State v. Atlantic Richfield Company , 201 Vt. 343 ( 2016 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.
2016 VT 22
No. 2015-204
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Civil Unit,
Washington Division
Atlantic Richfield Company, et al. October Term, 2015
Mary Miles Teachout, J.
William H. Sorrell, Attorney General, Scot L. Kline, Gavin J. Boyles and Robert F. McDougall,
Assistant Attorneys General, Montpelier, Matthew F. Pawa, Benjamin A. Krass and Wesley
Kelman of Pawa Law Group, P.C., Newton Centre, Massachusetts, Robert J. Gordon, Robin
Greenwald and William A. Walsh of Weitz & Luxenberg, P.C., New York, New York, and
Scott Summy, Celeste Evangelisti and Carla Burke Pickrel of Baron & Budd, P.C., Dallas,
Texas, for Plaintiff-Appellee.
Harry R. Ryan and Eric J. Morgan of Ryan Smith & Carbine, Ltd., Rutland, and M. Coy
Connelly and Amy E. Parker of Bracewell & Giuliani LLP, Houston, Texas, for Defendant-
Appellant Total Petrochemicals & Refining USA, Inc.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. REIBER, C.J. This interlocutory appeal requires us to examine the contours of
the “stream-of-commerce” doctrine of personal jurisdiction, which was introduced by the U.S.
Supreme Court in a 1980 decision but later divided the Court with respect to its scope.
Defendant Total Petrochemicals & Refining USA, Inc. (TPRI) challenges a decision of the
superior court, civil division, denying its motion to dismiss, for lack of personal jurisdiction,
plaintiff State of Vermont’s complaint alleging that TPRI, along with twenty-eight other
defendants, contaminated the waters of the state by introducing into those waters a gas additive
called methyl tertiary butyl ether (MTBE). We affirm.
¶ 2. In June 2014, the State filed a seventy-six-page complaint in the superior court
alleging that the decision of the twenty-nine defendants, all major oil and chemical companies, to
manufacture MTBE or to refine, blend, or supply gasoline containing MTBE, and/or to promote,
market, or distribute the sale of such gasoline, knowing that it would reach and contaminate the
waters of the State of Vermont, caused widespread degradation—as well as a threat of future
harm—to both surface water and groundwater within the state. The complaint stated that,
compared to other gasoline constituents, MTBE contaminates and spreads in water more quickly
and resists removal and treatment, thereby presenting a particularly serious threat to state waters.
The complaint also stated that defendants were aware of, but concealed, the risks associated with
using the additive in gasoline. The complaint set forth nine causes of action, including actions
for restoration of damaged natural resources and groundwater in violation of 10 V.S.A. §§ 1390
and 1410, public and private nuisance, trespass, negligence, strict liability for design defect and
failure to warn, and civil conspiracy. Among other things, the State sought compensation for
damages to natural resources and for the costs of investigating, monitoring, and remediating
those damages, as well as injunctive and equitable relief and punitive damages.
¶ 3. In August 2014, TPRI filed a motion to dismiss the complaint for lack of personal
jurisdiction, arguing that the company did not have the required minimum contacts with Vermont
and that asserting personal jurisdiction over it would violate traditional notions of fair play and
substantial justice. Along with the motion, TPRI filed an affidavit of its senior manager for
financial accounting, who averred, among other things, that: (1) TPRI is a Delaware corporation
engaged in petroleum refining and the manufacture of petrochemicals, with headquarters in
Houston, Texas, and facilities in Texas, Louisiana, Colorado, Connecticut, and Alabama; (2)
TPRI has never been registered with the Vermont Secretary of State and has never been qualified
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to do business in the State of Vermont; (3) TPRI has never maintained employees or an office in
Vermont and has never entered into a contract with any distributor for the delivery of MTBE, or
gasoline containing MTBE, into Vermont; (4) “TPRI never refined gasoline containing MTBE,
manufactured MTBE, blended MTBE, supplied gasoline containing MTBE, or otherwise made,
marketed, advertised, stored, or sold any product containing MTBE in Vermont”; and (5) from
2006 to the present, only 0.0013% of TPRI’s total revenue came from Vermont sales.
