Jennings, Pamela J. v. AC Hydraulic A/S ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2157
PAMELA J. JENNINGS, individually
and as personal representative of
the estate of JAMES R. JENNINGS,
Plaintiff-Appellant,
v.
AC HYDRAULIC A/S,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:02-cv-0256-LJM-WGH—Larry J. McKinney, Chief Judge.
____________
ARGUED NOVEMBER 4, 2003—DECIDED SEPTEMBER 2, 2004
____________
Before EASTERBROOK, ROVNER, and EVANS, Circuit Judges.
ROVNER, Circuit Judge. As James Jennings was working
under a forklift that was hoisted by a floor jack, the jack
allegedly failed and the forklift fell on Jennings and crushed
him. Jennings died as a result of this accident, and his widow
sued the manufacturer of the jack, AC Hydraulic A/S, in
2 No. 03-2157
Indiana state court.1 AC Hydraulic removed the suit to fed-
eral court on diversity grounds and later moved for dismis-
sal for lack of personal jurisdiction. The district court
granted the dismissal, and we affirm because Jennings did
not demonstrate that AC Hydraulic had sufficient contacts
with Indiana to establish personal jurisdiction.
In conjunction with AC Hydraulic’s motion to dismiss, the
parties presented the following undisputed facts about the
extent of AC Hydraulic’s contacts with Indiana. AC Hydrau-
lic manufactures various types of jacks and has its principal
place of business in Denmark. It is not an Indiana corpora-
tion, nor is it licensed to do business in the state. It does not
maintain there a registered agent for service of process, an
office, a telephone listing, a bank account, property, or any
employees. AC Hydraulic distributes more than 80% of its
products in the world export markets. As for distribution in
the United States, on occasion AC Hydraulic has sold its
products to two distributors in Florida, but the record does
not contain any information on the volume of sales to these
distributors nor precisely where the distributors resell the
products. AC Hydraulic maintains a website (www.ac-
hydraulic.com) with English translations that is accessible
throughout the United States. On the website AC Hydraulic
provides contact information and descriptions of its various
product lines, but consumers cannot order its products via
this website. Mrs. Jennings alleged that Mr. Jennings’s
employer, an Indiana corporation named BGM Equipment,
purchased the jack at issue in this suit, but she did not cite
to any affidavits or other evidence to substantiate this
assertion or present any further details on this alleged
purchase (such as where, when, and from whom). She also
1
Mrs. Jennings also sued the alleged distributor of the jack,
Stertil-Koni, USA, Inc., but it was dismissed from the suit during
the state court proceedings based on the stipulation of the parties.
Accordingly, we have removed Stertil-Koni from our caption.
No. 03-2157 3
identified the serial number on the jack, but did not present
any tracking information based on this serial number.
As noted above, the district court dismissed Jennings’s
suit for lack of personal jurisdiction over AC Hydraulic.
Personal jurisdiction determines, in part, where a plaintiff
may hale a defendant into court. Once a defendant moves
to dismiss for lack of personal jurisdiction, as AC Hydraulic
did here, the plaintiff bears the burden of demonstrating
the existence of jurisdiction. Purdue Research Found. v.
Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003).
In diversity cases, such as this one, a federal court must
determine if a court of the state in which it sits would have
personal jurisdiction over the defendant. Id. at 779. Thus,
the jurisdictional inquiry begins with an application of the
statutory law of the forum state, in this case, Indiana’s equiv-
alent of a long-arm statute, Trial Rule 4.4(A). Id. Although
we recognize that Jennings gave only cursory treatment to
this issue in her opening brief on appeal, we will assume, as
did the district court, that AC Hydraulic’s conduct was
sufficient to establish personal jurisdiction under Indiana’s
long-arm statute. We move to the principal issue that the
parties contest on appeal—whether exercising personal juris-
diction in Indiana over AC Hydraulic comports with due
process.
