL 22, 2005
Non-Argument Calendar
THOMAS K. KAHN
-------------------------------------------- CLERK

D. C. Docket Nos. 02-61807-CV-JIC & 03-61096-CV-JIC

THEODORE KOZIAL and
LOIS KOZIOL,

Plaintiffs-Appellants,

versus

BOMBARDIER-ROTAX GMBH,
MOTORENFABRIK, et al.,

Defendants-Appellees.

----------------------------------------------------------------
Appeal from the United States District Court
for the Southern District of Florida
----------------------------------------------------------------

(April 22, 2005)

Before EDMONDSON, Chief Judge, BLACK and PRYOR, Circuit Judges.
PER CURIAM:

Plaintiffs-Appellants Dr. Theodore Koziol and Lois Koziol

appeal the dismissal of their product liability action on jurisdictional

grounds against Defendants-Appellees Bombardier-Rotax GMBH,

Motorenfabrik, (“Rotax), Kodiak Research, Ltd. (“Kodiak”), and

Rotech Research Canada, Ltd. (“Rotax”). No reversible error has

been shown; we affirm.

Dr. Koziol was a passenger in an “ultralight” home built

aircraft piloted by Vincent Vitollo that crashed near Lakewood,

New Jersey, on 20 March 1999, shortly after takeoff. The pilot was

killed, and Dr. Koziol injured. The aircraft was powered by a Rotax

582-UL engine that was manufactured by Rotax, an Austrian

corporation, in Austria. Dr. Koziol alleges that engine failure caused

the crash.

2
The federal district court sitting in Florida granted

Defendants’ motion to dismiss based on the absence of personal

jurisdiction over the Defendants. We review de novo the dismissal

of an action for lack of personal jurisdiction. See Alexander

Proudfoot Co. World Headquarters v. Thayer, 877 F.2d 912, 916

(11 th Cir. 1989). Where, as is the case here, the district court

conducts no evidentiary hearing on the motion to dismiss, the

plaintiff must establish jurisdictional facts sufficient to withstand a

motion for directed verdict. Madara v. Hall, 916 F.2d 1510, 1514

(11 th Cir. 1990). All undisputed facts in the complaint are accepted

as true and where facts are contested the court is to draw all

reasonable inferences in favor of the plaintiff. Id. When a

defendant submits affidavits or other materials supporting a

meritorious challenge to jurisdiction, the burden falls on the plaintiff

to produce sufficient evidence to establish jurisdiction. See Jet

Charter Service, Inc. v. Koeck, 907 F.2d 1110, 1112 (11 th Cir. 1990).

3
Rotax sold the engine involved in the crash to Kodiak, a

Bahamian corporation with its principle place of business in Nassau,

Bahamas. Kodiak, in turn, sold the engine to South Mississippi

Light Aircraft (“South Mississippi”). Kodiak retained Tropix Air

Limited, another Bahamian corporation, to ship the engine from the

Bahamas to South Mississippi. Tropix Air Limited delivered the

engine to Miami, Florida where Tropix Express, Inc., a Florida

corporation, received the shipment. Tropix Express, Inc. delivered

the engine to South Mississippi. South Mississippi sold the engine to

the pilot, Vitollo, and delivered the engine in New Jersey.

Plaintiffs first brought suit in federal district court in New

Jersey against Rotax, Kodiak and Rotech, a British Columbia

Corporation with its principle place of business in British Columbia.

Rotech was not involved in the sale of the engine; but Appellants

alleged that Rotech provides technical services, conducts accident

investigations and services warranty claims for Rotax engines in

4
North America. While the New Jersey action was pending, Plaintiffs

filed another action in federal district court in the Southern District

of Florida against Rotax, Kodiak and Rotech.1

Defendants moved to dismiss the suit in New Jersey based on

the absence of personal jurisdiction. By order dated 24 April 2003,

the motion to dismiss was granted. Instead of appealing the

dismissal order, Plaintiffs moved to reopen the New Jersey action

and to have the action transferred to the Southern District of

Florida.2 That motion was granted and the action was transferred.