¶ 4. In its opposition to TPRI’s motion to dismiss, the State argued that TPRI should
be subject to personal jurisdiction in Vermont because it had knowingly placed its fungible
commercial products in a national distribution system that included Vermont. Along with its
memorandum of law opposing TPRI’s motion, the State submitted an affidavit of its expert, a
senior vice-president of an energy and chemicals advisory business, discussing how gasoline is
manufactured and distributed to retail gas stations in the United States and in particular the
Northeast and Vermont. The expert explained that gasoline from refineries is commingled in
pipelines and sent to various distribution centers, where it is moved by other means of
transportation to retail gas stations. The expert focused in particular on the distribution of
gasoline into the East Coast market and from there into New England and Vermont. The expert
opined that although it is impossible to determine the origin of any given gallon of gasoline
because of its fungible nature and commingling in transport, over time any supplier of gasoline
into the East Coast market will have supplied gasoline throughout the entire supply system,
including New England and Vermont.
¶ 5. Thus, according to the expert, it was “reasonable to conclude” that refiners
supplying MBTE-gasoline to the East Coast distribution system understood the fungible nature
of the gasoline they produced and the likelihood that, over time, they were supplying MTBE-
gasoline to the northern terminus of the Colonial Pipeline in New Jersey and onward to New
England and Vermont. The expert identified three activities by TPRI that linked that company to
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the supply of MTBE-gasoline in Vermont: (1) blending MTBE-gasoline in New Jersey storage
tanks, some of which was more likely than not to have ended up in Vermont; (2) manufacturing
MTBE-gasoline in its Texas refinery and shipping it on to the Colonial Pipeline, where more
likely than not some of it found its way into Vermont; and (3) selling MTBE to numerous
national gasoline marketers over a twenty-year period ending in 2007, with the reasonable
expectation that its MTBE would be distributed nationally, including in New England and
Vermont.
¶ 6. The State also argued, in the alternative, that if the superior court deemed its
submission in opposition to TPRI’s motion to dismiss insufficient for the court to exercise
personal jurisdiction over TPRI, it should be given the opportunity to engage in discovery on the
question of jurisdiction. In response to the State’s opposition to its motion, TPRI argued that the
undisputed facts and controlling law precluded the State of Vermont from asserting personal
jurisdiction over it. TPRI asked the court to deny the State’s request for discovery on the
jurisdictional question, arguing that the State was not entitled to discovery because it had failed
to make a prima facie case by asserting any specific, non-conclusory facts that could establish
personal jurisdiction.
¶ 7. Following oral argument on TPRI’s motion to dismiss, the superior court denied
the motion in a January 16, 2015 decision. The court ruled that “[b]ecause TPRI undisputedly
manufactured neat MTBE and MTBE gasoline and sold those products to national distributors
who in turn distributed those products for sale in the northeast market, including in Vermont,
TPRI has sufficient contacts with the State of Vermont for the exercise of personal jurisdiction
over it with respect to alleged injuries resulting from the sale of MTBE gasoline in Vermont.”
On May 22, 2015, in response to TPRI’s motion for reconsideration, the court reiterated that
personal jurisdiction was established in Vermont because “TPRI took active steps in sending its
products through the Colonial Pipeline from Texas to New Jersey and conducted activities in
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New Jersey that actively directed its products for distribution and use throughout the entire
northeastern United States gasoline market, including Vermont, such that it could have been
foreseen being haled into court in Vermont as a destination state.”
¶ 8. On appeal, TPRI argues that the superior court erred by denying its motion to
dismiss because neither Vermont’s long-arm statute nor established principles of federal due
process as set forth in controlling case law permit the exercise of personal jurisdiction over a
nonresident defendant based solely on either mere participation in an alleged national market or
the unilateral conduct of third parties.
