IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-31106
Summary Calendar
_____________________
PATRICIA MAZA ANDERSON; ET AL
Plaintiffs
v.
T & D MACHINE HANDING INC; ET AL
Defendants
T & D MACHINE HANDLING INC
Defendant - Third Party Defendant - Appellant
v.
SBH INC, doing business as Hughes Equip Co
Third Party Defendant - Appellee
________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(94-CV-3188-K)
_________________________________________________________________
May 01, 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
In an action brought against T & D Machine Handling, Inc.
("T & D") to recover damages allegedly sustained when a forklift
owned by T & D emitted carbon monoxide fumes, T & D appeals the
district court's dismissal of T & D's third-party claims against
SBH, Inc. d/b/a Hughes Equipment Company ("SBH"), seller of the
forklift, for lack of personal jurisdiction. We affirm.
I. BACKGROUND
On October 21, 1991, T & D, a Georgia corporation, purchased
a used propane-powered forklift from SBH, an equipment company
incorporated in Ohio. The sale was made at SBH's location in
Ohio.
Approximately three years later, Mele Printing, Inc.,
located in Covington, Louisiana, hired T & D to off-load and set
up a printing press manufactured by Heidelberg USA, Inc.
("Heidelberg"). Patricia Maza Anderson and certain others, most
of whom were employees of Mele, sued T & D, Heidelberg, and their
respective insurance companies in the United States District
Court for the Eastern District of Louisiana to recover damages
allegedly sustained after T & D's forklift emitted carbon
monoxide fumes. T & D filed a third-party action against SBH,
alleging that SBH was at fault for misrepresenting that the
forklift could be safely used indoors, failing to warn of the
dangers of indoor use, and other reasons.
47.5.4.
2
On May 23, 1995, SBH moved to dismiss T & D's third-party
claims for lack of personal jurisdiction pursuant to Fed. R. Civ.
P. 12(b)(2). T & D opposed the motion, arguing that the district
court had personal jurisdiction based on either a stream of
commerce argument or general jurisdiction. By minute entry, the
district court granted SBH's motion, ruling that SBH had not had
minimum contacts with Louisiana sufficient to support personal
jurisdiction. T & D sought entry of a final judgment pursuant to
Fed. R. Civ. P. 54(b). On October 12, 1995, the district court
granted T & D's motion and entered final judgment dismissing the
claims against SBH for lack of personal jurisdiction. One week
later, T & D timely filed its notice of appeal.
II. ANALYSIS
The determination by a district court that personal
jurisdiction cannot be exercised over a nonresident defendant is
reviewed de novo if the facts are not disputed. Ham v. La
Cienega Music Co., 4 F.3d 413, 415 (5th Cir. 1993). In a
diversity suit, a nonresident defendant is amenable to personal
jurisdiction to the extent permitted by a state court in the
state in which the federal court is located. Wilson v. Belin, 20
F.3d 644, 646 (5th Cir.), cert. denied, 115 S. Ct. 322 (1994);
Bullion v. Gillespie, 895 F.2d 213, 215 (5th Cir. 1990). Thus, a
federal court sitting in diversity may assert personal
jurisdiction over a nonresident defendant if (1) the nonresident
defendant is amenable to service of process under the long-arm
3
statute of the forum state and (2) the exercise of jurisdiction
under state law comports with the Due Process Clause of the
Fourteenth Amendment. Wilson, 20 F.3d at 646-47. Louisiana's
long-arm statute extends to the limits of federal due process, so
the statutory and constitutional inquiries merge. Dalton v. R &
W Marine, Inc., 897 F.2d 1359, 1361 (5th Cir. 1990).
The exercise of personal jurisdiction over a nonresident
defendant comports with due process if (1) the defendant
purposefully availed himself of the privilege of conducting
activities within the forum state, thus invoking the benefits and
protection of its laws by establishing "minimum contacts" with
the state, and (2) such an exercise of jurisdiction does not
offend "traditional notions of fair play and substantial
justice." Wilson, 20 F.3d at 647 (citations omitted). Minimum
contacts with a forum state may give rise to "specific" or
"general" personal jurisdiction. Bullion, 895 F.2d at 216.
