Dow Chem v. Calderon , 422 F.3d 827 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE DOW CHEMICAL CO.; SHELL 
OIL COMPANY; SHELL CHEMICAL
COMPANY,
Plaintiffs-Appellants,
v.
JERONIMO ANIBAL FLORIAN
CALDERON; REYNALDO DIONISIO
GARCIA GOMEZ; ESTEBAN ROBERTO
ROMERO MARTINEZ; JOSE EUGENIO
VIVAS ESPINO; JULIO ALBERTO
CALVO ROJAS; JUAN OBALDO No. 04-56582
MARTINEZ GONZALEZ; FRANCISCO
VALERIO GOMEZ MENESES; RENE  D.C. No.
CV-04-00356-NM
JOAQUIN MONTESINO HERNANDEZ;
MARCOS ANTONIO CACERES OPINION
MARTINEZ; SANTIAGO CRISTOBAL
MUNG ZAVALA; OSMAR DANILO
ESPINALES REYES; SIXTO TERCERO;
JUAN IRENE VILLALOBOS; RAMIRO
JOSE GARCIA; VENANCIO ANTONIO
HERNANDEZ; JUSTINO NICOLAS
MEDINA; JOEL EPIFANIO CABALLERO
BARRERA; ADOLFINA DEL CARMEN
CANDIA RODRIGUEZ; ADOLFINA DEL
CARMEN CANDIA AGUIRRE; AURA
ESTELA PALMA CASTRO;

11553
11554 THE DOW CHEMICAL CO. v. CALDERON
FLORENTINA MARADIAGA 
RODRIGUEZ; ALBERTINA ORTEGA
OVIEDO; FILOMENA ZAMORA ROJAS;
LIDIA DEL CARMEN ROMERO 
FRANCO; LASTENIA ROGELIO ACUNA
GONZALES,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Nora M. Manella, District Judge, Presiding
Argued and Submitted
July 13, 2005—Pasadena, California
Filed August 25, 2005
Before: Stephen Reinhardt, Alex Kozinski, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
THE DOW CHEMICAL CO. v. CALDERON 11557
COUNSEL
Michael P. Foradas, Kirkland & Ellis LLP, Chicago, Illinois,
argued the case for the appellants and was on the briefs of the
appellants, as attorney for The Dow Chemical Company.
Gabriela I. Monahan, Kirkland & Ellis LLP, Chicago, Illinois,
and C. Robert Boldt, Rick Richmond, Kirkland & Ellis LLP,
Los Angeles, California, and Michael L. Brem, Baker Botts
LLP, Houston, Texas, were also on the briefs of the appel-
lants, as attorneys for the same party.
David W. Ogden, Jennifer M. O’Connor, Wilmer, Cutler,
Pickering, Hale & Dorr LLP, Washington, DC, and Christo-
11558 THE DOW CHEMICAL CO. v. CALDERON
pher Tayback, Quinn, Emanual, Urquhart, Oliver & Hedges
LLP, Los Angeles, California, were on the briefs of the appel-
lants, as attorneys for the Shell Oil Company and Shell Chem-
ical Company.
Howard Miller, Girardi & Keese, Los Angeles, California,
argued the case and was on the briefs for the appellees. Walter
J. Lack, Paul A. Traina, Sean A. Topp, Engstrom, Lipsomb &
Lack, Los Angeles, California, and Thomas V. Girardi,
Girardi & Keese, Los Angeles, California, were also on the
briefs of the appellees.
OPINION
BERZON, Circuit Judge:
The Dow Chemical Company, Shell Oil Company, and
Shell Chemical Company (“the Companies”) sued more than
a thousand Nicaraguan citizens (“the Nicaraguans”) in federal
district court in California. The Companies seek a declaration
that (1) they are not liable for any injuries to the Nicaraguans
caused by dibromochloropropane, a toxic pesticide commonly
known as “DBCP”; and (2) any judgments of Nicaraguan
courts to the contrary are not enforceable in this country. The
question before us is whether the Nicaraguans consented to
personal jurisdiction by either (1) choosing to file suit in Nic-
aragua under a Nicaraguan law that requires American com-
panies to deposit a specified sum or submit unconditionally to
the jurisdiction of U.S. courts; or (2) defending on the merits
a declaratory judgment action brought by a different company
in the same federal district court concerning the same set of
underlying Nicaraguan judgments. The district court rejected
both of these contentions. Agreeing with the district court, we
hold that the Nicaraguan defendants did not consent to per-
sonal jurisdiction in this action.