¶ 9. The superior court “has discretion to decide a pretrial motion to dismiss for lack
of personal jurisdiction on the basis of affidavits alone, to permit discovery, and to conduct an
evidentiary hearing.” Godino v. Cleanthes, 163 Vt. 237, 239, 656 A.2d 991, 992 (1995). If, as
in this case, “a court chooses to rule on a motion to dismiss for lack of personal jurisdiction on
the basis of affidavits alone, the party opposing [the] motion need make only a prima facie
showing of jurisdiction, or, in other words, demonstrate facts which would support a finding of
jurisdiction.” Id. The nonmoving party’s prima facie showing must go beyond the pleadings
and rely upon specific facts set forth in the record. Schwartz v. Frankenhoff, 169 Vt. 287, 295,
733 A.2d 74, 81 (1999). “In assessing the submitted materials, the [trial] court eschews fact
finding and simply accepts properly supported proffers of evidence as true and rules on the
jurisdictional question as a matter of law.” Id. (quotation omitted). “Our review of the trial
court’s legal analysis concerning personal jurisdiction is nondeferential and plenary.” Fox v.
Fox, 2014 VT 100, ¶ 9, 197 Vt. 466, 106 A.3d 919.
¶ 10. “It is well settled that Vermont courts must have both statutory and constitutional
power to exercise personal jurisdiction over a nonresident defendant.” Id. Because “Vermont’s
long-arm statute, 12 V.S.A. § 913(b), permits state courts to exercise jurisdiction over
nonresident defendants to the full extent permitted by the [federal] Due Process Clause,” our
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statutory and constitutional analyses are the same—the jurisdictional issue is resolved under
federal constitutional law as interpreted by the U.S. Supreme Court. Id. (quotation omitted); see
also N. Aircraft, Inc. v. Reed, 154 Vt. 36, 40-41, 572 A.2d 1382, 1385-86 (1990).
¶ 11. The crux of TPRI’s argument on appeal is that recent controlling U.S. Supreme
Court case law—specifically J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 1058, 131 S. Ct. 2780
(2011) and Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115 (2014)—preclude Vermont courts
from exercising personal jurisdiction over it in this case. According to TPRI, those cases stand
for the propositions, respectively, that a defendant cannot be subjected to personal jurisdiction
based on either the mere foreseeability that its product will end up in the subject forum or the
unilateral conduct of third parties. We conclude that the governing law permits the exercise of
personal jurisdiction in Vermont under the circumstances of this case.
¶ 12. A review of the U.S. Supreme Court case law on personal jurisdiction generally
and the stream-of-commerce doctrine specifically reveals the following. “The Due Process
Clause of the Fourteenth Amendment [to the United States Constitution] limits the power of a
state court to render a valid personal judgment against a nonresident defendant.” World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). “[A] state court may exercise
personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum
contacts’ between the defendant and the forum State.” Id. (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). The concept of minimum contacts not only “protects
the defendant against the burdens of litigating in a distant or inconvenient forum,” but also “acts
to ensure that the States through their courts, do not reach out beyond the limits imposed on them
by their status as coequal sovereigns in a federal system.” World-Wide Volkswagen, 444 U.S. at
291.
¶ 13. “The limits imposed on state jurisdiction by the Due Process Clause . . . have been
substantially relaxed over the years”—a “trend” that is “largely attributable to a fundamental
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transformation in the American economy” resulting from an ever-increasing nationalization of
commerce. Id. at 292-93; see also Dall v. Kaylor, 163 Vt. 274, 277, 658 A.2d 78, 80 (1995) (“As
technology and economic practices diminish the importance of geographic boundaries, it is not
unreasonable to anticipate the expansion of personal jurisdiction to those who deliberately
transcend those boundaries in pursuit of economic gain.”). Although “ ‘foreseeability’ ” alone
has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause,” it
is not “wholly irrelevant.” World-Wide Volkswagen, 444 U.S. at 295, 297. “[T]he
foreseeability that is critical to due process analysis is not the mere likelihood that a product will
find its way into the forum State,” but rather “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
297.