Specific jurisdiction is appropriate when the defendant's
"contacts with the forum state arise from, or are directly
related to, the cause of action." Wilson, 20 F.3d at 644; see
Burger King Corp. v Rudzewicz, 471 U.S. 462, 474 (1985); Villar
v. Crowley Maritime Corp., 990 F.2d 1489, 1496 (5th Cir. 1993),
cert. denied, 114 S. Ct. 690 (1994). General jurisdiction is
invoked when the nonresident defendant maintains "continuous and
systematic" contacts with the forum state, even if those contacts
are not directly related to the cause of action. Wilson, 20 F.3d
at 647; Bullion, 895 F.2d at 213. In regard to general
4
jurisdiction, "[m]ore contact is required with the forum state
because the state has no direct interest in the cause of action."
Bearry v. Beech Aircraft Corp., 818 F.2d 370, 374 (5th Cir.
1987).
T & D raises two issues on appeal: (1) whether the district
court erred by not finding personal jurisdiction over SBH based
on SBH's placing the forklift into the stream of commerce; and
(2) whether a finding of personal jurisdiction over SBH was
proper based on SBH's continuous and systematic contacts with
Louisiana. We examine these issues in turn.
A. Stream of Commerce
"The Supreme Court has stated that a defendant's placing of
its product into the stream of commerce with the knowledge that
the product will be used in the forum state is enough to
constitute minimum contacts." Ruston Gas Turbines, Inc. v.
Donaldson Co., Inc., 9 F.3d 415, 419 (5th Cir. 1993) (citing
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298
(1980)). Foreseeability is a critical factor in such a stream-
of-commerce analysis, but not foreseeability per se2--"not the
mere likelihood that a product will find 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." World-Wide Volkswagen,
2
The Supreme Court has noted that if foreseeability per
se were the criterion, "[e]very seller of chattels would in
effect appoint the chattel his agent for service of process. His
amenability to suit would travel with the chattel." World-Wide
Volkswagen, 444 U.S. at 296.
5
444 U.S. at 297 (citations omitted). Moreover, it is essential
that the defendant "purposefully avail[ed himself] of the
privilege of conducting activities within the forum State."
Hanson v. Denckla, 357 U.S. 235, 253 (1958). "This purposeful-
availment requirement ensures that a defendant will not be haled
into a jurisdiction solely as a result of random, fortuitous, or
attenuated contacts, or of the unilateral activity of another
party." Burger King, 471 U.S. at 475 (citations and internal
quotation marks omitted).
T & D contends that SBH is subject to personal jurisdiction
in Louisiana because SBH placed its products into the stream of
commerce. In advancing this argument, T & D relies on World-Wide
Volkswagen, Ruston, and Bean Dredging Corp. v. Dredge Technology
Corp., 744 F.2d 1081 (5th Cir. 1984). In World-Wide Volkswagen,
New York residents who purchased an automobile from a retailer in
New York were injured in Oklahoma a year later while driving to a
new home. Oklahoma sought to impose jurisdiction over the
automobile manufacturer, the importer, the New York wholesale
distributor, and the New York retail dealer. In dictum, the
Supreme Court stated:
if the sale of a product of a manufacturer or
distributor such as Audi or Volkswagen is not simply an
isolated occurrence, but arises from the efforts of the
manufacturer or distributor to serve, directly, or
indirectly, the market for its products 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 others.
6
World-Wide Volkswagen, 444 U.S. at 297. The Supreme Court held,
however, that the two defendants at the end of the automobile
distribution system--the wholesale distributor and the retail
dealer--were not amenable to Oklahoma jurisdiction. Id. at 299.
The Court distinguished the situation of these two defendants
from that of the manufacturer and the importer. Id. at 297-98.
In Ruston, the plaintiff's claim arose out of a Minnesota
manufacturer's contacts with the forum state--Texas. On 211
different occasions over a fifteen year period, the manufacturer
shipped equipment directly to locations in Texas, and on several
occasions employees of the manufacturer met with customers in
Texas. We held that the minimum contacts prong was satisfied
because the manufacturer placed its products into the stream of
commerce. Ruston, 9 F.3d 420-21. In Bean, a Washington
manufacturer introduced thousands of steel castings into the
stream of commerce. Noting that the manufacturer "evidenced no
attempt to limit the states in which its castings would be sold
and used," we held that the manufacturer had sufficient minimum
contacts with the forum state--Louisiana. Bean, 744 F.2d at
1085-86.