THE DOW CHEMICAL CO. v. CALDERON 11559
I. FACTUAL AND LEGAL BACKGROUND
The underlying disputes in this case concern whether the
Companies are liable for injuries allegedly caused by expo-
sure to DBCP. DBCP was used by fruit and vegetable grow-
ers throughout the world in the 1950’s, 60’s, and 70’s. By
1979, use of DBCP in the United States was generally prohib-
ited.
Thousands of plaintiffs, including several Nicaraguans,
brought suit in the United States in the mid-1990’s against
both the manufacturers of DBCP and fruit companies that
allegedly continued to use DBCP in developing countries
after it was banned in the United States. See Delgado v. Shell
Oil Co., 890 F. Supp. 1324, 1335-36 (S.D. Tex. 1995). With
respect to the Nicaraguan plaintiffs, the court in Delgado
determined that Nicaraguan courts offered an adequate and
more convenient alternative forum, see id. at 1362, and dis-
missed the suit on forum non conveniens grounds. See id. at
1372-73.
In 2001, the National Assembly of Nicaragua passed the
“Special Law for the Conduct of Lawsuits Filed By Persons
Affected By the Use of Pesticides Manufactured with a DBCP
Base,” known as “Special Law No. 364.”1 Of import to this
appeal are two procedural sections, Articles 4 and 7 of Special
Law No. 364.
Article 4 requires defendants to deposit “within ninety (90)
days after the respective lawsuits have been brought before
the courts of [Nicaragua], the sum of one hundred thousand
dollars or the equivalent thereof in cordobas . . . as a proce-
dural prerequisite for being able to take part in the lawsuit.”2
Special Law No. 364, art. 4. Relatedly, Article 7 states:
1
The record in this case includes an English translation of Special Law
No. 364 from The Gazette (January 17, 2001). The parties do not contest
the accuracy of this translation. We will quote directly from it.
2
In addition, Article 8 requires defendants to post a bond of 300 million
cordobas (approximately $20 million) to guarantee potential judgments.
Special Law No. 364, art. 8.
11560 THE DOW CHEMICAL CO. v. CALDERON
Companies that, within ninety (90) days of being
given notice of this Law by the plaintiff and service
of process through the corresponding channel, have
not deposited the sum established in Article 4 hereof,
must subject themselves unconditionally to the juris-
diction of the courts of the United States of America
for the final judgment of the case in question,
expressly waiving the defense of forum non conve-
niens invoked in those courts. In the event that the
[companies] decide that the proceedings are to con-
tinue in the Nicaraguan courts, they are to deposit
the amount established in Article 4 of this Law.
Id. art. 7.
Nicaraguans suing under Special Law No. 364 have
obtained more than $715 million in judgments against U.S.
companies, including The Dow Chemical Company, Shell Oil
Company, Shell Chemical Company, and Dole Food Com-
pany, many of which were issued without participation by the
defendant held liable. Facing potential attempts at enforce-
ment of the various judgments rendered in Nicaragua, Dow
Chemical and the two Shell Companies filed a declaratory
judgment action against 1,030 named Nicaraguans3 on Janu-
ary 21, 2004, in the Central District of California. The Com-
panies’ First Amended Complaint seeks a declaration that (1)
the companies are not liable to the Nicaraguans “for any
3
The companies’ First Amended Complaint alleges that the Nicaraguans
named as defendants are “among thousands of Nicaraguans who have filed
more than 80 lawsuits in various civil courts in Nicaragua.” This action,
however, is limited to the 1,030 named Nicaraguans, listed in Exhibit B
to the First Amended Complaint, involved in seventeen Nicaraguan law-
suits identified in paragraph 9 of the First Amended Complaint. Thus, this
appeal does not reach all Nicaraguans who have filed lawsuits under Spe-
cial Law No. 364 in Nicaragua; for example, while the complaint dis-
cusses at length the 466 Nicaraguan plaintiffs in Franco Franco v. The
Dow Chemical Co., CV 03-5094 NM (PJWx) (C.D. Cal. filed on Oct. 21,
2003), those individuals were not named as defendants in this suit.
