Vickie Miller v. Nippon Carbon Company ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2332
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Vickie Miller, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Nippon Carbon Company, Ltd., *
*
Appellee, *
*
Mitsubishi Logistics Corporation; *
Intermodal Cartage Company, Inc., *
*
Defendants. *
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Submitted: February 15, 2008
Filed: June 18, 2008
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Before BYE, RILEY, and BENTON, Circuit Judges.
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RILEY, Circuit Judge.
Vickie Miller (Miller), a resident of Arkansas, brought a wrongful death action
on behalf of her deceased husband against Nippon Carbon Company, Ltd. (Nippon),
a Japanese corporation. Finding no personal jurisdiction over Nippon, the district
court1 dismissed Miller’s lawsuit. Miller appeals the district court’s decision. We
affirm.
I. BACKGROUND
This wrongful death action arises out of a tragic incident involving Miller’s
husband, Larry Miller (Mr. Miller). Mr. Miller was killed while attempting to unload
a shipment of electrodes (heavy columns weighing approximately 4,800 pounds, used
in the production of steel) at President’s Island in Memphis, Tennessee. At the time
of the incident, the shipment was en route to Nucor Corporation (Nucor), an Arkansas
corporation. Nippon manufactured and sold the electrodes to Nucor. The following
are undisputed facts regarding the transaction:
1. Nippon manufactured the electrodes at its plant in Toyama, Japan.
2. Morohishi Freightage, Ltd. packed and loaded the electrodes into cargo
containers in Japan for shipment to Nucor.
3. Mitsubishi Logistics Corporation made all arrangements for
transportation of the cargo containers to their ultimate destination in Arkansas.
4. Yang Ming Marine Transport Corporation transported the cargo
containers by ocean freighter to Long Beach, California, and then by rail to Memphis,
Tennessee.
5. Global Material Services, LLC unloaded the cargo containers at
President’s Island, Tennessee, in preparation for the ultimate delivery by truck to
Nucor in Arkansas.
6. Mr. Miller worked for Global Material Services.
Miller initially sued four Japanese companies in a Tennessee federal district
court: Nippon (the manufacturer of the electrodes), Morohishi Freightage (the
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
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company Nippon hired to package and load the electrodes into cargo containers),
Yang Ming Marine (the carrier that shipped the cargo container to Tennessee), and
Mitsubishi Logistics (the company that arranged delivery of the electrodes to their
ultimate destination in Arkansas). The Tennessee district court dismissed the action
for lack of personal jurisdiction. The Tennessee district court also denied Miller’s
motion to transfer the action to Arkansas under 28 U.S.C. § 1404(a), which permits
the transfer of an action to any other district where the action might have been
brought.
Miller also filed suit in the Eastern District of Arkansas against Nippon.
Nippon moved to dismiss for lack of personal jurisdiction. Concluding there were
insufficient minimum contacts between Nippon and Arkansas, the district court
granted Nippon’s motion to dismiss. The district court found, among other things,
Nippon never registered to do business in Arkansas and did not maintain a registered
agent, bank account, office, or manufacturing plant in Arkansas, nor did Nippon
advertise in the state of Arkansas. The district court did find Nippon sent two
representatives to Nucor in Arkansas once or twice a year since 2003, but concluded
Mr. Miller’s death did not arise from Nippon’s contacts with Arkansas. The district
court first noted Miller did not argue general personal jurisdiction over Nippon and
then decided Miller’s claim that Arkansas had specific personal jurisdiction over
Nippon did not comport with due process. Miller appeals.
II. DISCUSSION
We review de novo a motion to dismiss for lack of personal jurisdiction, and
the nonmoving party needs only make a prima facie showing of jurisdiction. See
Dakota Indus., Inc. v. Dakota Sportswear Inc., 946 F.2d 1384, 1387 (8th Cir. 1991).