The district court for the Southern District of Florida consolidated

the transferred action with the other action earlier filed by

Plaintiffs.

1
Two other Bahamian corporations and a Bahamian resident were also named, but
these defendants were dismissed for failure to attempt to serve. Plaintiffs do not
appeal that ruling.
2
Plaintiffs also sought review of the New Jersey district court orders in this appeal.
Appeal of the New Jersey district court orders (i) dismissing based on a lack of
personal jurisdiction and (ii) transferring the action to the Southern District of Florida
was dismissed by order dated 9 September 2004.

5
Defendants again moved to dismiss for lack of personal

jurisdiction. The district court granted that motion concluding that

the exercise of jurisdiction would not comport with traditional

notions of fair play and substantial justice. The district court

assumed, without deciding, satisfaction of the requirements of

Florida’s long-arm statute and minimum contacts under the Due

Process clause.

A United States district court has personal jurisdiction over a

defendant in a diversity action if jurisdiction is conferred by the law

of the state in which the court sits. Meier v. Sun Int’l Hotels, Ltd.,

288 F.3d 1264, 1269 (11 th Cir. 2002). Jurisdiction can be either

general jurisdiction or specific jurisdiction. If a defendant is subject

to the general jurisdiction of the court, the defendant must respond

in that court to any cause of action, regardless of where the cause of

action arose. General jurisdiction arises from the defendant’s

contacts with the forum that are not directly related to the cause of

6
action being litigated. Id. Specific jurisdiction is founded on a

party’s activities in the forum that are related to the cause of action

alleged in the complaint. Consolidated Dev. Corp. v. Sherritt, Inc.,

216 F.3d 1286, 1292 (11 th Cir. 2000). The due process contacts

requisite to establishing general personal jurisdiction are more

exacting than those for specific personal jurisdiction. Id.; see also

Seabra v. Intern’l Specialty Imports, 869 So.2d 732, 734

(Fla.Dist.Ct.App. 2004). No exercise of jurisdiction, be it general or

specific, may offend “traditional notions of fair play and substantial

justice.” International Shoe Co. v. Washington, 66 S.Ct. 154, 158

(1945) (internal quotation and citation omitted).

Plaintiffs argue that two provisions of Florida law support

jurisdiction over Defendants. First, Plaintiffs maintain that Rotax,

Kodiak and Rotech are “engaged in substantial and not isolated

activity” within Florida and, therefore, Fla. Stat. § 48.193(2) confers

7
general jurisdiction in Florida courts.3 Second, Plaintiffs contend

that the cause of action arose from “[o]perating, conducting,

engaging in, or carrying on a business or business venture” in

Florida and, therefore, Fla. Stat. § 48.193(1)(a) subjects Rotax,

Kodiak and Rotech to the specific jurisdiction of Florida courts.4

3
Fla.Stat. § 48.193(2) provides:

A defendant who is engaged in substantial and not isolated
activity within this state, whether such activity is wholly
interstate, intrastate, or otherwise, is subject to the
jurisdiction of the courts of this state, whether or not the
claim arises from that activity.

4
Fla. Stat. 48.193(1)(a) provides:

(1) Any person, whether or not a citizen or resident of this
state, who personally or through an agent does any of the
acts enumerated in this subsection thereby submits himself
or herself ... to the jurisdiction of the courts of this state for
any cause of action arising from the doing of any of the
following acts:

(a) Operating, conducting, engaging in, or carrying on a business
or business venture in this state or having an office or agency in
this state.