THE DOW CHEMICAL CO. v. CALDERON 11561
asserted injuries allegedly caused by exposure in Nicaragua to
products purportedly manufactured by Plaintiffs;” and (2) that
any judgment obtained by the Nicaraguans in Nicaragua is not
recognizable or enforceable in the United States. The Nicara-
guans moved to dismiss the complaint under Fed. R. Civ. P.
12(b)(2) (lack of personal jurisdiction) and Fed. R. Civ. P.
12(b)(6) (failure to state a claim).
Dole Food Company filed a separate declaratory judgment
action against 465 of the 1030 Nicaraguans (“the Managuan
defendants”) named in this suit. See Dole Food Co. v. Gutier-
rez, No. CV 03-9416 NM (PJWx) (C.D. Cal. filed July 14,
2004). The Nicaraguans in Dole Food Co. waived any objec-
tion to personal jurisdiction in that case by filing a motion
under Fed. R. Civ. P. 12(b)(6). Id. The district court in Dole
Food Co. noted that “[h]ad the issue been raised, it is doubtful
that this court would have found a basis to exercise personal
jurisdiction over the [Nicaraguans],” id. at n.8, and dismissed
most of the claims on the 12(b)(6) grounds; Dole Food volun-
tarily dismissed the remainder of its case.
In this case, the district court granted the Nicaraguans’
motion to dismiss for lack of personal jurisdiction, concluding
that none of the Nicaraguans had consented to jurisdiction.
The Companies appeal.
II. PERSONAL JURISDICTION
We review de novo the district court’s determination that it
does not have personal jurisdiction over defendants. See
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800
(9th Cir. 2004). “Personal jurisdiction over a nonresident
defendant is tested by a two-part analysis. First, the exercise
of jurisdiction must satisfy the requirements of the applicable
state long-arm statute. Second, the exercise of jurisdiction
must comport with federal due process.” Chan v. Soc’y Expe-
ditions, Inc., 39 F.3d 1398, 1404-05 (9th Cir. 1994). Califor-
nia’s long-arm statute, Cal. Civ. Proc. Code § 410.10, allows
11562 THE DOW CHEMICAL CO. v. CALDERON
courts to “exercise jurisdiction on any basis not inconsistent
with the Constitution of [California] or of the United States.”
This provision allows courts to exercise jurisdiction to the
limits of the Due Process Clause of the U.S. Constitution. See
Mattel, Inc. v. Greiner & Hausser GMBH, 354 F.3d 857, 863
(9th Cir. 2003). Thus, the governing standard here would be
whether exercise of personal jurisdiction comports with due
process.
[1] “The Due Process Clause protects an individual’s lib-
erty interest in not being subject to the binding judgments of
a forum with which he has established no meaningful ‘con-
tacts, ties, or relations.’ ” Burger King Corp. v. Rudzewicz,
471 U.S. 462, 471-72 (1985) (quoting Int’l Shoe Co. v. Wash-
ington, 326 U.S. 310, 319 (1945)). “[T]he test for personal
jurisdiction requires that ‘the maintenance of the suit . . . not
offend traditional notions of fair play and substantial jus-
tice.’ ” Ins. Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702-03 (1982) (quoting International
Shoe, 326 U.S. at 316 (internal quotation marks omitted))
(ellipsis in original).
[2] As “[t]he personal jurisdiction requirement recognizes
and protects an individual liberty interest,” id. at 702, “it can,
like other such rights, be waived.” Id. at 703. “[B]ecause the
personal jurisdiction requirement is a waivable right, there are
a ‘variety of legal arrangements’ by which a litigant may give
‘express or implied consent to the personal jurisdiction of the
court.’ ” Burger King, 471 U.S. at 472 n.14 (quoting Insur-
ance Corp., 456 U.S. at 703); see also Chan, 39 F.3d at 1406.
For instance, “parties to a contract may agree in advance to
submit to the jurisdiction of a given court.” Nat’l Equip.
Rental, Ltd. v. Szukhent, 375 U.S. 311, 316 (1964).