If jurisdiction has been controverted, the plaintiff has the burden of proving facts
supporting personal jurisdiction. See Dever v. Hentzen Coatings, Inc., 380 F.3d 1070,
1072 (8th Cir. 2004). “The plaintiff’s ‘prima facie showing’ must be tested, not by
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the pleadings alone, but by the affidavits and exhibits presented with the motions and
opposition thereto.” Id. (quotations and citations omitted).
A federal court may exercise jurisdiction “over a foreign defendant only to the
extent permitted by the forum state’s long-arm statute and by the Due Process Clause
of the Constitution.” Dakota Indus., Inc. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir.
1994) (citation omitted). The Arkansas long-arm statute confers jurisdiction to the
fullest extent permitted by the Due Process Clause. Dever, 380 F.3d at 1073. The Due
Process Clause requires that “minimum contacts” exist between the nonresident
defendant and the forum state before the court can exercise jurisdiction over the
defendant. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291
(1980).
“Sufficient contacts exist when the defendant’s conduct and connection with
the forum state are such that he should reasonably anticipate being haled into court
there, and when maintenance of the suit does not offend traditional notions of fair play
and substantial justice.” Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th
Cir. 1994) (quoting Soo Line R.R. Co. v. Hawker Siddeley Canada, Inc., 950 F.2d
526, 528 (8th Cir. 1991)). “In assessing the defendant’s reasonable anticipation, there
must be some act by which the defendant purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the benefits and
protections of its laws.” Id. at 818-19; see Burger King Co. v. Rudzewicz, 471 U.S.
462, 475-76 (1985). We have adopted “a five-part test for measuring minimum
contacts: (1) the nature and quality of the contacts with the forum state; (2) the
quantity of those contacts; (3) the relation of the cause of action to the contacts; (4) the
interest of the forum state in providing a forum for its residents; and (5) the
convenience of the parties.” Id. at 819 (citing Land-O-Nod Co. v. Bassett Furniture
Indus., Inc., 708 F.2d 1338, 1340 (8th Cir. 1983)). With respect to the third factor, we
distinguish between specific jurisdiction and general jurisdiction. Id. “‘Specific
jurisdiction refers to jurisdiction over causes of action arising from or related to a
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defendant’s actions within the forum state,’ while ‘[g]eneral jurisdiction . . . refers to
the power of a state to adjudicate any cause of action involving a particular defendant,
regardless of where the cause of action arose.’” Id. (quoting Sondergard v. Miles,
Inc., 985 F.2d 1389, 1392 (8th Cir. 1993)).
Because Miller does not contend on appeal that the basis for personal
jurisdiction is the “continuous and systematic” contacts with the forum state, i.e.,
general jurisdiction, Johnson v. Woodcock, 444 F.3d 953, 956 (8th Cir. 2006), we
consider whether specific jurisdiction exists over the defendants. In doing so, “[a]t
a minimum . . . we will consider . . . the nature and quality of the contacts, and [their]
source and connection to the cause of action.” Lakin v. Prudential Sec., Inc., 348 F.3d
704, 712 (8th Cir. 2003) (internal quotation marks omitted).
With respect to the nature and quality of the contacts with the forum state,
Nippon’s contacts with Arkansas are limited. Nippon is not licensed to do business
in Arkansas and has no agents, offices, employees, or property in Arkansas. Nippon
contends its contacts of selling electrodes to Nucor and sending two representatives
to visit Nucor in Arkansas once or twice a year do not constitute contacts from which
Miller’s claims arise. Nippon states it was not involved in packaging, shipping,
loading or unloading the electrodes, thus, it was not involved in the event that caused
Mr. Miller’s death. According to Nippon, the packaging, shipping, loading and
unloading of the electrodes were performed by subcontractors. Nippon emphasizes
that when Mr. Miller unloaded the electrodes, he was following orders from his
employer, Global Material Services, not from Nippon. Therefore, Nippon asserts its
contacts with Arkansas are not enough to establish that Miller’s claims arise from
those contacts.