¶ 14. “A court may exercise either general or specific jurisdiction over a nonresident
defendant.” Fox, 2014 VT 100, ¶ 27. Although the State in this case also argues that there is
general jurisdiction, which “applies to suits not arising out of or related to the defendant’s
contacts with the forum state,” the principal focus of its argument is on specific jurisdiction,
which requires that “a defendant has ‘purposefully directed . . . activities at residents of the
forum and the litigation results from alleged injuries that arise out of or relate to those
activities.’ ” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). Specific
jurisdiction is satisfied when a defendant has “fair warning” that a particular activity may subject
it to the jurisdiction of a state by virtue of the fact that the defendant “purposefully directed” its
activities at residents of the forum state and that the litigation results from injuries arising out of
or relating to those activities. Burger King, 471 U.S. at 472-73 (quotations omitted).
¶ 15. Therefore, “[t]he 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
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State.” World-Wide Volkswagen, 444 U.S. at 297-98 (emphasis added). On the other hand,
neither “random, fortuitous, or attenuated contacts,” Burger King, 471 U.S. at 475 (quotations
omitted), nor “the mere unilateral activity of those who claim some relationship with a
nonresident can[] satisfy the requirement of contact with the forum State,” World-Wide
Volkswagen, 444 U.S at 298 (quotation omitted).
¶ 16. Since this stream-of-commerce doctrine was established in World-Wide
Volkswagen, factions of the U.S. Supreme Court have at times set forth competing versions of
the scope of the doctrine in plurality decisions. In Asahi Metal Indus. Co., Ltd. v. Super. Ct. of
California, 480 U.S. 102 (1987), the only part of a products liability action arising from a
motorcycle accident that remained when it reached the Court was an indemnity action by one of
the foreign defendants, the maker of the motorcycle’s tire and tube, against another foreign
defendant, the maker of the tube’s valve assembly. The question presented was whether the
valve-assembly defendant’s “mere awareness . . . that the components it manufactured, sold, and
delivered outside the United States would reach the forum State in the stream of commerce
constitutes minimum contacts between the defendant and the forum State such that the exercise
of jurisdiction” did not violate due process. Asahi, 480 U.S. at 105 (quotation omitted). Noting
a disagreement among lower courts over the scope of the stream-of-commerce analysis set forth
in World-Wide Volkswagen, the four-member plurality opinion stated that personal jurisdiction
does not result from the mere placement of a product into the stream of commerce knowing that
it may wind up in the forum state, but rather requires additional conduct by the defendant such as
“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 the sales agent in a forum State.” Id.
at 112. In holding that imposing personal jurisdiction would be unreasonable and unfair, the
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plurality opinion noted that the valve-assembly defendant “did not create, control, or employ the
distribution system that brought its valves to California.” Id. at 113.
¶ 17. On the other hand, the four-member concurring opinion stated that, by requiring
conduct beyond placing goods in the stream of commerce, the plurality opinion represented a
minority view among the federal circuit courts and “a marked retreat from the analysis in World-
Wide Volkswagen.” Id. at 118 (Brennan, J., concurring). According to the concurring justices,
due process is satisfied as long as “[t]he 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,” and the defendant, “as a participant in this process is aware that the final product is
being marketed in the forum State.” Id. at 117.
¶ 18. The debate in the Supreme Court over the scope of World-Wide-Volkswagen’s
stream-of-commerce doctrine continued twenty-four years later in J. McIntyre Machinery, Ltd.
v. Nicastro. That case also involved a products liability action against a foreign manufacturer.
The Court divided once again, issuing a four-justice plurality opinion, a two-justice concurring
opinion, and a three-justice dissent. The plurality opinion reversed a decision of the New Jersey
Supreme Court concluding that the British manufacturer of scrap metal machines was subject to
personal jurisdiction in New Jersey even though it had not advertised in, sent goods to, or
otherwise particularly targeted the forum state. McIntyre, 131 S. Ct. at 2785. In so ruling, the
plurality opinion noted and rejected the broader stream-of-commerce analysis in Justice
Brennan’s concurring opinion in Asahi. Id. at 2788-89.