“[P]articularly in the commercial context, parties frequently
stipulate in advance to submit their controversies for resolu-
tion within a particular jurisdiction.” Burger King, 471 U.S.
at 472 n.14. When such understandings “have been obtained
through ‘freely negotiated’ agreements and are not ‘unreason-
THE DOW CHEMICAL CO. v. CALDERON 11563
able and unjust,’ their enforcement does not offend due pro-
cess.” Id. (quoting The Bremen v. Zapata Off-Shore Co., 407
U.S. 1, 15 (1972)).
The Companies specifically disavow any contention that
the Nicaraguans had sufficient minimum contacts with Cali-
fornia to establish specific jurisdiction in compliance with due
process. Instead they argue that the Nicaraguans consented to
the personal jurisdiction of the district court in two ways:
First, the Companies maintain that the Nicaraguans’ decision
to sue under Special Law No. 364 constitutes consent because
that law functions like a forum selection clause. Second, the
Companies contend that the Managuan defendants impliedly
consented to personal jurisdiction in this action by defending
Dole Food Co. on the merits. We address these contentions
separately.
A. Special Law No. 364 As A Forum Selection Clause
[3] The Companies’ first contention is based on the text of
Article 7 of Special Law No. 364. Article 7 provides that
defendants sued by a Nicaraguan citizen claiming injuries
related to DBCP in a Nicaraguan court either “must subject
themselves unconditionally to the jurisdiction of the courts of
the United States of America for the final judgment of the
case in question,” or post the deposit required by the Law as
a condition of defending the case in Nicaragua. The Compa-
nies suggest that this clause gives them an option to adjudi-
cate the dispute in United States courts if they wish. In light
of this option, the Companies argue, the Nicaraguans’ choice
to sue in Nicaragua under the Special Law constitutes consent
to suit in the United States should the Companies choose to
invoke the jurisdiction of our courts. While creative, this
argument fails for several reasons.
As the Companies concede, it is an “obvious proposi-
tion[ ]” that “the Nicaraguan Legislature cannot confer per-
sonal jurisdiction over [Nicaraguan citizens] in United States
11564 THE DOW CHEMICAL CO. v. CALDERON
courts.” The “forum selection clause” cases upon which the
Companies rely universally concern private, commercial con-
tractual arrangements. See, e.g., Szukhent, 375 U.S. at 315-16(only concerning parties to a contract); Chan, 39 F.3d at 1406(referring to the “commercial context”).
The Companies attempt to bridge this gap by characterizing
the Nicaraguans’ decision to sue under Special Law No. 364
as a choice analogous to the choice to consent to a forum
selection clause. The suggested analogy between deliberate
private decisions regarding the choice of forum expressly
recorded as part of a larger agreement, and the implied,
government-created choice the Companies ask us to infer is
not persuasive.
[4] First, as noted above, forum selection clauses are only
enforceable where they “have been obtained through ‘freely
negotiated’ agreements. . . .’ ” Burger King, 471 U.S. at 472
n.14 (emphasis added) (quoting The Bremen, 407 U.S. at 15).
There was no free negotiation in this instance. The Nicara-
guan plaintiffs had no opportunity individually to set up the
terms upon which they would litigate against the Companies.
Moreover, the Companies never had a chance to negotiate
the terms of Special Law No. 364 either. And, far from seek-
ing to enforce the terms of the Special Law, the Companies
are seeking to attack it as fundamentally unfair. As the suit as
a whole challenges rather than relies upon the Special Law,
there is no basis for treating one provision only as if it were
agreed upon among all parties.
Finally, even if there could be instances in which the choice
to litigate under a particular foreign statute could provide suf-
ficient assurance of free consent to jurisdiction elsewhere, the
text of Special Law No. 364 provides no basis whatever for
inferring such consent. Article 7 exclusively addresses the
jurisdiction of United States courts over defendant companies
THE DOW CHEMICAL CO. v. CALDERON 11565
sued under the Special Law, not over the plaintiffs in the
cases filed in Nicaragua.
The Companies contend that despite Article 7’s complete
silence as to the obligations of Nicaraguan citizens, the Nica-
raguans should have interpreted it as obligating all parties to
submit to the jurisdiction of U.S. courts. This reading of the
Nicaraguan law lacks any basis in the text.