To support its position, Nippon relies on Morris v. Barkbuster, Inc., 923 F.2d
1277 (8th Cir. 1991). In Barkbuster, F.W. and Associates, Inc. (FWA), an Ohio
corporation with its principal place of business in Arizona, sold a log splitter under the
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trade name Barkbuster to Diversified Distributing, Inc. (DDI), a Minnesota
corporation. Id. at 1279. Pursuant to the contract for the sale of the Barkbuster
product line, FWA shipped twenty-one truckloads of material, including some
completed units, to DDI in Minnesota. Id. In addition, FWA sent five employees to
Minnesota to assist DDI in conducting a physical inventory. Id. Owners of FWA also
attended a dinner party in Minnesota relating to the sale of Barkbuster products. Id.
A few years after the sales transaction between FWA and DDI, David Morris
(Morris), a citizen of Kentucky, lost both of his arms in an accident in Kentucky
involving a Barkbuster log splitter distributed by DDI. Id. Morris filed suit for
damages in Kentucky federal court, naming FWA as one of the defendants. Id. The
Kentucky court concluded it lacked personal jurisdiction and granted FWA’s motion
to dismiss. Id. Morris then filed his action in the federal district court of Minnesota.
Id. In his Minnesota action, Morris alleged FWA negligently designed the log splitter
and failed to warn potential users of foreseeable dangers associated with its use. Id.
The district court granted FWA’s motion to dismiss for lack of personal jurisdiction.
Id. In affirming the district court, we explained:
Although FWA shipped parts to Minnesota pursuant [to] the sales
contract and three times sent its employees there, these actions related to
the implementation of the sales contract and the transition of ownership,
not to the design of the log splitters.
Id. at 1281-82 (emphasis added).
Like Barkbuster, although Nippon sold electrodes to an Arkansas corporation
pursuant to a sales contract, and Nippon’s representatives visited Arkansas once or
twice per year, these contacts do not sufficiently, for due process purposes, relate to
the packing, shipping and unloading of the electrodes, the events which allegedly gave
rise to Miller’s cause of action, and do not permit the exercise of personal jurisdiction
over Nippon in this case.
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Miller alleges Nippon had the duty to ensure the safe packing of the electrodes,
but this conclusory allegation is not enough to establish personal jurisdiction. Miller
has the burden of proving facts supporting personal jurisdiction, “not by the pleadings
alone, but by the affidavits and exhibits.” Dever, 380 F.3d at 1072 (quotations and
citations omitted). Nothing in this record shows Nippon bore this duty and could
reasonably anticipate being haled into an Arkansas court to defend a dispute over how
to pack, ship, load and unload the electrodes.
Furthermore, we note essentially all of the witnesses and documents concerning
the packaging, shipping and unloading of the electrodes are primarily in Japan or
otherwise outside Arkansas. Although Arkansas certainly has a legitimate interest in
providing a forum for its residents, that interest does not overcome the substantial
inconvenience for the parties to resolve Miller’s allegations in Arkansas. The
inconvenience to the parties and their witnesses, under the facts of this case, is a factor
that militates against Miller for purposes of establishing personal jurisdiction over
Nippon. See St. Jude Med., Inc. v. Lifecare Intern., Inc., 250 F.3d 587, 591 (8th Cir.
2001) (stating, “[e]ven if the minimum contacts threshold is established, personal
jurisdiction may be defeated if its exercise would be unreasonable considering such
factors as [] the burden on the defendant.”).
Applying our five-part test for measuring minimum contacts, see Bell Paper
Box, Inc., 22 F.3d at 819, convinces us traditional notions of fair play and substantial
justice do not afford an Arkansas court personal jurisdiction over non-resident Nippon
for Miller’s claims.
III. CONCLUSION
The district court properly granted Nippon’s motion to dismiss for lack of
personal jurisdiction. Miller’s claims are dismissed without prejudice.
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