¶ 19. The controlling concurring opinion, authored by Justice Breyer and joined by
Justice Alito, concluded that the facts—(1) one machine sold on one occasion in New Jersey; (2)
the manufacturer’s desire to have its American distributor sell its machines to anyone in America
willing to buy them; and (3) the manufacturer’s attendance at trade shows in cities outside New
Jersey—demonstrated neither a regular flow of its product, nor a regular course of sales in New
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Jersey, nor something more such as special state-related designs or advertising. Id. at 2791-92
(Breyer, J., concurring). While joining the plurality’s mandate, the concurring opinion cited both
the plurality and concurring opinions in Asahi in support of its position. Id. at 2792. The three
dissenters, relying heavily on World-Wide Volkswagen and Justice Brennan’s concurrence in
Asahi, included an appendix demonstrating that federal and state courts confronting facts similar
to that case had “rightly rejected the conclusion that a manufacturer selling its products across
the USA may evade jurisdiction in any and all States, including the State where its defective
product is distributed and causes injury.” Id. at 2801, 2804-06 (Ginsburg, J., dissenting). While
not carrying the day in that case, the dissenters took “heart that the plurality opinion does not
speak for the Court.” Id. at 2804.
¶ 20. Hence, World-Wide Volkswagen’s stream-of-commerce analysis is the governing
law on the stream-of-commerce doctrine, given the failure of the competing factions on the U.S.
Supreme Court since that decision to garner a majority of votes to limit or expand the doctrine.
“Because neither Justice Brennan’s nor Justice O’Connor’s test garnered a majority of the votes
in Asahi, neither test prevailed as the applicable precedent.” AFTG-TG, LLC v. Nuvoton Tech.
Corp., 689 F.3d 1358, 1362 (Fed. Cir. 2012). Moreover, “the crux of Justice Breyer’s
concurrence [in McIntyre] was that the Supreme Court’s framework applying the stream-of-
commerce theory—including the conflicting articulations of that theory in Asahi—had not
changed, and that the defendant’s activities in McIntyre failed to establish personal jurisdiction
under any articulation of that theory.” Id. at 1363; see McIntyre, 131 S. Ct. at 2792 (Breyer, J.,
concurring) (stating that, on record presented, “resolving this case requires no more than
adhering to our precedents”). “Because McIntyre did not produce a majority opinion,” courts
“must follow the narrowest holding among the plurality opinions in that case,” which is J.
Breyer’s determination “that the law remains the same after McIntyre.” AFTG-TG, LCC, 689
F.3d at 1363; accord Ainsworth v. Moffett Eng., Ltd., 716 F.3d 174, 175 (5th Cir. 2013); see also
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In re Chinese-Manufactured Drywall Prods. Liab. Litig., 753 F.3d 521, 541 (5th Cir. 2014)
(stating that “the law remains the same after McIntyre, and that circuit courts may continue to
attempt to reconcile the Supreme Court’s competing articulations of the stream of commerce
test”).
¶ 21. Accordingly, we reject TPRI’s argument that both the plurality and concurring
opinions in McIntyre preclude the exercise of personal jurisdiction over a defendant based solely
on the defendant’s introduction of its product into a national distribution system aimed at
bringing the product into the forum state among others. Indeed, as noted, the fundamental
principle articulated in World-Wide Volkswagen is that although neither random nor fortuitous
acts can create personal jurisdiction, “[t]he 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.” 444 U.S. at 297-98; cf. Hedges v. W. Auto Supply Co., 161 Vt. 614, 614-15, 640
A.2d 536, 537 (1994) (stating that, even absent evidence that product was sold in Vermont,
defendant’s sale of product to distributor for national marketing, including in Vermont, was
sufficient to establish personal jurisdiction over defendant); Pasquale v. Genovese, 136 Vt. 417,
421, 392 A.2d 395, 398 (1978) (mem.) (finding personal jurisdiction based “upon the
defendant’s active, planned participation in the Vermont market, through a chain of manufacture
and distribution set up for the purpose, and through eventual sale of the [product] in Vermont”).