[5] Article 7 is most reasonably read to state that if a com-
pany refuses to submit to the jurisdiction of Nicaraguan courts
by electing not to deposit the required sum, then it must, if
sued in the United States, submit unconditionally to the juris-
diction of United States courts, waiving objections to jurisdic-
tion. That is the usual import of the phrase “subject
themselves . . . to the jurisdiction of the courts of the United
States” (emphasis added); one is “subjected” to jurisdiction as
a defendant, one invokes jurisdiction as a plaintiff. Also, Arti-
cle 7 refers to “the defense of forum non conveniens,” (first
emphasis added), again indicating that the concern is with
assuring that companies sued in Nicaragua will consent to suit
in the United States of America if sued there.
This reading of Article 7 comports with the previous his-
tory of DBCP litigation brought by Nicaraguan plaintiffs: The
corporate defendants successfully sought dismissal of lawsuits
in the United States in favor of jurisdiction in Nicaragua. See
Delgado, 890 F. Supp. at 1372-73. Indeed, Article 3 of Spe-
cial Law No. 364 specifically refers to these transferred law-
suits.4 Under this reading, a defendant company has the option
4
Article 3 states in full:
The companies sued in the United States of America, which,
because of having chosen to have the lawsuits transferred to Nic-
araguan courts, currently are being sued in courts of our country,
shall be required to compensate, once the scope of the claim is
established in the respective judicial proceeding, with a minimum
sum equivalent to One Hundred Thousand American Dollars, or
11566 THE DOW CHEMICAL CO. v. CALDERON
of posting the requisite bond Article 7 imposes on it and
defending the case in the Nicaraguan courts or waiving its
otherwise cognizable objections to jurisdiction in the United
States.
[6] In contrast, nothing in Article 7 appears to impose
reciprocal obligations upon the Nicaraguan plaintiffs if sued
in the United States. The provision on its face does not cover
instances in which companies sued in Nicaragua affirmatively
invoke the jurisdiction of our courts, and it does not include
any language stating a requirement that the plaintiffs in the
Nicaraguan actions “subject themselves unconditionally to the
jurisdiction of courts of the United States” as defendants.
[7] In the face of these omissions, we cannot ascribe to the
Nicaraguans a choice, by filing suit in Nicaragua under the
Special Law, to subject themselves to jurisdiction in the
United States at the Companies’ option. Rather, the Nicara-
guan plaintiffs had every reason to understand Article 7 as
putting only the Companies to a choice with jurisdictional
consequences.
[8] For these reasons, we hold that the Nicaraguans’ deci-
sion to sue under Special Law No. 364 in Nicaraguan courts
does not constitute consent to U.S. jurisdiction. That decision
is legally and factually distinguishable from the execution of
a valid and enforceable forum selection clause.
the equivalent thereof in córdobas at the official rate of exchange
in effect at the time of payment of this compensation, depending
on the severity of the case, each affected party who filed a com-
plaint in our courts and when it has been verified that the said
party’s health has been physically or psychologically affected.
THE DOW CHEMICAL CO. v. CALDERON 11567
B. Implied Consent Through Waiver Of Personal
Jurisdiction Obligation In Other Litigation
The Companies’ other contention concerns the participation
of 465 of the Nicaraguans (the Managuan defendants) in Dole
Food Co. v. Gutierrez, a separate lawsuit. Dole Food Co. was
a declaratory judgment action brought by a company that is
not a plaintiff here, although the action concerns the same
underlying Nicaraguan judgments. The Managuan defendants
did not object to personal jurisdiction over them in the Dole
action, but instead filed a dismissal motion under Fed. Civ. P.
12(b)(6) for failure to state a claim.5 The Companies argue
that by failing to object to lack of personal jurisdiction in that
suit, the Managuan defendants impliedly consented to per-
sonal jurisdiction in this action. We reject this argument as
well.