We do not believe that the circumstances of this case
support a finding of purposeful availment as delineated in World-
Wide Volkswagen and its progeny. Contrary to the position taken
by T & D, we find that relative to the stream of commerce the
posture of SBH--a dealer in used forklifts--had more in common
with that of the wholesale distributor in World-Wide Volkswagen
7
than with that of the manufacturer or the importer. The scope of
the foreseeable market served by the wholesale distributor and
the retail dealer in World-Wide Volkswagen was narrow, as were
the benefits they derived from that market. "In contrast, the
relevant scope is generally broader with respect to manufacturers
and primary distributors of products who are at the start of a
distribution system. . . . For this reason, [they] may be
subject to a particular forum's jurisdiction when a secondary
distributor and retailer are not . . . ." Bean, 744 F.2d at 1084
(quoting Nelson v. Park Indus., Inc., 717 F.2d 1120, 1125-26 (7th
Cir. 1983), cert. denied, 465 U.S. 1024 (1984)). T & D argues
that SBH advertises in trade publications that are circulated
nationwide and that its customer list "contains addresses of
customers located all over the country." This notwithstanding,
in our opinion SBH may be likened more readily to a secondary
distributor or a dealer than to a manufacturer at the headwaters
of the stream of commerce.
Moreover, the instant case is distinguishable from Ruston
and Bean. T & D contends that SBH advertised in national
publications, sold one forklift to a Louisiana resident,3 and
made phone calls to Louisiana. The defendant in Ruston was a
manufacturer with contacts to the forum state that were much more
3
The forklift sold directly into Louisiana was not the
propane-powered forklift purchased by T & D. In its August 15,
1995 Minute Entry, the district court stated: "SBH was involved
in one isolated sale to a Louisiana resident in 1990 for $1,100
amounting to .07% of SBH's total revenue for that year." SBH's
sales records indicate that this is the only instance of a direct
sale to a Louisiana resident since the company's inception.
8
substantial than SBH's contacts with Louisiana. The defendant in
Bean was a manufacturer that placed thousands of steel castings
into the stream of commerce. We do not find a manufacturer's
unchecked dispersion of thousands of component parts comparable
to the activities of a second-hand forklift dealer. A Louisiana
state court recently decided a case involving a California
company that sold, rented, and serviced airplanes; the company
advertised in national publications that reached Louisiana
residents and had serviced a California-owned airplane that was
sold to a Louisiana resident and subsequently rented to the
plaintiff's deceased husband. Mayo v. Tillman Aero, Inc., 640
So. 2d 314 (La. App. 3 Cir. 1994). The state court found that
"[i]f anything, [the defendant's] serving from time to time of a
Louisiana resident seeking pilot training or a Louisiana plane
owner requiring maintenance on his plane would only be a
fortuitous and random contact with Louisiana." Id. at 319. We
find that the SBH's contacts with Louisiana were random,
fortuitous, and attenuated. We conclude, therefore, that SBH did
not purposefully avail itself of the privilege of conducting
activities within Louisiana such that SBH is amenable to specific
personal jurisdiction in Louisiana.
B. Continuous and Systematic Contacts
T & D also contends that SBH is subject to general personal
jurisdiction in Louisiana. T & D argues that SBH has had
sufficiently continuous and systematic contacts with Louisiana to
constitute a general presence in the state. General jurisdiction
9
is proper as long as the defendant's contacts with the forum are
substantial. Wilson, 20 F.3d at 649 (citation omitted). In
Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984), the
Supreme Court elaborated on the requirement that contacts be
"substantial," by reference to the Supreme Court's seminal case
on point, Perkins v. Benguet Consol. Mining Co., 342 U.S. 437
(1952): "In Perkins, . . . [the corporation's] president, who
was also general manager and principal stockholder of the
company, returned to his home in Ohio where he carried on `a
continuous and systematic supervision of the . . . company.'"