8
The contention that specific jurisdiction is conferred under

§48.193(1)(a) requires only brief comment. The crash that caused

the injuries to Dr. Koziol occurred in New Jersey. The engine

claimed to have caused the crash was manufactured in Austria. The

district court found the only contact between the engine and Florida

was that it passed through Florida on its way to Mississippi and

eventually to New Jersey. No evidence exists that any cause of

action arose as a consequence of acts of Defendants that Plaintiffs

seek to characterize as “operating, conducting, engaging in, or

carrying on a business” in Florida. To establish specific jurisdiction

under Florida’s long-arm statute more connexity between the cause

of action and the foreign corporation’s acts must be alleged. See

Seabra, 869 So.2d at 734.5

5
Plaintiffs’ reliance on Vermeulen v. Renault, U.S.A.,Inc., 985 F.2d 1534 (11th
Cir. 1993) is misplaced. Vermeulen involved a company that was wholly owned by
a foreign state. Jurisdiction was based on 28 U.S.C. § 1330(a), a subject matter
jurisdiction provision relating to the Foreign Sovereign Immunities Act, 28 U.S.C.
§ § 1602-11. The United States is the relevant forum for due process analysis under
the Foreign Sovereign Immunities Act. Id. at 1553. The cause of action in Vermeulen
-- an accident occurring in the United States allegedly caused by defective design and

9
Plaintiffs also argue that general jurisdiction applies under

Florida’s long-statute. None of these entities actually maintained a

place of business in Florida. But Appellants contend that Lockwood

of Sebring, a distributor of Rotax engines in Florida (who is not a

named defendant) “is the face of Rotax, Kodiak, and Rotech in

Florida.” 6 Plaintiffs cite Meir, 288 F.3d at 1276, and Universal

Caribbean Establishment v. Bard, 543 So.2d 447, 448

(Fla.Dist.Ct.App. 1989), in support of their claim that Defendants

are deemed to be doing business in Florida for purposes of Fla.Stat.

§ 48.193(2). But those cases involve suits against a corporation that

had an affiliated corporation conducting business in Florida. As we

stated in Meier:

manufacture of the car -- arose from the contacts which supported specific
jurisdiction in the United States. In contrast, the contacts through which Plaintiffs
seek to hold Defendants amenable to suit in Florida are unrelated to their products
liability claim.
6
Lockwood did not purchase or handle in any way the engine that was in the
aircraft in which Dr. Koziol crashed.

10
The court may extend jurisdiction to any
foreign corporation where the affiliated
domestic corporation manifests no separate
corporate interests of its own and functions
solely to achieve the purpose of the dominant
corporation.

288 F.3d at 1273 (internal quotation and citation omitted). Even in

cases involving a parent and its subsidiary, courts are reluctant to

impute the activities of the subsidiary to the parent when some

semblance of independence has been maintained. See Consolidated

Dev. Corp., 216 F.3d at 1293-94. Plaintiffs cite us to no evidence

that Lockwood is an affiliate of Rotax, Kodiak or Rotech, that these

entities held an ownership interest in Lockwood, or that Lockwood

functions solely to achieve the purposes of these corporations.

Proffered evidence shows only that Lockwood is a distributor for

Rotax and Kodiak. We doubt that Florida would extend the

principles articulated in Meier and Universal to subject a foreign

corporation to the general jurisdiction of the state under these

circumstances.

11
But even if -- as the district court assumed without deciding --

the Florida long-arm statute conferred jurisdiction, we agree with

the district court that the exercise of jurisdiction would offend

traditional notions of fair play and substantial justice.

Florida has little interest in providing a forum simply because

the product passed through Florida on its way to New Jersey. The

only contact the subject engine had with Florida is that a Florida

corporation received shipment of the engine in Florida for delivery

to a Mississippi corporation who then delivered the engine to a New

Jersey purchaser. The contact of these international Defendants

with Florida in terms of this engine is even more removed. That the

Defendants had other unrelated (albeit still attenuated) contacts

with Florida as alleged by Plaintiffs is insufficient to require them to

defend in Florida against a claim that arises in another state and has

no nexus to those Florida contacts. We are cited to no case where

the exercise of general jurisdiction was found to comport with

12
traditional notions of fair play and substantial justice on contacts as

attenuated as the contacts of these Defendants with Florida. Again,

the accident occurred in New Jersey and the injured party is a New

Jersey resident. The cause of action arose out of and was related to

no activity of Defendants in Florida. Cases in which specific

jurisdiction was affirmed have no applicability.

On the basis of these facts and in the light of the international

context, the district court committed no reversible error when it

dismissed for want of personal jurisdiction over Defendants.

AFFIRMED.