The Companies ask us to adopt, for the first time in this cir-
cuit, the holdings of two out-of-circuit decisions: General
Contracting & Trading Co. v. Interpole, Inc., 940 F.2d 20 (1st
Cir. 1991), and International Transactions Limited v. Embo-
telladora Agral Regionmontana S.A. de C.V., 277 F. Supp. 2d
654 (N.D. Tex. 2002), and suggest that those holdings would
be determinative. We assume without deciding that this cir-
cuit would follow Interpole and Embotelladora, but conclude
that the analysis contained in those cases does not aid the
Companies.
The procedural facts of Interpole and Embotelladora are
similar. In Interpole, Interpole sued the Transamerican Steam-
ship Corporation (“Trastco”) in a third-party complaint for
indemnity. A default judgment issued against Trastco (Suit
No. 1). Trastco later brought suit against Interpole in the same
federal district court (Suit No. 2), charging fraud and misrep-
5
Although the district court assumed otherwise, the Managuan defen-
dants state in their brief in this court that their submission to jurisdiction
in Dole was deliberate, as they preferred to litigate on the merits in that
appeal.
11568 THE DOW CHEMICAL CO. v. CALDERON
resentation in connection with the same overall transaction
involved in Suit No. 1. 940 F.2d at 21. The First Circuit held:
Whatever label one might place on Trastco’s con-
duct, it seems pellucidly clear that, by bringing Suit
No. 2, Trastco submitted itself to the district court’s
jurisdiction in Suit No. 1. Trastco elected to avail
itself of the benefits of the New Hampshire courts as
a plaintiff, starting a suit against Interpole. By so
doing, we think it is inevitable that Trastco surren-
dered any jurisdictional objections to claims that
Interpole wished to assert against it in consequence
of the same transaction or arising out of the same
nucleus of operative facts.
Id. at 23 (footnote omitted).
In Embotelladora, Sharp Capital, Inc., purchased a promis-
sory note entered into by Agral, a Mexican corporation. 277
F. Supp. 2d at 658. Agral defaulted on the promissory note,
and Sharp initiated arbitration proceedings. Id. In response,
Agral filed two suits against Sharp in the Northern District of
Texas. Id. at 659. When Sharp ultimately won an arbitration
award of more than $11 million, Sharp’s assignee sued Agral
to enforce payment of the Award. Id. Agral moved to dismiss
for lack of personal jurisdiction. Id. Citing to Interpole, the
Northern District of Texas determined that by filing a com-
plaint against Sharp concerning the same transaction (the
promissory note for the bottling plant), Agral affirmatively
sought relief from the same court concerning the same trans-
action or occurrence they were defending against; the court
therefore denied Agral’s motion to dismiss for lack of per-
sonal jurisdiction. Id. at 667-69.
[9] Taken together, these two cases establish an affirmative
relief rule, specifying that personal jurisdiction exists where
a defendant also independently seeks affirmative relief in a
separate action before the same court concerning the same
THE DOW CHEMICAL CO. v. CALDERON 11569
transaction or occurrence. Such action “may take place prior
to the suit’s institution, or at the time suit is brought, or after
suit has started.” Interpole, 940 F.2d at 22 (internal citations
omitted).
[10] The Companies’ argument here is limited to address-
ing only consent-based jurisdiction; as noted, they expressly
disavow any argument for personal jurisdiction on the basis
of “minimum contacts” specific jurisdiction.6 Interpole, how-
ever, at least in part addresses specific jurisdiction, as it
invokes the language pertinent to that doctrine. See 940 F.2d
at 24 (“Upholding the forum court’s assumption of jurisdic-
tion over Trastco in Suit No. 1 seems a small price to exact
for allowing Trastco purposefully to avail itself of the benefits
of a New Hampshire forum as a plaintiff in Suit No. 2.”).
Similarly, Embotelladora uses a specific jurisdiction “mini-
mum contacts” analysis; it does not speak at all of consent-
based jurisdiction. See 277 F. Supp. 2d at 666-69. It thus
appears to us that Interpole and Embotelladora rest primarily
on the conclusion that there is nothing unfair, or violative of
due process, about requiring a party that has affirmatively
sought the aid of our courts with regard to a particular trans-
action to submit to jurisdiction in the same forum as a defen-
dant with regard to the same transaction with the same party.