465 U.S. at 779 n.11. The Keeton Court explains that Ohio
jurisdiction was proper because the company's files were kept
there, director's meetings were held there, and bank accounts
were maintained there. Id.
In the case sub judice, the district court found that SBH
did not have sufficiently continuous and systematic contact with
Louisiana to constitute the requisite minimum contacts necessary
for general personal jurisdiction. According to the affidavit of
Steven Hughes, president of SBH, as summarized by the district
court: "SBH has never been authorized to do business in
Louisiana. . . . never maintained an agent, employee, office,
bank account, mailing address or telephone listing in Louisiana.
. . . never owned immovable property in Louisiana. . . . never
employed persons in Louisiana. . . . never entered into a
contract in Louisiana." T & D, however, charged that SBH had had
contact with Louisiana in various ways: SBH advertised in
10
national publications that were distributed in Louisiana; SBH
sold a forklift to a Louisiana resident in 1990; SBH made a
number of telephone calls and sent faxes to Louisiana;4 and "SBH
seems to have transported equipment through Louisiana . . . ."
T & D relies on Pedelahore v. Astropark, 745 F.2d 346 (5th
Cir. 1984), to bolster its contention that SBH's contacts with
Louisiana were systematic and continuous. In Pedelahore, we held
that subjecting a nonresident amusement park to in personam
jurisdiction in Louisiana was constitutionally permissible,
despite the absence of a causal connection between the park and
the incident giving rise to the action, because the "contacts of
Astropark within the State of Louisiana were patently continuous
and systematic." Id. at 348. The contacts enumerated in
Pedelahore were as follows:
(1) An advertising program aimed at Louisianians,
including the distribution of brochures and thousands
of radio and television spots, together with
advertisements in local, national, and regional
publications . . . .
(2) A ticket assignment agreement with all Louisiana
travel agencies . . . .
(3) The conducting of a three-day seminar in New
Orleans in December 1982 by the Astropark Marketing
4
In its August 15, 1995 Minute Entry, the district court
explained:
T&D claims that because SBH contacted Louisiana by
telephone and/or facsimile over a four and a half year
period for a total of 313.20 minutes it has engaged in
"continuous and systematic" contact with Louisiana.
Even assuming that each of these contacts was "business
solicitation," at most, SBH's contacts with Louisiana
constituted only .002 percent of its 114,015.90 total
minutes. Such few contacts do not support a finding of
general jurisdiction.
11
Department, aimed, inter alia, at developing business
from Louisiana for the Houston operation.
(4) The appointment of a sales representative with
Louisiana as her area of responsibility.
Id. at 349. By contrast, SBH's contacts with Louisiana are
meager.
We find that SBH's isolated contacts with Louisiana do not
evidence an "invoking [of] the benefits and protections of its
laws." See Hanson, 357 U.S. at 253. At the heart of the general
jurisdiction analysis is the concept of "exchange." Bearry, 818
F.2d at 375. By invoking constructive consent, the concept of
exchange accommodates both the sovereign interest of the state
and the individual's interest in a fairly accessible forum. Id.
"That is, by invoking the benefits and protections of the forum's
laws, the nonresident defendant is seen as "consenting" to being
sued there." Id. But SBH's contacts with Louisiana--ads in
industry-wide publications, one used forklift sold to a resident,
and a smattering of phone calls--do not add up to the general
business presence found to exist in Perkins and Pedelahore.
Our examination of SBH's unrelated contacts in Louisiana
leads us to the conclusion that SBH's contacts were not
sufficiently continuous and systematic to support the exercise of
general personal jurisdiction in Louisiana. We cannot say that
because of these various brief contacts with Louisiana SBH
reasonably should have expected to be sued in Louisiana. These
contacts were not substantial enough to give rise to such an
expectation. Thus, we conclude that the assertion of general
personal jurisdiction over SBH would deprive SBH of its due
12
process liberty interest not to be subjected to suit in a distant
forum with which it has little connection.
Because we hold that SBH did not have sufficient related or
unrelated minimum contacts with Louisiana, we need not address
whether the exercise of personal jurisdiction in this case would
be consonant with "traditional notions of fair play and
substantial justice."
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
13