Due process limits when a state may exercise personal
jurisdiction over nonresident defendants. Asahi v. Metal
Indus. Co. v. Superior Court of California, 480 U.S. 102, 108
(1987); World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 291 (1980). This limitation allows potential defendants to
structure their contacts with different forums so as to plan
where their business activities will and will not render
them liable to suit. See Burger King Corp. v. Rudzewicz, 471
U.S. 462, 472-73 (1985); World-Wide Volkswagen, 444 U.S.
at 297. Personal jurisdiction comes in two forms (so-called
“general” and “specific” jurisdiction), Helicopteros
Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408 (1984),
4 No. 03-2157
and Jennings argues that a court in Indiana may exercise
specific jurisdiction over AC Hydraulic because the basis for
the suit arises out of or is related to AC Hydraulic’s contacts
with Indiana, namely, the manufacture and distribution of
the jack that is alleged to have contributed to Mr. Jennings’s
death. To establish specific jurisdiction under the familiar
“minimum contacts” analysis, a plaintiff must show that the
defendant has purposefully availed itself of the privilege of
conducting activities within the forum state, Asahi, 480
U.S. at 108-09; Hanson v. Denckla, 357 U.S. 235, 253
(1958), and that the exercise of personal jurisdiction over
that defendant would comport with “traditional notions of
fair play and substantial justice,” Asahi, 480 U.S. at 113;
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). In
this case, Jennings relies on two main theories in an effort
to establish specific jurisdiction in Indiana over AC Hydraulic:
(1) AC Hydraulic advertised its products to consumers in
the United States, including Indiana residents, by main-
taining an English-translated website, and (2) AC Hydraulic
sold some of its products to distributors in Florida, thus
placing them in the “stream of commerce” of the U.S. mar-
ket, which includes Indiana.
Jennings’s first argument, that personal jurisdiction may be
premised on the maintenance of Internet sites, sweeps too
broadly. Other circuits have recognized that the operation
of an “interactive” website, such as one (although this is not
an exclusive definition) on which consumers can order the
defendant’s goods or services, may subject a defendant to
the exercise of personal jurisdiction (either specific or
general). See, e.g., Carefirst of Maryland, Inc. v. Carefirst
Pregnancy Centers, Inc., 334 F.3d 390, 399 (4th Cir. 2003);
Bridgeport Music, Inc. v. Still N the Water Publ’g, 327 F.3d
472, 483 (6th Cir. 2003) (per curiam); Gorman v. Ameritrade
Holding Corp., 293 F.3d 506, 513 (D.C. Cir. 2002). We need
not decide in this case what level of “interactivity” is suf-
ficient to establish personal jurisdiction based on the opera-
No. 03-2157 5
tion of an interactive website. Rather, it is enough to say
that this logic certainly does not extend to the operation of
a “passive” website, such as the one that AC Hydraulic main-
tains, which merely makes available information about the
company and its products. The exercise of personal jurisdiction
based on the maintenance of a passive website is impermis-
sible because the defendant is not directing its business
activities toward consumers in the forum state in particular.
Cf. Burger King, 471 U.S. at 476 (explaining that personal
jurisdiction may be established without showing physical
presence of defendant in forum state as long as its business
activities are “purposefully directed” toward consumers in
that state). With the omnipresence of the Internet today, it
is unusual to find a company that does not maintain at
least a passive website. Premising personal jurisdiction on
the maintenance of a website, without requiring some level
of “interactivity” between the defendant and consumers in
the forum state, would create almost universal personal
jurisdiction because of the virtually unlimited accessibility
of websites across the country. See ALS Scan, Inc. v. Digital
Serv. Consultants, Inc., 293 F.3d 707, 712-13 (4th Cir. 2002).
This scheme would go against the grain of the Supreme
Court’s jurisprudence which has stressed that, although
technological advances may alter the analysis of personal
jurisdiction, those advances may not eviscerate the constitu-
tional limits on a state’s power to exercise jurisdiction over
nonresident defendants. See Hanson, 357 U.S. at 250-51; see
also ALS, 293 F.3d at 711. This court has never addressed
this argument as applied to passive websites, but we now join
the several circuits that have addressed and rejected it, see,
e.g., ALS, 293 F.3d at 714; Soma Med. Int’l v. Standard
Chartered Bank, 196 F.3d 1292, 1297 (10th Cir. 1999); Mink
v. AAAA Dev. LLC, 190 F.3d 333, 337 (5th Cir. 1999), and
hold that a defendant’s maintenance of a passive website
does not support the exercise of personal jurisdiction over
that defendant in a particular forum just because the
website can be accessed there. Thus, the district court in this
6 No. 03-2157
case concluded correctly that AC Hydraulic’s maintenance
of a passive website did not contribute to Jennings’s effort
to establish specific jurisdiction in Indiana.