¶ 22. This principle was applied by the United States District Court for the Southern
District of New York in two 2005 cases involving facts similar to the instant case. The cases
concerned lawsuits in which dozens of municipalities and related entities filed actions against
hundreds of companies in the petroleum industry, alleging that the companies caused or
threatened the contamination of groundwater with the introduction of MTBE. Specifically, the
cases addressed the motions of particular defendants seeking to dismiss the lawsuits for lack of
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personal jurisdiction. In the first case, the court reviewed the two competing opinions in Asahi
construing the scope of the stream-of-commerce doctrine, but noted that neither constituted
binding decisions and that the holding and reasoning in World-Wide Volkswagen remained the
controlling law. In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., Master File
No. 1:00-1898, MDL No. 1358(SAS), No. M21-88, 2005 WL 106936, at *7-8 (S.D.N.Y. Jan. 18,
2005). Citing the regular and anticipated flow of the defendant’s product into the stream of
commerce, the court found personal jurisdiction was warranted in the forum states because the
defendant manufacturer of MTBE had created a national market for its product and had sold it to
refiners, traders, and blenders who incorporated it into their gasoline. Id. at *9. The court
reached the same conclusion with two other defendants in the second case, stating that one
defendant had “supplie[d] MTBE-containing gasoline to the national market” and thus
reasonably should have expected “its product to reach all of the states in the nation,” and that the
other defendant had produced MTBE in Texas that reached the forum states through “sales to
other refiners with nationwide distribution.” See In re Methyl Tertiary Butyl Ether (“MTBE”)
Prods. Liab. Litig., 399 F. Supp. 2d 325, 332-33 (S.D.N.Y. 2005).
¶ 23. Based on similar reasoning, given the facts of this case as they have been
developed thus far, we conclude that the superior court did not err in denying TPRI’s motion to
dismiss for lack of personal jurisdiction. In its complaint, the State alleged that TPRI was one of
twenty-nine companies that refined, marketed, or otherwise supplied, directly or indirectly,
MTBE or gasoline containing MTBE—a fungible product commingled during transport—into a
nationwide distribution system that they knew or should have known would bring their product
into Vermont. Further, the affidavit of the State’s expert in support of its opposition to TPRI’s
motion to dismiss explained that gasoline is a fungible product commingled in pipelines to
various distribution centers, including to a distribution center in New Jersey, from which
gasoline is trucked throughout New England, including Vermont. The expert also opined that
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companies such as TPRI that supply MBTE-gasoline to the East Coast distribution system do so
with the understanding that the fungible gasoline they supplied through this system was likely to
eventually end up in the Northeast, including Vermont. Rather than contest these allegations,
TPRI opposed the State’s request for discovery to prove the allegations, which describe activities
resulting in a regular and anticipated, rather than a random or fortuitous, introduction of TPRI’s
products into Vermont. The State’s complaint and accompanying affidavit are sufficient for the
superior court to exercise specific personal jurisdiction over TPRI.
¶ 24. TPRI argues that, instead of relying upon the 2005 decisions of the United States
District Court for the Southern District of New York, we should rely upon that same court’s
2014 decision in which the court granted the defendant’s motion to dismiss, for lack of personal
jurisdiction in the Commonwealth of Puerto Rico, a complaint alleging injuries resulting from
the defendant’s use and handling of MTBE. See In re Methyl Tertiary Butyl Ether (“MTBE”)
Prods. Liab. Litig., Master File No. 1:00-1898, MDL No. 1358 (SAS), No. M21-88, 2014 WL
1778984 (S.D.N.Y. May 5, 2014). The defendant in the Puerto Rico case was a Texas-based
marketer of energy products who had sold MTBE to an oil company in Oklahoma “in a series of
spot sales.” Id. at *1. In its brief analysis, the court granted the defendant’s motion to dismiss
based on the following findings and conclusions: (1) the purchasing oil company’s independent
decision to ship the MTBE to Puerto Rico did not establish jurisdiction over the defendant
because it was not foreseeable, and in any case foreseeability alone does not establish
jurisdiction; (2) no evidence showed that the defendant knew, or had any way of knowing, that
its MTBE was blended into gasoline destined for Puerto Rico; and (3) jurisdiction could not be
based on the actions of the defendant’s subsidiary company. Id. at *3-4.