[11] As noted, the Companies here have expressly
eschewed any “minimum contacts” specific jurisdiction anal-
ysis, and rest only on the contention that the Managuan defen-
dants have consented to suit. As for the contention that has
6
“Where a forum seeks to assert specific juridiction over an out-of-state
defendant who has not consented to suit there,” due process is satisfied if
the defendant has established “minimum contacts” with the forum such
that (1) “the defendant has ‘purposefully directed’ his activities at resi-
dents of the forum,” (2) “the litigation results from alleged injuries that
‘arise out of or relate to’ those activities,” and (3) the exercise of jurisdic-
tion is reasonable. See Burger King, 471 U.S. at 472, 477 (internal cita-
tions omitted); see also Bancroft & Masters, Inc. v. Augusta Nat’l, Inc.,
223 F.3d 1082, 1086 (9th Cir. 2000).
11570 THE DOW CHEMICAL CO. v. CALDERON
been raised — that the defense on the merits in the Dole
action constituted consent by the Nicaraguans to the present
action — we hold that defense on the merits in a suit brought
by one party cannot constitute consent to suit as a defendant
brought by different parties. As we have noted above, it is
doubtful that a party could demonstrate consent solely
through an Interpole/Embotelladora-like contact. Even if we
were to conclude otherwise, however, we would not stretch
those cases to cover this one.
Interpole and Embotelladora rely upon the fact that the
party objecting to jurisdiction (the Nicaraguans in this case)
was also affirmatively availing itself of the relevant forum.
See Interpole, 940 F.2d at 23; Embotelladora, 277 F. Supp. 2d
at 668. Interpole, moreover, places emphasis on the phrase
“as a plaintiff” in encapsulating its holding. 940 F.2d at 23.
This requirement that the party defendant objecting to per-
sonal jurisdiction have acted affirmatively to seek the aid of
courts in the relevant forum has been underscored in both of
the later characterizations of Interpole by the First Circuit. See
Martel v. Stafford, 992 F.2d 1244, 1248 (1st Cir. 1993) (char-
acterizing Interpole as “ruling that a plaintiff who purpose-
fully avails himself of a particular forum surrenders
jurisdictional objections to claims arising out of the same
transaction that are brought against him in the same forum”
(emphasis added)); Precision Etchings & Findings, Inc. v.
LGP Gem Ltd., 953 F.2d 21, 25 (1st Cir. 1992) (citing Inter-
pole for the idea that “implied submission” to jurisdiction
occurs when a party “bring[s] independent action” to “seek
affirmative relief”). The two other circuits to address Inter-
pole are in accord with this interpretation. See Rates Tech.
Inc. v. Nortel Networks Corp., 399 F.3d 1302, 1308 n.5 (Fed.
Cir. 2005) (noting the filing of suit as important to that rul-
ing); PaineWebber Inc. v. Chase Manhattan Private Bank
(Switzerland), 260 F.3d 453, 460 & n.8 (5th Cir. 2001)
(describing Interpole as a case “in which the party seeking to
avoid the court’s jurisdiction has chosen to commence the
THE DOW CHEMICAL CO. v. CALDERON 11571
action or a related action in the very forum in which it is con-
testing personal jurisdiction” (emphasis added)).
[12] Here, the Managuan defendants have only defended
against two separate actions concerning a single foreign judg-
ment in the same court. It is true that the Nicaraguans made
a choice in the Dole action to defend on the merits. But that
choice was made only after they were haled into the district
court by Dole. Without an independent affirmative decision to
seek relief in our courts, there can be no imputation of a con-
scious decision to settle all aspects of a dispute here.
Moreover, this case does not implicate the “unjust asymme-
try” that occurs with “allowing a party . . . to enjoy the full
benefits of access to a state’s courts qua plaintiff, while none-
theless retaining immunity from the courts’ authority qua
defendant in respect to claims asserted by the very party it
was suing.” Interpole, 940 F.2d at 23. Here, we have multiple
plaintiffs suing the same set of Nicaraguan defendants in sep-
arate suits. That the defendants won on the merits in one suit
and won on a jurisdictional objection in the other is not the
asymmetry that concerned the Interpole court.
[13] We therefore hold that the Managuan group of 465
Nicaraguans did not consent to jurisdiction in this action by
waiving their personal jurisdiction objection in the Dole
declaratory judgment action.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
dismissal of the action for lack of personal jurisdiction.