Jennings’s second argument, that AC Hydraulic should be
subject to specific jurisdiction in Indiana because it placed
its products in the “stream of commerce,” is equally unper-
suasive. If a defendant delivers products into a stream of
commerce, originating outside the forum state, with the
awareness or expectation that some of the products will be
purchased in the forum state, that defendant may be sub-
ject to specific jurisdiction in the forum state. See World-
Wide Volkswagen, 444 U.S. at 297-98; Dehmlow v. Austin
Fireworks, 963 F.2d 941, 946-47 (7th Cir. 1992).2 In World-
Wide Volkswagen, the Supreme Court held that personal
jurisdiction was lacking because, in part, there was no
evidence in the record that any products that the defendants
distributed (in that case, automobiles) were ever sold to retail
customers in the forum state. 444 U.S. at 298. Similarly in
this case, Jennings produced no evidence that any of AC
Hydraulic’s products (including the jack at issue in this suit)
were ever sold in Indiana. Jennings claims that an Indiana
company purchased the jack, but even if we were to accept
this unsubstantiated allegation as evidence, Jennings does
not tell us in what state or from whom this company pur-
chased the jack. Additionally, Jennings established that AC
Hydraulic sells some of its products to two distributors in
2
We note that the Supreme Court’s decision in Asahi, 480 U.S. at
111, left open the question whether a plaintiff making a stream-of-
commerce argument needs to make an additional showing that
the defendant purposefully directed its business activities toward
the forum state. We need not resolve this question, however, be-
cause Jennings has not made the threshold showing—there is no
evidence, as we explain below, that AC Hydraulic had an aware-
ness or expectation that some of its products would be purchased
in Indiana.
No. 03-2157 7
Florida, but she did not present any volume information for
these sales or provide us with information about where the
distributors resell the products, so the scope of any alleged
distribution in the rest of the United States, and whether
any AC Hydraulic products have been distributed in
Indiana, cannot be determined. The bottom line is that,
relying on the sparse evidence that Jennings presented, we
do not know how the jack in question got to Indiana, or if
any other AC Hydraulic products have ever been sold there.
It is possible that the “unilateral activity” of a third party,
rather than the defendant’s distribution scheme, landed the
jack in Indiana, which is the very scenario that doomed the
plaintiffs’ case in World-Wide Volkswagen. Id.With the free flow of commerce within the United States
today, it may seem counterintuitive that a foreign manufac-
turer, such as AC Hydraulic, who sells goods to a distrib-
utor in the United States should not be assumed to have the
expectation that its goods may end up for sale in any one of
the fifty states. But the Supreme Court stressed in World-
Wide Volkswagen that, although the United States was meant
to be a “common market,” state lines are not “irrelevant for
jurisdictional purposes.” Id. at 293. For this reason, at least
in diversity cases,3 personal jurisdiction may not be exer-
cised over a nonresident defendant unless “minimum contacts”
between the particular state in which the court sits and the
defendant have been established. See Burger King, 471 U.S.
at 474 (“Notwithstanding these considerations [involving
modern transportation and communication], the constitutional
3
We note that Fed. R. Civ. P. 4(k)(2) allows courts to exercise
personal jurisdiction “over the person of any defendant who is not
subject to the jurisdiction of the courts of general jurisdiction of
any state” for claims arising under federal law. We do not consider
here, however, whether it would be permissible to apply this theory
of “nationwide contacts” to diversity cases, such as this one, be-
cause the parties have not argued for any such extension.
8 No. 03-2157
touchstone remains whether the defendant purposefully
established ‘minimum contacts’ in the forum State.”). In
this case, Jennings did not meet her burden of demonstrat-
ing that AC Hydraulic had sufficient contacts with Indiana
and, consequently, the district court properly dismissed her
suit for lack of personal jurisdiction.