¶ 25. TPRI contends that this Court should rely on this latter case—which was decided
after the U.S. Supreme Court’s decisions in McIntyre and Walden—rather than the outdated
cases decided in 2005 before those Supreme Court cases issued. The State responds to this
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argument by attempting to distinguish the 2014 case, noting that it involved “spot sales” to the
island territory of Puerto Rico, and thus the court did not consider the defendant’s distribution of
its product through a national distribution system.
¶ 26. We decline TPRI’s invitation to rely upon the Puerto Rico case. First, we note
that the brief decision did not rely upon or even cite McInytre, presumably because it recognized,
as we have here, that McIntyre did not alter previous controlling law on the stream-of-commerce
doctrine. Second, although the court cited Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115, 1122
(2014), for the proposition that personal jurisdiction may be established only by the
defendant’s—and not a third party’s—contacts with the forum state, that proposition was not
introduced in Walden, but rather was well established and in fact stated in World-Wide
Volkswagen—the very case that introduced the stream-of-commerce doctrine. See 444 U.S. at
298 (“[T]he mere ‘unilateral activity of those who claim some relationship with a nonresident
defendant cannot satisfy the requirement of contact with the forum State.’ ” (quoting Hanson v.
Denckla, 357 U.S. 235, 253 (1958))). Walden is not a stream-of-commerce case and offers little,
if anything, to the analysis here. In the end, we do not find the Puerto Rico case persuasive to
the extent that it diverges from the 2005 cases and our analysis above. We uphold the superior
court’s exercise of personal jurisdiction over TPRI based upon the company’s own conduct and
contacts with Vermont via the nationwide gasoline distribution system—pursuant to the stream-
of-commerce doctrine—not the conduct or contacts of independent third parties.
¶ 27. Finally, TPRI argues that asserting jurisdiction over it would violate traditional
notions of fair play and substantial justice. We disagree. “Once it has been decided that a
defendant purposefully established minimum contacts within the forum State, these contacts may
be considered in light of other factors to determine whether the assertion of personal jurisdiction
would comport with fair play and substantial justice.” Burger King, 471 U.S. at 476 (quotation
omitted); see N. Aircraft, 154 Vt. at 42, 572 A.2d at 1386 (same). Those factors include “the
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burden on the defendant, the forum State’s interest in adjudicating the dispute, the plaintiff’s
interest in obtaining convenient and effective relief, the interstate judicial system’s interest in
obtaining the most efficient resolution of controversies, and the shared interest of the several
States in furthering fundamental substantive social policies.” Burger King Corp., 471 U.S. at
477 (quotations omitted). “[W]here a defendant who purposefully has directed [its] activities at
forum residents seeks to defeat jurisdiction, [it] must present a compelling case that the presence
of some other considerations would render jurisdiction unreasonable.” Id. Thus, “dismissals
resulting from the application of the reasonableness test should be few and far between.” Metro.
Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 575 (2d Cir. 1996).
¶ 28. Here, TPRI argues that because it is headquartered in Texas and has no presence
in Vermont, the State’s interest in protecting its groundwater, while legitimate, “cannot
overcome TPRI’s lack of minimum contacts with Vermont.” Essentially, TPRI is still warring
with the superior court’s finding of minimum contacts, which we have upheld. This argument
falls far short of making a compelling case that it is unreasonable to force the company to litigate
in Vermont the State’s contention that TPRI’s product contaminated state waters.
Affirmed.
FOR THE COURT:
Chief Justice
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