There is one final issue left to address—Jennings’s bare-
bones suggestion that, if she did not succeed in establishing
personal jurisdiction over AC Hydraulic in Indiana, the
district court should have transferred the suit to another
forum (such as a federal court in Florida) rather than dis-
miss her suit. AC Hydraulic argues that Jennings waived
this request by failing to move for transfer before the district
court and by failing to develop her argument on appeal.
Even if the district court should have considered transfer
sua sponte, see, e.g., Phillips v. Seiter, 173 F.3d 609, 610-11
(7th Cir. 1999), we cannot find error with the district court’s
judgment because Jennings has not explained why it would
be permissible for another forum, such as a court in Florida,
to exercise personal jurisdiction over AC Hydraulic. See DDI
Seamless Cylinder Int’l, Inc. v. Gen. Fire Extinguisher Corp.,
14 F.3d 1163, 1168 (7th Cir. 1994) (“An issue must be
pressed, must be argued and supported; a bare conclusion is
not enough.”); United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir. 1991) (per curiam) (“A skeletal ‘argument,’ really
nothing more than an assertion, does not preserve a
claim. . . . Judges are not like pigs, hunting for truffles
buried in briefs.”). For instance, Jennings has not analyzed
whether AC Hydraulic’s contacts with Florida would be
sufficient to exercise personal jurisdiction under Florida’s
long-arm statute. Additionally, Jennings has not pointed to
any evidence showing that AC Hydraulic sold, in particular,
the jack at issue in this suit to one of the distributors in
Florida (or, alternatively, has not argued that it is sufficient
that AC Hydraulic sold similar jacks to the distributors in
Florida or that general jurisdiction is permissible). It is
No. 03-2157 9
possible, for example, that AC Hydraulic sold the jack to a
distributor in Canada or Mexico and, thereafter, the jack
ended up in Indiana without any contact with Florida.
Finally, Jennings has not alleged that dismissal will result
in harm, such as her being barred from refiling the suit in
a court in Florida by the relevant statutes of limitations. In
fact, we note that Indiana law provides for what it calls a
“Journey’s Account Statute,”4 Ind. Code § 34-11-8-1, that
extends any relevant limitations period so as to preserve
the option to refile suit should a plaintiff fail, based on
grounds such as lack of jurisdiction, before an adjudication
of the suit’s merits (with certain exceptions not relevant
here). See Cox v. Amer. Aggregates Corp., 684 N.E.2d 193,
195 (Ind. 1997) (“[T]he statute enables an action dismissed
for lack of personal jurisdiction in one state to be refiled in
another state despite the intervening running of the statute
of limitations.”); McGill v. Ling, 801 N.E.2d 678, 683-84 (Ind.
Ct. App. 2004). A court in Florida likely would apply this
Indiana law because Florida’s choice-of-law doctrine
employs a “significant relationship” test in deciding which
state’s statute of limitations to apply. Because the jack
allegedly contributed to Mr. Jennings’s death in Indiana,
this test likely would dictate that a court in Florida apply
Indiana’s law that extends any limitations period. See
Fulton County Adm’r v. Sullivan, 753 So. 2d 549, 552-53
(Fla. 1999) (per curiam) (applying another state’s statute
that tolls limitations period); Merkle v. Robinson, 737 So. 2d
540, 542 (Fla. 1999) (per curiam).
4
The law is called the “Journey’s Account Statute” because, at
common law, suits often were dismissed on technical grounds. In
such cases, the plaintiff could file a writ known as a Journey’s
Account to preserve the cause of action. Then, the time to renew
suit was computed theoretically with reference to the time nec-
essary for plaintiff ’s counsel to journey to the proper court to re-
file. McGill, 801 N.E.2d at 683.
10 No. 03-2157
To summarize, the district court properly dismissed
Jennings’s suit because she had not established personal
jurisdiction in Indiana over AC Hydraulic, and neither the
record nor the equities supports the transfer of her suit to
a federal court in Florida.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-2-04